cases2 Flashcards
Gloria J. Mercado was appointed as Group Manager for Policy and Planning of PEZA on September 16, 1998, on a temporary basis. On May 16, 1999, she was promoted to the position of Deputy Director General for Policy and Planning, with the annotation that she had no security of tenure unless she obtained CESO or CSEE eligibility. CESO is the acronym for Career Executive Service Officer, while CSEE is the acronym for Career Service Executive Eligibility. On June 1, 2000, the PEZA Board terminated Mercado’s appointment and appointed Wilhelm G. Ortaliz, a CESO eligible, as Deputy Director General for Policy and Planning.
Mercado filed a petition with the RTC of Pasay City, questioning her termination and the appointment of Ortaliz. She argued that her MNSA degree automatically conferred CES eligibility, and that R.A. 8748, which amended the PEZA Charter, did away with the CES eligibility requirement for the position of Deputy Director General. The trial court dismissed Mercado’s petition, holding that the CES eligibility requirement still applied. The court also found that Mercado’s MNSA degree did not automatically confer CES eligibility.
Mercado appealed to the Court of Appeals, which reversed the trial court’s decision. The appellate court held that Mercado, as a permanent appointee, cannot be summarily removed. It also ruled that her MNSA degree conferred CES eligibility and that R.A. 8748 removed the eligibility requirement for the position of Deputy Director General. The appellate court ordered Mercado’s reinstatement but denied her claim for damages.
whether Gloria J. Mercado’s termination as Deputy Director General for Policy and Planning in the PEZA Board of Directors was valid due to her lack of CES eligibility.
Security of tenure in the career executive service, which presupposes a permanent appointment, takes place upon passing the CES examination administered by the CES Board.It is that which entitles the examine to conferment of CES eligibility and the inclusion of his name in the roster of CES eligibles. Under the rules and regulations promulgated by the CES Board, conferment of the CES eligibility is (MEMO)
done by the CES Board through a formal board resolution
after an evaluation has been done of the examines performance in the four stages of the CES eligibility examinations.
Upon conferment of CES eligibility and compliance with the other requirements prescribed by the Board, an incumbent of a CES position may qualify for appointment to a CES rank.
Appointment to a CES rank is made by the President upon the Boards recommendation. It is this process which completes the officials membership in the CES and confers on him security of tenure in the CES.
Petitioner does not seem to have gone through this definitive process. (Amores vs. Civil Service Commission, G.R. No. 170093, April 29, 2009)
Clearly, for an examinee or an incumbent to be a member of the CES and be entitled to security of tenure, she/he must pass the CES examinations,be conferred CES eligibility, comply with the other requirements prescribed by the CES Board, and be appointed to a CES rank by the President.
In this case, the respondent did not undergo the required stages of the CES eligibility examinations before or during her tenure as Deputy Director General.
Respondent Roco was appointed by then President Ramos in 1996 as Regional Director of the LTO in Region V, a position equivalent to CES rank level V and later reappointed by then President Estrada to the same position in 1999.
At the time Roco’s appointment in 1996 and 1999, he was not a CES eligible. However, during his incumbency in 1999, he was conferred CES eligibility by the CESB.
On September 7, 1999, petitioner Luis Mario General, who is not a CES eligible, was appointed by President Estrada as Regional Director of the LTO in Region V, the same position being occupied by Roco. Pursuant thereto, DOTC Undersecretary Coloma as OIC issued a Memorandum directing General to assume the said office immediately and for Roco to report to the Office of the Secretary for further instructions.
Roco filed before the CA a petition for quo warranto which was affirmed by the latter and ordered the nullification of General’s appointment. From this decision General filed a petition for review against Roco. The latter contends that CES eligibility is enough to acquire security of tenure which grants him the right to hold the position disputed.m
Decide.
