Dimayuga vs. Benedicto II

A permanent appointment to a Career Executive Service position may be issued only to a person who meets all the requirements for that position, including the prescribed CES eligibility; absent such eligibility, the appointment is merely temporary and confers no security of tenure, which in the CES attaches to the rank conferred by the President rather than to the particular position held. Section 4 of CSC Memorandum Circular No. 21, which preserves the permanent status of incumbents of positions declared CES for the first time under that circular, does not aid an incumbent whose position had already been classified as CES before the circular's issuance.

The Career Executive Service constitutes the third level of the Philippine civil service, composed of positions performing executive or managerial functions and occupied by officials who must possess the corresponding CES eligibility. The Toll Regulatory Board is a government agency whose Executive Director II position was, at the time of petitioner's appointment, outside that coverage. The dispute turns on the interplay among the constitutional guaranty of security of tenure, the requirement under the Administrative Code of 1987 that a permanent appointment be extended only to one who meets all the requirements of the position including the appropriate eligibility, and the Civil Service Commission's guidelines on CES coverage.

On October 26, 1992, then Secretary of Public Works and Highways Jose P. de Jesus issued a permanent appointment in favor of Ma. Chona M. Dimayuga as Executive Director II of the Toll Regulatory Board. As the Board's highest-ranking working official, she exercised powers of control and supervision over its three divisions — the Finance and Administrative Division, the Technical Division, and the Engineering Division — oversaw the Board's build-operate-and-transfer projects such as the Metro Manila Skyway Project and the Manila-Cavite Tollway Project, and participated in the negotiations for the Manila-Subic Expressway Project and the South Luzon Tollway Extension Project. At the time of her appointment, the position of Executive Director II was not deemed part of the Career Executive Service; it was included therein only on June 4, 1993.

On May 31, 1994, the Civil Service Commission issued Memorandum Circular No. 21, Section 4 of which provides that incumbents of positions declared to be Career Executive Service positions for the first time pursuant to that resolution who hold permanent appointments thereto shall remain under permanent status in their respective positions, but that upon promotion or transfer to other CES positions they shall be under temporary status until they qualify. Petitioner alleged that during her tenure she became the subject of several administrative and criminal complaints designed to coerce her removal.

On the strength of these complaints, respondent former DPWH Secretary Gregorio R. Vigilar issued a first ninety-day suspension order against petitioner on November 28, 1997. Upon the expiration of that suspension, a second ninety-day suspension order dated March 26, 1998 was issued against her, this time by then Executive Secretary Alexander Aguirre; petitioner contested the second suspension order before the Office of the President. On the expiration of the second suspension order, she re-assumed her duties on June 25, 1998. The following day, Vigilar issued Department Order No. 85, series of 1998, by virtue of which petitioner was temporarily detailed at the Office of the Secretary of the DPWH, and concurrently addressed to her a Memorandum dated June 26, 1998 directing her to report to the Legal Service of the Department to assist in the evaluation of appealed cases and the preparation of corresponding decisions involving the implementation of P.D. No. 1096, the National Building Code of the Philippines, and other cases that might be assigned to her. As a gesture of protest, petitioner filed a leave of absence until September 30, 1998 rather than assume a position she considered a demotion.

On September 28, 1998, while she was on leave, petitioner received a letter dated September 22, 1998 from respondent Vigilar informing her that then President Joseph E. Estrada had appointed respondent Mariano E. Benedicto II in her stead as Executive Director II of the Board. The letter cited a Memorandum dated June 30, 1998 issued by then Executive Secretary Ronaldo B. Zamora addressed to all heads of departments, agencies, and offices, declaring that non-career officials or personnel, or those occupying political positions, are deemed co-terminous with the outgoing Administration and shall vacate their positions effective July 1, 1998 and turn over their offices to the highest ranking career officials, unless otherwise specifically retained by the department heads concerned or extended new appointments by the President. Earlier, in response to petitioner's letter dated December 1, 1998 requesting clarification of her status, the Career Executive Service Board had replied in a letter dated December 15, 1998 that it had always been the Board's stand to respect or honor the appointment status of an official appointed to a position subsequently included in the CES, such that if the appointment was of a permanent status or nature, the inclusion of the position in the CES is not deemed to have changed the status of the appointee.

