Ong vs. Office of the President

An appointment that is both temporary (for lack of the required civil service eligibility) and co-terminous with the appointing authority does not confer security of tenure, and the appointee may be removed or replaced at the pleasure of the appointing authority at any time, with or without cause and without prior notice. In a quo warranto action, the petitioner must prove a clear legal right to the contested office; the lack of eligibility of the replacement is immaterial if the petitioner himself had no vested right to the position.

Samuel B. Ong joined the National Bureau of Investigation as a career employee in 1978 and held progressively higher positions, serving as NBI Director I from July 1998 to February 1999, Director II from February 1999 to September 2001, and Director III from September 6, 2001. His appointment as Director III was expressly “co-terminus with the appointing authority,” the President of the Philippines. Ong never possessed Career Executive Service (CES) eligibility. Following the 2004 presidential elections, NBI Director Reynaldo Wycoco issued Memorandum Circular No. 02-S.2004 informing Ong that his co-terminous appointment would end at midnight on June 30, 2004, and that unless a new appointment was issued by the President, he would occupy the position in a de facto/hold-over status. On December 1, 2004, President Gloria Macapagal-Arroyo appointed Victor A. Bessat as NBI Director III, replacing Ong.

• Nature of Appointment: Ong was appointed NBI Director III on September 6, 2001, by the President. His appointment paper stated the position was “co-terminus with the appointing authority.” At all material times, Ong did not possess CES eligibility.
• The June 30, 2004 Memorandum: On June 3, 2004, NBI Director Reynaldo Wycoco issued Memorandum Circular No. 02-S.2004 to Ong and other officials, informing them that their co-terminous appointments ended effectively at midnight on June 30, 2004, consistent with the expiration of the President’s term. The memorandum stated that unless a new appointment was issued by the President, their services would lapse into a de facto/hold-over status.
• Appointment of Replacement: On December 1, 2004, President Arroyo appointed Victor A. Bessat as NBI Director III, replacing Ong. Bessat was notified on December 17, 2004. Wycoco subsequently notified Ong by Notice dated December 20, 2004 to cease performing the functions of Director III effective December 17, 2004. Ong received the notice only on January 27, 2005.
• Allegations of Malice: Ong alleged that Wycoco’s issuance of the memorandum was motivated by malice and revenge because Ong had led NBI employees in holding rallies in July 2003 to publicly denounce Wycoco.
• Procedural Background: Ong filed a petition for quo warranto with the Court of Appeals, asserting a right to the office until the end of the President’s six-year tenure on June 30, 2010. The appellate court denied the petition, holding that Ong’s temporary and co-terminous appointment carried no security of tenure and his replacement was a valid exercise of the President’s discretion.

• Validity of Removal by Wycoco: Petitioner maintained that the power of removal is lodged exclusively in the appointing authority. Wycoco, not the President, issued MC No. 02-S.2004, and thus acted beyond his authority in effectively removing Ong. The issuance was allegedly motivated by malice and revenge due to Ong’s leadership of employee rallies against Wycoco. Consequently, Bessat’s assumption of the position was null and void, as the office was still occupied by Ong.
• Nature of Co-terminous Appointment: Petitioner argued that the Court of Appeals erroneously equated an appointment co-terminous with the tenure of the appointing authority with one held at the pleasure of the appointing authority. Citing Alba v. Evangelista, petitioner distinguished “term” (the period during which an officer may claim the office as of right) from “tenure” (the period the incumbent actually holds the office). Ong contended his appointment was co-terminous with the President’s tenure, which ended in 2010, not 2004, and he could not be removed without just cause before that date.
• Constitutional Protection: Petitioner invoked Section 2(b), Article IX-G of the 1987 Constitution (correctly, Section 2(3), Article IX-B) and Jocom v. Regalado to argue that government employees in both career and non-career service are entitled to protection from arbitrary removal or suspension. Given Ong’s rise from the ranks since 1978, it would be improper to infer that the President acted in bad faith by converting a promotional appointment into one removable at pleasure.