No. Section 27 (1), of the Civil Service Law (Subtitle A, Tittle I, Book V of E.O. No. 292), provides that:
(1) Permanent status. - A permanent appointment shall be issued to a person who meets all the requirements for the position to which he is being appointed, including the appropriate eligibility prescribed, in accordance with the provisions of law, rules and standards promulgated in pursuance thereof.
(Same to prior case) In the career executive service, the acquisition of security of tenure which presupposes a permanent appointment is governed by the rules and regulations promulgated by the CES Board, thus: Career Executive Service Eligibility Passing the CES examination entitles the examinee to a conferment of a CES eligibility and the inclusion of his name in the roster of CES eligibles. Conferment of CES eligibility is done by the Board through a formal Board Resolution after an evaluation is done of the examinees performance in the four stages of the CES eligibility examinations.
Appointment to CES Rank Upon conferment of a CES eligibility and compliance with the other requirements prescribed by the Board, an incumbent of a CES position may qualify for appointment to a CES rank. Appointment to a CES rank is made by the President upon the recommendation of the Board. This process completes the official’s membership in the CES and most importantly, confers on him security of tenure in the CES.
As clearly set forth in the foregoing provisions, two requisites must concur in order that an employee in the career executive service may attain security of tenure, to wit:
a) CES eligibility; and
b) Appointment to the appropriate CES rank.
(VVIP) In addition, it must be stressed that the security of tenure of employees in the career executive service pertains only to rank and not to the office or to the position to which they may be appointed. Thus, a career executive service officer may be transferred or reassigned from one position to another without losing his rank which follows him wherever he is transferred or reassigned.
In the case at bar, there is no question that respondent Ramon S. Roco, though a CES eligible, does not possess the appropriate CES rank, which is - CES rank level V, for the position of Regional Director of the LTO (Region V). Falling short of one of the qualifications that would complete his membership in the CES, respondent cannot successfully interpose violation of security of tenure. Accordingly, he could be validly reassigned to other positions in the career executive service.
Employee positions in the Metropolitan Cebu Water District (MCWD) were re-classified during the latter part of 1995 to conform with position descriptions and corresponding salary grades in the civil service.
Accordingly, while the personnel structure of the MCWD was being modified, three of its employees, petitioners Asela B. Montecillo, Marilou Joan V. Ortega and Charrishe Dosdos, applied for promotional appointment to the position of “Secretary to the Assistant General Manager” or “Private Secretary C”, as the position later came to be known.
At the time of their application, petitioners had been occupying the position of “Department Secretary” and were employed in the MCWD for six to seven years.
When their appointment was forwarded to the CSC Field Office, the latter refused to approve the appointments of the petitioners on the ground that the position was a “primarily confidential” and “co-terminous” position.
In its Resolution No. 972512, respondent based its conclusions on CSC Memorandum Circular No. 22, Series of 1991:
“However, it is noted that there are also Private Secretary positions found in the Offices of officials not mentioned in Section 9, Chapter 2, Book V of Executive Order No. 292 but whose duties likewise required utmost confidentiality.
For consistency and uniformity, it is hereby declared, pursuant to Resolution No. 91-676, that all Private Secretary positions irrespective of their locations are primarily confidential in nature. The term of office of the appointees to said positions shall be coterminous with the official they serve.”
This ruling was upheld by the CSC Regional Office and affirmed on appeal by the respondent.
o. In the present case, there is no clear and persuasive showing that respondent grossly abused its discretion or exceeded its powers when it issued the assailed circular.
On the contrary, respondent CSC was expressly empowered to declare positions in the Civil Service as may properly be classified as primarily confidential under Section 12, Chapter 3, Book V of the Administrative Code of 1987.
This signifies that the enumeration found in Section 6, Article IV of the Civil Service Decree, which defines the non-career service, is not an exclusive list.
The respondent could supplement the enumeration, as it did when it issued Memorandum Circular No. 22, s. of 1991, by specifying positions in the civil service, which are considered primarily confidential and therefore their occupants are co-terminous with the official they serve.