Having been effectively removed from her position, petitioner filed a petition for quo warranto before the Court of Appeals. The appellate court dismissed the suit, finding as matters of fact that petitioner had been appointed in a permanent capacity in 1992 when the position was excluded from the CES coverage, that she was not a CESO and lacked the required eligibility for the position, and that the subsequent inclusion of her position under the CES did not automatically qualify her for it.

• Vested Right to the Position: Petitioner argued that the Court of Appeals committed a serious and grave error in law in holding that she has no vested right to the position in question, her permanent appointment of October 26, 1992 having fixed her status notwithstanding the subsequent inclusion of the position in the CES.
• Executive Power of Appointment and Removal: Petitioner maintained that the Court of Appeals erred in holding that her refusal to vacate her position ran counter to the power of appointment and removal of the President.
• Security of Tenure: Petitioner argued that the Court of Appeals erred in rejecting her claim to security of tenure, relying on Section 4 of CSC Memorandum Circular No. 21 — which provides that incumbents of positions declared CES for the first time who hold permanent appointments thereto shall remain under permanent status — and on the CESB letter dated December 15, 1998 recognizing that the inclusion of a position in the CES does not change the status of a permanently appointed incumbent.
• Dismissal of the Quo Warranto Petition: Petitioner argued that the Court of Appeals erred in dismissing the petition for quo warranto she had filed.
• Damages and Attorney's Fees: Petitioner argued that the Court of Appeals erred in failing to award her moral damages, exemplary damages, attorney's fees, and litigation expenses.

• Vested Right to the Position: Whether petitioner acquired a vested right to the position of Executive Director II of the Toll Regulatory Board.
• Executive Power of Appointment and Removal: Whether petitioner's refusal to vacate her position ran counter to the power of appointment and removal of the President.
• Security of Tenure: Whether petitioner is entitled to security of tenure in the contested position.
• Dismissal of the Quo Warranto Petition: Whether the Court of Appeals erred in dismissing petitioner's petition for quo warranto.
• Damages and Attorney's Fees: Whether petitioner is entitled to moral damages, exemplary damages, attorney's fees, and litigation expenses.

• Vested Right to the Position: No. A permanent appointment to a CES position requires the prescribed CES eligibility, which petitioner did not possess; her appointment was at best temporary and could be withdrawn at will by the appointing authority.
• Executive Power of Appointment and Removal: No. Petitioner's insistence on retaining the post could not prevail against the appointing authority's prerogative, her appointment being merely temporary.
• Security of Tenure: No. Security of tenure in the CES attaches to rank, not to position, and petitioner was not even a CESO eligible; Section 4 of CSC Memorandum Circular No. 21 did not apply because her position had been classified CES on June 4, 1993, before the circular issued on May 31, 1994.
• Dismissal of the Quo Warranto Petition: No. The petition was devoid of merit, petitioner having failed to establish any right to the contested office.
• Damages and Attorney's Fees: No. The denial of the petition for lack of merit disposed of all the grounds raised, including the claim for damages, attorney's fees, and litigation expenses, no basis for such awards having been established.

• Vested Right to the Position: Under the Administrative Code of 1987, 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. Petitioner, although appointed in a permanent capacity on October 26, 1992, never obtained CES eligibility. Achacoso vs. Macaraig settled that a permanent appointment can be issued only to a person who meets all the requirements for the position, including the appropriate eligibility prescribed; that a person who does not have the requisite qualifications cannot be appointed to the position in the first place or, only as an exception to the rule, may be appointed to it merely in an acting capacity in the absence of appropriate eligibles; and that the appointment extended to him cannot be regarded as permanent even if it may be so designated. The mere fact that a position belongs to the Career Service does not automatically confer security of tenure on its occupant even if he does not possess the required qualifications; such right depends on the nature of his appointment, which in turn depends on his eligibility or lack of it. Petitioner therefore acquired no vested right to the office.

• Executive Power of Appointment and Removal: Because petitioner's appointment was merely temporary, it could be withdrawn at will by the appointing authority and "at a moment's notice," conformably to established jurisprudence. Her refusal to vacate could not be sustained against the President's power of appointment, which includes the power of removal, over a position she held without the requisite eligibility.