• No Removal; Mere Reminder: The Office of the Solicitor General (OSG) argued that Wycoco’s MC No. 02-S.2004 did not remove Ong; it merely informed him that after June 30, 2004, his appointment would lapse into a de facto/hold-over status unless he was re-appointed. Ong’s colleagues applied for re-appointment, and Bessat was in fact re-appointed as Director II on August 13, 2004, before his later appointment as Director III.
• Nature of Appointment: The OSG maintained that Ong’s replacement was consistent with Aklan College v. Guarino and with Sections 13 and 14, Rule V of CSC Resolution No. 91-1631. A person without appropriate civil service eligibility can only hold a temporary appointment. A co-terminous appointment with the appointing authority, as defined in Section 14(2), is not permanent and carries no security of tenure.
• Abandonment of Security of Tenure: The OSG claimed that when Ong accepted promotional appointments within the Career Executive Service without the required eligibility, he became a temporary employee and impliedly abandoned any right to security of tenure he may have had as a career service employee.

• Validity of Removal: Whether the issuance of MC No. 02-S.2004 by NBI Director Wycoco constituted an unlawful removal of Ong from the position of NBI Director III.
• Curing of Defect: Whether any defect in Wycoco’s act was cured by the subsequent appointment of Bessat by the President.
• Security of Tenure: Whether Ong, who lacked CES eligibility and held an appointment co-terminous with the appointing authority, had security of tenure and could be replaced only for cause.
• Effect of Expiration of Term: Whether Ong was entitled to remain in office until June 30, 2010, the end of the President’s six-year tenure, on the ground that his appointment was co-terminous with the President’s tenure and not merely her term.

• Validity of Removal: MC No. 02-S.2004 did not remove Ong from the position of Director III. The memorandum merely informed him that records showed his co-terminous appointment had lapsed into a de facto/hold-over status and apprised him of the consequences of that status.
• Curing of Defect: Even assuming arguendo that Wycoco’s issuance of MC No. 02-S.2004 amounted to a removal, the defect was cured when the President herself, the appointing authority, appointed Bessat as NBI Director III on December 1, 2004, thereby effectively revoking Ong’s appointment.
• Security of Tenure: Ong lacked the required CES eligibility for the position of Director III, rendering his appointment temporary. His appointment was also co-terminous with the appointing authority, falling under Section 14(2) of the Omnibus Rules Implementing Book V of the Administrative Code and Section 14(2) of Rule V, CSC Resolution No. 91-1631, which define such appointments as co-existent with the tenure of the appointing authority or at his pleasure. A temporary and co-terminous appointment vests no security of tenure and may be revoked by the President even without cause and at a moment’s notice, following Amores v. Civil Service Commission, Mita Pardo de Tavera v. Philippine Tuberculosis Society, Inc., Decano v. Edu, and Carillo v. Court of Appeals. In a quo warranto proceeding, the petitioner must prove a clear legal right to the office; absent that right, the lack of qualification or eligibility of the replacement is immaterial.
• Effect of Expiration of Term: Neither the Omnibus Rules nor CSC Resolution No. 91-1631 draws a material distinction between “term” and “tenure” for co-terminous appointments; the terms are used loosely and interchangeably. Whether the President’s term ended in 2004 or her tenure extended to 2010, the President retained the power to revoke Ong’s temporary and co-terminous appointment at any time. The appointment of Bessat as Director III effectively revoked Ong’s appointment, rendering the term/tenure distinction immaterial to the outcome.

• Temporary Appointment in the Career Executive Service — An appointment in the CES is permanent only if the appointee meets all requirements, including the appropriate CES eligibility. Where a non-CES eligible is appointed to a CES position, the appointment is at best merely temporary, conditioned on subsequent obtention of the required eligibility. A temporary appointee may be removed even without cause and at a moment’s notice. (Amores v. Civil Service Commission)
• Co-terminous Appointment — An appointment co-terminous with the appointing authority, as defined under Section 14(2) of the Omnibus Rules Implementing Book V of the Administrative Code and Section 14(2), Rule V of CSC Resolution No. 91-1631, is one co-existent with the tenure of the appointing authority or at his pleasure. Such appointment is in essence temporary and the appointee serves at the pleasure of the appointing authority. The replacement of an incumbent holding such an appointment constitutes not a removal but an expiration of term, requiring no prior notice, due hearing, or cause. (Mita Pardo de Tavera v. Philippine Tuberculosis Society, Inc.)
• Security of Tenure in the CES — Security of tenure in the career executive service presupposes a permanent appointment, which takes place only upon passing CES examinations and appointment to the appropriate CES rank. Even a CES eligible’s security of tenure pertains to rank, not to the specific office or position held. (General v. Roco; Amores v. CSC)
• Burden in Quo Warranto — In a quo warranto proceeding filed by a private person in his own name, the petitioner must prove a clear right to the controverted office. If the petitioner fails to establish such right, the respondent is entitled to undisturbed possession of the office, and the lack of qualification or eligibility of the supposed usurper is immaterial. (Mendoza v. Allas; Carillo v. CA)
• Power of Appointment and Removal — Appointment is an essentially discretionary executive power. The appointing authority may choose whom to appoint so long as the appointee possesses the minimum qualifications required by law; questions of comparative qualification are political questions beyond judicial review. The power of removal, being lodged in the appointing authority, may be exercised by revoking a temporary appointment at will; any defect in a subordinate’s act relating to removal is cured by the appointing authority’s subsequent action.