The assailed memorandum circular cannot be deemed as an unauthorized amendment of the law.
Norberto A. Orcullo, Jr. was employed as a Project Manager IV by the Coordinating Council of the Philippine Assistance Program (CCPAP)-BOT Center on a contractual basis. His employment was co-terminous with the project, which was set to end on January 30, 2000. However, on September 23, 1996, Orcullo received a memorandum terminating his employment effective September 30, 1996. Orcullo appealed his dismissal to the Civil Service Commission (CSC), but his appeal was dismissed. The CSC found that Orcullo’s appointment was contractual and co-terminous, and therefore, he was not protected by the security of tenure clause of the Constitution. The CSC also found that Orcullo’s termination was valid due to his unsatisfactory performance. Orcullo filed a motion for reconsideration, which was denied by the CSC. He then filed a petition for review with the Court of Appeals, but his petition was dismissed.
No, The Court based its decision on the fact that Orcullo’s employment was contractual and co-terminous with the project, which means that his employment was only valid until the project’s completion. As such, Orcullo’s employment fell under the non-career service classification, which does not enjoy the same tenurial security rights as career service employees. It also found that Orcullo’s employment contract clearly stated that his employment could be terminated sooner, indicating that he served at the pleasure of the appointing authority. The Court also considered the CSC’s finding that Orcullo’s termination was valid due to his unsatisfactory performance. This finding further supported the dismissal of Orcullo’s petition. Additionally, the Court emphasized that Orcullo was not deprived of due process as he was given the opportunity to be heard during the proceedings.
The petitioner is PAGCOR. They brought Administrative charges against Respondent Carlos P. Rilloraza, a casino operations manager of PAGCOR, on November 5, 1997, FOR DGCL
for dishonesty, grave misconduct, conduct prejudicial to the best interest of the service and
loss of confidence due to various alleged acts including failure to prevent irregularities and violations of casino regulations.
Rilloraza facilitated the issuance of personal checks by a small-time financier/player during his shift on October 9, 1997, which were not authorized by senior management.
He also allowed a top-ranking officer to exceed betting limits and play beyond allowable time limits.
Rilloraza defended himself, stating he was not familiar with the systems and relied on assurances from colleagues regarding the legitimacy of the transactions or that the bet was not his but that of the customer.
Despite his explanation, the PAGCOR Board dismissed Rilloraza and others on December 2, 1997, citing dishonesty, grave misconduct, conduct prejudicial to service, and loss of confidence.
Petitioner argues that the respondent is a primarily confidential employee. Hence, he holds office at the pleasure of the appointing power and may be removed upon the cessation of confidence in him by the latter. Such would not amount to a removal but only the expiration of his term.
Rilloraza appealed to the Civil Service Commission, which found him guilty of simple neglect of duty and imposed a one-month suspension, modifying PAGCOR’s decision.
The Court of Appeals affirmed the Commission’s resolution, ordering Rilloraza’s reinstatement with full back wages and benefits, which PAGCOR sought to appeal but was denied.
WON the position of the respondent is classified as confidential appointee? No
Ruling: The issue at hand revolves around whether the position of the respondent can be classified as a confidential appointee. Prior to the enactment of the Civil Service Act of 1959, there were two recognized instances when a position could be considered primarily confidential:
either by explicit declaration from the President based on the recommendation of the Commissioner of Civil Service, or
by the nature of the functions of the office which ensured a close intimacy between the appointee and appointing power without fear of betrayal or breach of trust.
While it may seem initially that the respondent’s position falls under the first category due to a provision in Presidential Decree No. 1869, a closer examination suggests otherwise. The court, referencing the case of Piero vs. Hechanova, asserts that it’s not merely the designation but the nature of the duties that determines a position’s confidentiality status. Moreover, the court emphasizes that regardless of classification (confidential, policy-determining, or highly technical), employees are still entitled to security of tenure, and legislative declarations are not conclusively binding on the courts.