• Security of Tenure: Cuevas vs. Bacal laid down two salient points. First, in order to qualify an appointment as permanent, the appointee must possess the rank appropriate to the position; failure in this respect renders the appointment merely temporary. Second, security of tenure in the CES is acquired with respect to rank and not to position — the guaranty does not extend to the particular positions to which CES members may be appointed, a concept applicable only to first- and second-level employees in the civil service, but to the rank to which they are appointed by the President. If a career executive officer's security of tenure pertains only to his rank and not to his position, with greater reason petitioner, who is not even a CESO eligible, has no security of tenure with regard to the position of Executive Director II, which was classified as part of the CES on June 4, 1993, prior to the issuance of CSC Memorandum Circular No. 21 on May 31, 1994. De Leon vs. Court of Appeals is more appropriate and applicable: the private respondent therein, like petitioner, was not a career executive service officer yet was issued a permanent appointment to a CES position, and his reassignment was sustained because non-eligibles holding permanent appointments to CES positions were never meant to remain immobile in their status, their lack of eligibility not being a premium vesting them with permanency in CES positions, a privilege even their eligible counterparts do not enjoy. Section 4 of Memorandum Circular No. 21 does not assist petitioner, because it refers to incumbents of positions declared to be CES positions "for the first time pursuant to this resolution," whereas her position was classified as part of the CES a year earlier, on June 4, 1993, by virtue of Presidential Decree No. 1 dated September 24, 1972, adopting the Integrated Reorganization Plan as part of the law of the land. Upon closer scrutiny, Section 4 also appears to contradict the principle laid down in Achacoso vs. Macaraig three years before the circular issued. The Civil Service Commission's contrary opinion in its reply letter dated December 15, 1998 therefore loses persuasion and applicability.

• Dismissal of the Quo Warranto Petition: Petitioner is not a CESO eligible and holds no permanent appointment to the contested position; she has no right to the office that quo warranto may vindicate, and her petition is devoid of merit.

• Damages and Attorney's Fees: The denial of the petition for lack of merit disposed of all the assigned errors, including the fifth ground seeking moral damages, exemplary damages, attorney's fees, and litigation expenses; no legal or factual basis for such awards was established.

• Security of tenure in the Career Executive Service attaches to rank, not to position — The guaranty of security of tenure of members of the Career Executive Service does not extend to the particular positions to which they may be appointed — a concept applicable only to first- and second-level employees in the civil service — but to the rank to which they are appointed by the President. The Court applied the doctrine a fortiori: if a career executive officer's tenure pertains only to his rank and not to his position, then petitioner, who is not even a CESO eligible, has no security of tenure with respect to the position of Executive Director II.
• Permanent appointment requires possession of all the requirements of the position, including the prescribed eligibility — Under the Administrative Code of 1987, a permanent appointment shall be issued to a person who meets all the requirements for the position, including the appropriate eligibility prescribed. A person lacking the requisite qualifications cannot be appointed in the first place or, only as an exception, may be appointed merely in an acting capacity in the absence of appropriate eligibles; the appointment cannot be regarded as permanent even if so designated. Because petitioner lacked CES eligibility, her appointment to the CES position was merely temporary and could be withdrawn at will by the appointing authority.
• Mere classification of a position as belonging to the Career Service does not automatically confer security of tenure — Such right depends on the nature of the occupant's appointment, which in turn depends on his eligibility or lack of it. The inclusion of the position of Executive Director II in the CES on June 4, 1993 did not convert petitioner's appointment into a permanent one.
• Non-eligibles holding permanent appointments to CES positions were never meant to remain immobile — Their lack of eligibility cannot be a premium vesting them with permanency in CES positions, a privilege even their eligible counterparts do not enjoy. Consequently, a non-eligible may be transferred or reassigned without violating the constitutional guaranty of security of tenure.
• Section 4 of CSC Memorandum Circular No. 21 is limited to positions declared CES for the first time pursuant to that resolution — The provision preserves the permanent status only of incumbents of positions declared CES for the first time under the circular. It does not cover an incumbent whose position had already been classified as CES before the circular's issuance, and it appears to contradict the rule in Achacoso vs. Macaraig.