• “It is established that no officer or employee in the Civil Service shall be removed or suspended except for cause provided by law. However, this admits of exceptions for it is likewise settled that the right to security of tenure is not available to those employees whose appointments are contractual and co-terminous in nature.”
• “An appointment is permanent where the appointee meets all the requirements for the position to which he is being appointed, including the appropriate eligibility prescribed, and it is temporary where the appointee meets all the requirements for the position except only the appropriate civil service eligibility. … Verily, it is clear that the possession of the required CES eligibility is that which will make an appointment in the career executive service a permanent one.” (Amores v. CSC, as quoted)
• “One who holds a temporary appointment has no fixed tenure of office; his employment can be terminated at the pleasure of the appointing authority, there being no need to show that the termination is for cause.” (Carillo v. CA, as quoted)
• “In a quo warranto proceeding, the person suing must show that he has a clear right to the office allegedly held unlawfully by another. Absent that right, the lack of qualification or eligibility of the supposed usurper is immaterial.”

• Amores v. Civil Service Commission, G.R. No. 170093, April 29, 2009 — Followed and extensively quoted; established that a non-CES eligible holding a CES position has only a temporary appointment and no security of tenure.
• Mita Pardo de Tavera v. Philippine Tuberculosis Society, Inc., 197 Phil. 919 (1982) — Followed; an appointment held at the pleasure of the appointing power is temporary; replacement is expiration of term, not removal, requiring no prior notice or cause.
• Carillo v. Court of Appeals, No. L-24554, May 31, 1967 — Followed; a temporary appointee has no fixed tenure and can be terminated at the pleasure of the appointing authority without showing cause; burden on quo warranto petitioner to prove clear right to office.
• Decano v. Edu, 187 Phil. 754 (1980) — Followed; acceptance of a temporary appointment divests the appointee of the right to security of tenure against removal without cause.
• General v. Roco, 403 Phil. 455 (2001) — Cited; security of tenure in CES requires both CES eligibility and appointment to appropriate CES rank.
• Civil Service Commission v. Engineer Ali Darangina, G.R. No. 167472, January 31, 2007 — Cited for the rule that replacement of a non-eligible temporary appointee by another non-eligible is not prohibited.

• Section 2(3), Article IX-B, 1987 Constitution — Provides that no officer or employee of the civil service shall be removed or suspended except for cause provided by law. Held: Inapplicable to temporary and co-terminous appointments, which are exceptions to the security of tenure guarantee.
• Section 14, Omnibus Rules Implementing Book V of the Revised Administrative Code of 1987 — Defines co-terminous appointments, classifying those co-terminous with the appointing authority as co-existent with the tenure of the appointing authority or at his pleasure. Applied to Ong’s appointment.
• Sections 13 and 14, Rule V, CSC Resolution No. 91-1631 (Omnibus Rules on Appointments and Other Personnel Actions) — Section 13(b) provides that only a temporary appointment can be issued to a person who lacks the appropriate civil service eligibility. Section 14(2) defines co-terminous with the appointing authority as co-existent with the tenure of the appointing authority or at his pleasure, and clarifies that co-terminous appointees (except those co-terminous with the project or availability of funds) are not considered permanent. Both provisions applied to characterize Ong’s appointment as temporary and co-terminous with no security of tenure.
• Section 27, Administrative Code of 1987, as amended — Classifies career service appointments into permanent and temporary. A permanent appointment requires meeting all requirements including appropriate eligibility; a temporary appointment may be issued in the absence of appropriate eligibles and may be terminated sooner if a qualified eligible becomes available. Applied to underscore Ong’s temporary status.

Carpio, J. (Chairperson), Perez, J., Sereno, J., and Perlas-Bernabe, J. (Additional Member in lieu of Associate Justice Arturo D. Brion per Special Order No. 1174 dated January 9, 2012).