In the present case, the respondent’s duties involve significant responsibilities, requiring both ability and dependability. However, the court finds that the level of trust required does not meet the threshold for a primarily confidential position. Notably, the hierarchical structure of the organization suggests a lack of direct proximity between the respondent and the appointing power, further undermining the assertion of confidentiality in the respondent’s role.
WON the respondent is guilty of misconduct or conduct prejudicial to the best interest of the service? No.
Ruling: SC finds that the Civil Service Commission did not err in declaring that Rilloraza was liable only for simple neglect of duty. In the first place, there is no evidence to sustain the charges against him.
Misconduct in office has been authoritatively defined by Justice Tuazon in Lacson v. Lopez in these words: “Misconduct in office has a definite and well-understood legal meaning. By uniform legal definition, it is a misconduct such as affects his performance of his duties as an officer and not such only as affects his character as a private individual. In such cases, it has been said at all times, it is necessary to separate the character of the man from the character of the officer . . . . It is settled that misconduct, misfeasance, or malfeasance warranting removal from office of an officer, must have direct relation to and be connected with the performance of official duties amounting either to maladministration or willful, intentional neglect and failure to discharge the duties of the office . . . .
Differently propounded in Canson v. Garchitorena, et al., 26 misconduct is “any unlawful conduct on the part of a person concerned in the administration of justice prejudicial to the rights of parties or to the right determination of the cause. It generally means wrongful, improper or unlawful conduct motivated by a premeditated, obstinate or intentional purpose. The term, however, does not necessarily imply corruption or criminal intent. On the other hand, the term ‘gross’ connotes something ‘out of all measure; beyond allowance; not to be excused; flagrant; shameful’.” From the facts given, absent is that element of intent to do wrong against petitioner.
In this case, he is only liable for simple neglect based on the following instances:
Rilloraza intervened when he noticed Syhongpan gambling and accepted Syhongpan’s explanation that he was playing on behalf of a customer, Ms. Castillo, who was present.
Rilloraza believed in good faith that Syhongpan was not gambling for himself but for Ms. Castillo, thus justifying his actions.
Rilloraza did not personally profit from the situation, as evidenced by his refusal of any “balato” (tip) offered by Syhongpan and his return of the money.
Rilloraza exercised caution and discretion in facilitating a transaction involving a personal check for chips, verifying its validity with appropriate authorities before approving it.
The court deemed Rilloraza’s conduct as not constituting misconduct or being prejudicial to the best interest of the service, as defined by legal standards.
Good faith was attributed to Rilloraza’s actions, leading to a modified penalty imposed by the Civil Service Commission, which was affirmed by the Court of Appeals.
Eduardo de los Santos, the petitioner, was appointed City Engineer of Baguio on July 16, 1946, by the President, appointment which was confirmed by the Commission on Appointments on August 6, and on the 23rd of that month, he qualified for and began to exercise the duties and functions of the position.
On June 1, 1950, Gil R. Mallare was extended an ad interim appointment by the President to the same position, after which, on June 3, the Undersecretary of the Department of Public Works and Communications directed Santos to report to the Bureau of Public Works for another assignment Santos refused to vacate the office, and when the City Mayor and the other officials named as Mallare’s co-defendants ignored him and paid Mallare the salary corresponding to the position, he commenced these proceedings.
ISSUE: Whether or not the petitioner’s position of City Engineer is one within the authority of the President to remove at his pleasure.
No, because the office of city engineer is neither primarily confidential, policy-determining, nor highly technical.
The Constitution allows dismissal at pleasure of officers and employees in the three specified classes of positions – policy-determining, primarily confidential, and highly technical
The Office of the City Engineer is none of these three.
Not confidential- It does not have a primarily close intimacy which insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state.
Not Policy-determining- Nor is the position of city engineer policy-determining. A city engineer does not formulate a method of action for the government or any of its subdivisions. His job is to execute policy, not to make it.