• "It is settled that a permanent appointment can be issued only 'to a person who meets all the requirements for the position to which he is being appointed, including the appropriate eligibility prescribed.' Achacoso did not. At best, therefore, his appointment could be withdrawn at will by the appointing authority and 'at a moment's notice,' conformably to established jurisprudence." — This passage, quoted from Achacoso vs. Macaraig, supplies the ratio decidendi on the nature of a permanent appointment and the consequence of its absence; it is the doctrinal anchor for the denial of petitioner's claim to the office.
• "The mere fact that a position belongs to the Career Service does not automatically confer security of tenure on its occupant even if he does not possess the required qualifications. Such right will have to depend on the nature of his appointment, which in turn depends on his eligibility or lack of it. A person who does not have the requisite qualifications for the position cannot be appointed to it in the first place or, only as an exception to the rule, may be appointed to it merely in an acting capacity in the absence of appropriate eligibles. The appointment extended to him cannot be regarded as permanent even if it may be so designated." — The canonical formulation of the rule that CES coverage alone does not vest tenure, repeatedly cited in later cases on career executive service appointments.
• "Second, security of tenure in the career executive service ('CES') is thus acquired with respect to rank and not to position. The guaranty of security of tenure to members of the career executive service does not extend to the particular positions to which they may be appointed - a concept which is applicable only to first and second-level employees in the civil service - but to the rank to which they are appointed by the President." — The Court's reiteration of the second salient point in Cuevas vs. Bacal, which it applied a fortiori against petitioner, a non-eligible.
• "As correctly pointed out by the Solicitor General, non-eligibles holding permanent appointments to CES positions were never meant to remain immobile in their status. Otherwise, their lack of eligibility would be a premium vesting them with permanency in the CES positions, a privilege even their eligible counterparts do not enjoy." — This passage from De Leon vs. Court of Appeals, adopted as "more appropriate and applicable to the case at bar," explains why a non-eligible incumbent may be removed or reassigned without offending security of tenure.

• Achacoso vs. Macaraig, 195 SCRA 235, 239-240 (1991) — Controlling precedent. The Court held that Section 4 of CSC Memorandum Circular No. 21 appears to contradict the principle laid down in Achacoso three years before the circular issued, and quoted Achacoso's ruling that a permanent appointment can be issued only to one who meets all the requirements of the position, including the prescribed eligibility, and that a defective appointment may be withdrawn at will by the appointing authority.
• Cuevas vs. Bacal, G.R. No. 139382, December 6, 2000 — Doctrinal case relied upon and reiterated. It supplied the two salient points applied against petitioner: that the appointee must possess the rank appropriate to the position for the appointment to be permanent, and that security of tenure in the CES is acquired with respect to rank and not to position.
• De Leon vs. Court of Appeals, G.R. No. 127182, January 22, 2001 — Precedent expressly held "more appropriate and applicable to the case at bar." It sustained the reassignment of a non-eligible holding a permanent appointment to a CES position, on the ground that non-eligibles were never meant to remain immobile and that their lack of eligibility should not operate as a premium conferring permanency.

• Section 4, CSC Memorandum Circular No. 21 (May 31, 1994) — The provision relied upon by petitioner, preserving the permanent status of incumbents of positions declared CES for the first time pursuant to that resolution. It was held inapplicable because petitioner's position had been classified CES on June 4, 1993, a year before the circular issued, and because it appears to contradict Achacoso vs. Macaraig.
• Administrative Code of 1987 (on permanent appointments) — Cited in the assailed decision and adopted by the Court: 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 law, rules, and standards. Petitioner, lacking CES eligibility, could not be considered a permanent appointee.
• Presidential Decree No. 1 (September 24, 1972) — Adopted the Integrated Reorganization Plan as part of the law of the land and furnished the legal basis for the June 4, 1993 classification of the position of Executive Director II as part of the Career Executive Service, which predated CSC Memorandum Circular No. 21.
• Memorandum dated June 30, 1998 of Executive Secretary Ronaldo B. Zamora — Declared non-career officials or personnel, or those occupying political positions, co-terminous with the outgoing Administration and required them to vacate their positions effective July 1, 1998 unless otherwise retained or given new appointments. It was cited in the letter informing petitioner of respondent Benedicto's appointment; the Court's ruling, however, rested on petitioner's lack of CES eligibility rather than on this issuance.

Bellosillo, Mendoza, Quisumbing, and Buena, JJ.