Not Highly technical- Furthermore, a city engineer is not required nor is he supposed to possess a technical skill or training in the supreme or superior degree, which is the sense in which “highly technical” is, we believe, employed in the Constitution. There are hundreds of technical men in the classified civil service whose technical competence is not lower than that of a city engineer.
As a matter of fact, the duties of a city engineer are eminently administrative in character and could very well be discharged by nontechnical men possessing executive ability.
n 1960, Petitioner Melania C. Salazar was appointed by the Auditor General as “confidential agent” in the Office of the Auditor General, GSIS
She was appointed several times accompanied with several increase in her annual compensation (last appointment was to take effect on july 1, 1965)
On March 18, 1966, petitioner received a notice from the Auditor General that her services as “confidential agent” had been terminated as of the close of office hours on March 31. 1966.
On March 31, 1966, the Auditor General issued an appointment to petitioner Melania C Salazar as Junior Examiner in his office.
On December 27, 1966, petitioner wrote to the Commissioner of Civil Service requesting that she be reinstated to her former position as “confidential agent” in the Office of the Auditor, GSIS. However, no action was taken on said letter.
Petitioner filed a case of mandamus in the supreme court for the reinstatement as “confidential agent”. The case was dismissed without prejudice
Petitioner later filed another case in the Court of first instance
No. services of “confidential agents” can be terminated any time at the pleasure of the appointing power. The term of a confidential officer is not pre-fixed, but indefinite, at the time of his appointment, and becomes fixed and determined when the appointing power expresses its decision to put an end to the services of the incumbent. When this event takes place, the latter is not “removed” or “dismissed” from office his term has merely “expired”. Her position being primarily confidential, petitioner cannot complain that the termination of her services as confidential agent is in violation of her security of tenure.
But even granting for the sake of argument that petitioner’s position was not primarily confidential and that therefore her removal from said position was in violation of her security of tenure, she is still not entitled for reinstatement because of her abandonment of her former position. The Court held that abandonment of an office by reason of the acceptance of another, in order to be effective and binding should spring from and be accompanied by deliberation and freedom of choice, either to keep the old office or renounce it for another. In the instant case, the day after her services as “confidential agent” were terminated, petitioner accepted unqualifiedly the position of Junior Examiner in the same office. She took her oath of office, performed the duties thereof and received her
April 1991 - Gonzales was appointed as provincial administrator of the Province of Camarines Norte by then-Governor Roy Padilla with her appointment on a permanent capacity.
March 1999 - the then-Governor Jess Pimentel sent Gonzales a memorandum to explain why administrative charges should not be filed against her for “gross insubordination/discourtesy in the course of official duties” and “conduct grossly prejudicial to the best interest of the service”
After Gonzales submitted her comment, an Ad Hoc Investigation Committee found her guilty of the charges against her. Therefore, on September 1999, Gov. Pimentel dismissed Gonzales.
This decision of Gov. Pimentel was subsequently appealed to the Civil Service Commission (CSC), which issued a Resolution, which mmodified the earlier decision, found Gonzales guilty of insubordination and suspended Gonzales for 6 months.
Upon motion for execution, CSC through a Resolution directed the reinstatement of Gonzales upon clarification of service of the 6-month suspension. Gov. Pimentel reinstated Gonzales, however she was dismissed the next day for “lack of confidence”.
Gov. Pimentel then wrote to the CSC of his compliance to the CSC’s order and Gonzales’ subsequent dismissal as a confidential employee, citing an earlier CSC Resolution where the CSC held that the position of provincial administrator was highly confidential and coterminous in nature.
The CSC responded with another Resolution which directed Gonzales’ reinstatement, stating that while the Local Government Code, RA 7160, made the position of provincial administrator coterminous and highly confidential in nature, the conversion cannot operate to prejudice officials who were already issued permanent appointments as administrators prior to the effectivity of the LGC.
Gonzales had acquired a vested right to her permanent appointment and is entitled to continue holding the office despite its subsequent classification. The conversion should not jeopardize Gonzales’ security of tenure guaranteed to her by the Constitution
Therefore, as a permanent appointee, Gonzales may only be removed for cause, after due notice and hearing. Loss of trust and confidence is not among the grounds for a permanent appointee’s dismissal or discipline under existing laws.
However, in a letter dated February 2005, Gonzales wrote to the CSC alleging that the then incumbent Governor, Jesus Typoco, Jr., refused to reinstate her. Hence, the CSC made another Resolution which ordered Gonzales’ reinstatement to the provincial administrator position, or to an equivalent position.
The Province, through Gov. Typoco, filed a petition for review with the CA. However, the CA sided with CSC and Gonzales, citing Aquino v. Civil Service Commission, which stated that an appointee acquires a legal right to his position once he assumes a position in the civil service under a completed appointment.
CA enumerated the list of valid causes for a public officer’s removal under Section 46, Book V, Title I, Subtitle A of the Revised Administrative Code and noted that lack of confidence was not in the list.
The CA further held that Gonzales’ dismissal was illegal because it was done without due process. The proceedings under Administrative Case No. 001 cannot be the basis for complying with the requirements of due process because they are separate and distinct from the proceedings in the present controversy. Thus, Gonzales was illegally terminated when she was dismissed for lack of confidence, without any hearing, the day after she was reinstated.
- WON Congress has reclassified the provincial administrator position as a primarily confidential, non-career position.
- WON Congress’ reclassification of the provincial administrator position in RA 7160 is a valid exercise of legislative power that does not violate Gonzales’ security of tenure -
Held:
1. YES. The provincial administrator position has been classified into a primarily confidential, non-career position when Congress, through RA 7160, made substantial changes to it.
First, prior to RA 7160, Batas Pambansa Blg. 337, the old Local Government Code (LGC), did not include a provincial administrator position among the listing of mandatory provincial officials, but empowered the Sangguniang Panlalawigan to create such other offices as might then be necessary to carry out the purposes of the provincial government
RA 7160 made the position mandatory for every province.
In introducing the mandatory provincial administrator position, RA 7160 also amended the qualifications for the provincial administrator position.
RA 7160 made the provincial administrator position coterminous with its appointing authority, reclassifying it as a non-career service position that is primarily confidential.
To emphasize the close relations that the provincial administrators’ functions have with the office of the governor, RA 7160 even made the provincial administrator position coterminous with its appointing authority.
This provision, along with the interrelations between the provincial administrator and governor under Section 480, renders clear the intent of Congress to make the provincial administrator position primarily confidential under the noncareer service category of the civil service.
o Section 480 of RA 7160 made the provincial administrator’s functions closely related to the prevailing provincial administration by identifying the incumbent with the provincial governor to ensure the alignment of the governor’s direction for the province with what the provincial administrator would implement. In contrast with the general direction provided by the provincial governor under the Manual of Position Descriptions cited in Laurel, Section 480(b) of RA 7160 now mandates constant interaction between the provincial administrator and the provincial governor.
- YES. The position of provincial administrator has been re-classified into a primarily confidential, non-career position upon the passage of RA 7160, or the Local Government Code (LGC) which took effect in January 1992. In making the position mandatory for all provinces, the LGC also amended the qualifications for the position. Further to this, the LGC made the provincial administrator position co-terminous with its appointing authority, reclassifying it as a non-career service position that is primarily confidential.
Arguments:
* Province of Camarines Norte: Gonzales lost her security of tenure when the provincial administrator position became a primarily confidential position.
* Gonzales: The conversion of the position should not be retroactively applied to her, as she is a permanent appointee.
* CA and CSC: Gonzales acquired a vested legal right over her position from the moment she assumed her duties as provincial administrator. Thus, she cannot be removed from office except for cause and after due hearing; otherwise, such removal would amount to a violation of her security of tenure.
Congress has the power and prerogative to introduce substantial changes in the provincial administrator position and reclassify it as a primarily confidential, noncareer service position. When done in good faith, these acts would not violate a public officer’s security of tenure, even if they result in his removal from office or the shortening of his term. Modifications in public office, such as changes in qualifications or shortening of its tenure, are made in good faith so long as they are aimed at the office and not at the incumbent.
In the current case, Congress, through RA 7160, did not abolish the provincial administrator position but significantly modified many of its aspects. It is now a primarily confidential position under the non-career service tranche of the civil service. This change could not have been aimed at prejudicing Gonzales, as she was not the only provincial administrator incumbent at the time RA 7160 was enacted. Rather, this change was part of the reform measures that RA 7160 introduced to further empower local governments and decentralize the delivery of public service. Section 3 (b) of RA 7160 provides as one of its operative principles.
Re: Security of Tenure
➢ The Court noted that both career and non-career service employees have a right to security of tenure.
➢ All permanent officers and employees in the civil service, regardless of whether they belong to the career or non-career service category, are entitled to this guaranty; they cannot be removed from office except for cause provided by law and after procedural due process.
➢ The concept of security of tenure, however, operates under a different rule for primarily confidential employees due to the nature of a “primarily confidential” position.
➢ Serving at the confidence of the appointing authority, the primarily confidential employee’s term of office expires when the appointing authority loses trust in the employee.
o When this happens, the confidential employee is not “removed” or “dismissed” from office. The term merely “expires” and the loss of trust and confidence is the “just cause” provided by law that results in the termination of employment.
o In the case of Gonzales, where the trust and confidence has been irretrievably “eroded”, Gov. Pimentel only exercised his discretion when he decided that he could no longer entrust his confidence in Gonzales.
o Gonzales has security of tenure, but only as a primarily confidential employee.
Acting Mayor Erlindo Grafilo suspended petitioner Elias V. Pacete as City Attorney for a period of ten (10) days effective July 11, 1972. Finally, on July 20, 1972, notice was served on petitioner that he had been removed as the City Attorney of General Santos City on the ground of loss of confidence. Ostensibly, the Acting Mayor’s loss of confidence in petitioner was the result of the legal opinion of the latter impugning the authority of Acting Mayor Grafilo to act as such and upholding the authority of Mayor Acharon to discharge the functions of the Office of the Mayor even while the latter was in prison.
On October 15, 1974, petitioner filed the present petition with essentially the following prayers: (1) payment of backwages from the time petitioner was suspended on July 11, 1972 until the final termination of his case; and (2) payment by respondent City Auditor Miguel Penalosa, Jr. of damages for his refusal to pass in audit petitioner’s claim for backwages. He did not pray for reinstatement.
ISSUE: WON Pacete’s termination is valid on grounds of loss of confidence. (YES)
It is to be understood that officials and employees holding primarily confidential positions continue only for so long as confidence in them endures. The termination of their official relation can be justified on the ground of loss of confidence because in that case their cessation from office involved no removal but merely the expiration of the term of office two different causes for the termination of official relations recognized in the law of Public Officers.
The Court, after a careful consideration of the instant case, finds no cogent reason to depart from the ruling of the aforecited cases that the position of Legal Counsel or City Attorney is confidential in nature, for which loss of confidence is a valid ground for termination. Hence, the Court must rule that petitioner is not entitled to the backwages claimed. Moreover, having determined the legality of petitioner’s termination from service as City Attorney, the Court must likewise hold that respondent City Auditor Miguel Peñalosa Jr. cannot be held liable for damages since his refusal to pass in audit petitioner’s claim for backwages was pursuant to a lawful order made by the respondent Acting Commissioner on Audit.
Petitioner was employed as Administrative Officer of CCMC, formerly known as the Cebu City Hospital, operated and maintained by the local government of Cebu City, while private respondent was Administrative Officer of the City Health Department detailed at the hospital.
The Cebu City Mayor appointed private respondent to the position of Asst. Chief of Hospital for Administration of CCMC. Petitioner protested the appointment before the Regional Office of the Civil Service Commission (CSC), however, this was indorsed to the Office of the City Mayor, which in turn was referred to the Office of the City Attorney, which dismissed the protest and upheld the appointment of private respondent. Dismissal was affirmed by the CSC RO, and later on appeal, by the respondent CSC. Hence, this petition, wherein petitioner contends that the appointment of private respondent was made in violation of the law, existing civil service rules and established jurisprudence.
Issue/s:
WON the position of Asst. Chief of Hospital for Administration was legally created? (Yes)
WON there was a qualification standard nor valid screening procedure? (Yes.)
WON the seniority and next – in – rank rules were disregarded? (No.)
Ruling/s:
Yes. Ordinance No. 1216 amended the charter of the Cebu City Hospital for the purpose of correcting the deficiencies and improving the performance of said institution, with which its name was changed to CCMC, and the departments and the offices were reorganized, and the Office of Hospital Administrator was created and granted such powers as were deemed in line with the objectives of the Ordinance.
The City Mayor appointed private respondent to the position of Hospital Administrator, however, it was not acted upon by the CSC but returned to the appointing authority for lack of the screening requirement, thus, the City Mayor withdrew her appointment. The title of Hospital Administrator was later found to be a misnomer and thus, was properly classified by the Joint Commission on Local Government Personnel Administration.
The position of Assistant Chief of Hospital for Administration is the very same position of Hospital Administrator created by Ordinance No. 1216. The Office of Hospital Administrator was not extinguished, but the designation thereof merely corrected to reflect the proper classification of the position.
Yes. As a result of the reclassification, candidates to the position, among whom were petitioner and private respondent, were notified by the Personnel Selection Board (Board) of the screening. The notice sent to the petitioner at 9:30 AM may have been too close for comfort to the 10:00 AM schedule, but the screening was reset to the following day. Petitioner however never appeared before the Board. Neither did he appear, despite due notice, at the final selection process.
The fact that private respondent was actually screened and interviewed by the Board does not mean that her appointment was a fait accompli. The screening was just a stage in the appointment process.
Private respondent and petitioner are college degree holders with three units in Public Administration and three years experience in Hospital Administration or Health Administration. Indeed, both candidates possess the minimum qualifications for the position. The determination, however, who among the qualified candidates should be preferred belongs to the appointing authority. The Mayor of Cebu City, in the instant case, chose to appoint private respondent.
No. The “next in rank” rule specifically applies only in cases of promotion. The instant controversy, however, involves a new office and a position created in the course of a valid reorganization. Under the law, a vacancy not filled by promotion may be filled
by transfer of present employees in the government service,
by reinstatement,
by reemployment of those separated from the service, and
appointment of outsiders who have appropriate civil service eligibility, but not necessarily in this order.
It cannot be said that private respondent was an outsider. Although directly employed by the City Health Department, she actually worked at the CCMC prior to her appointment, even if she was an outsider, the law does not prohibit the employment of persons from the private sector so long as they have the appropriate civil service eligibility.
Assuming nonetheless that a vacancy actually occurred that can be filled up only by promotion, the concept of “next in rank” does not impose any mandatory or peremptory requirement to appoint the person occupying the next lower position in the occupational group of the office. What the Civil Service Law and the Administrative Code of 1987 provide is that if a vacancy is filled up by the promotion, the person holding the position next in rank thereto “shall be considered for promotion.” In other words, one who is “next in rank” to a vacancy is given preferential consideration for promotion to the vacant position, but it does nor necessarily follow that he alone and no one else can be appointed.
An appointment, whether to a vacancy or to a newly created position, is essentially within the discretionary power of whomsoever it is vested. Once a candidate possesses the minimum qualities required by law, sufficient discretion, if not plenary, is granted to the appointing authority. Indeed, whom to appoint among those qualified is an administrative question involving considerations of wisdom for the best interest of the service which only the appointing authority can decide.
