G.R. No. 185740, July 23, 2013 - THE PROVINCIAL GOVERNMENT OF CAMARINES NORTE, REPRESENTED BY GOVERNOR JESUS O. TYPOCO, JR., Petitioner, v. BEATRIZ O. GONZALES, Respondent.
EN BANC
G.R. No. 185740, July 23, 2013
THE PROVINCIAL GOVERNMENT OF CAMARINES NORTE, REPRESENTED BY GOVERNOR JESUS O. TYPOCO, JR., Petitioner, v. BEATRIZ O. GONZALES, Respondent.
D E C I S I O N
BRION, J.:
Section 7. Classes of Positions in the Career Service.
(a) Classes of positions in the career service appointment to which requires examinations shall be grouped into three major levels as follows:cralavvonlinelawlibraryx x x x
2. The second level shall include professional, technical, and scientific positions which involve professional, technical, or scientific work in a non-supervisory or supervisory capacity requiring at least four years of college work up to Division Chief level[.]
(b) The administrator shall take charge of the office of the administrator and shall:cralavvonlinelawlibrary
(1) Develop plans and strategies and upon approval thereof by the governor or mayor, as the case may be, implement the same particularly those which have to do with the management and administration-related programs and projects which the governor or mayor is empowered to implement and which the sanggunian is empowered to provide for under this Code;chanroblesvirtualawlibrary
(2) In addition to the foregoing duties and functions, the administrator shall:cralavvonlinelawlibrary(i) Assist in the coordination of the work of all the officials of the local government unit, under the supervision, direction, and control of the governor or mayor, and for this purpose, he may convene the chiefs of offices and other officials of the local government unit;x x x x
(4) Recommend to the sanggunian and advise the governor and mayor, as the case may be, on all other matters relative to the management and administration of the local government unit[.] [emphases and italics ours]
(b) There shall be established in every local government unit an accountable, efficient, and dynamic organizational structure and operating mechanism that will meet the priority needs and service requirements of its communities[.]
The Court is aware that this decision has repercussions on the tenure of other corporate secretaries in various GOCCs. The officers likely assumed their positions on permanent career status, expecting protection for their tenure and appointments, but are now re-classified as primarily confidential appointees. Such concern is unfounded, however, since the statutes themselves do not classify the position of corporate secretary as permanent and career in nature. Moreover, there is no absolute guarantee that it will not be classified as confidential when a dispute arises. As earlier stated, the Court, by legal tradition, has the power to make a final determination as to which positions in government are primarily confidential or otherwise. In the light of the instant controversy, the Court's view is that the greater public interest is served if the position of a corporate secretary is classified as primarily confidential in nature.38
Moreover, it is a basic tenet in the country's constitutional system that "public office is a public trust," and that there is no vested right in public office, nor an absolute right to hold office. No proprietary title attaches to a public office, as public service is not a property right. Excepting constitutional offices which provide for special immunity as regards salary and tenure, no one can be said to have any vested right in an office. The rule is that offices in government, except those created by the constitution, may be abolished, altered, or created anytime by statute. And any issues on the classification for a position in government may be brought to and determined by the courts.40 (emphases and italics ours)
8. Incumbents of positions, namely administrator, legal officer, and information officer declared by the Code as coterminous, who hold permanent appointments, shall continue to enjoy their permanent status until they vacate their positions.
Executive Order No. 503. Providing for the Rules and Regulations Implementing the Transfer of Personnel and Assets, Liabilities and Records of National Government Agencies whose Functions are to be Devolved to the Local Government Units and for other Related Purposes. [underscore, italics and emphases ours]
WHEREAS, Republic Act No. 7160, otherwise known as the Local Government Code of 1991, hereinafter referred to as the Code, transfers the responsibility for the delivery of basic services and facilities from the national government agencies (NGAs) concerned to the local government units (LGUs);
WHEREAS, the Code stipulated that the transfer of basic services and facilities shall be accompanied by the transfer of the national personnel concerned and assets to ensure continuity in the delivery of such services and facilities;chanroblesvirtualawlibrary
WHEREAS, responsive rules and regulations are needed to affect the required transfer of national personnel concerned and assets to the LGUs[.] [underscores, italics and emphases ours]
Endnotes:
1Rollo, pp. 18-27; under Rule 45 of the Rules of Court.cralawlibrary
2 Id. at 32-44; penned by Associate Justice Marlene Gonzales-Sison, and concurred in by Associate Justices Amelita G. Tolentino and Lucenito N. Tagle.cralawlibrary
3 Id. at 50-51.cralawlibrary
4 Id. at 32-33.cralawlibrary
5 Id. at 59-65.cralawlibrary
6 Id. at 66-77.cralawlibrary
7 Id. at 33.cralawlibrary
8 Id. at 78-81.cralawlibrary
9 Id. at 83-84.cralawlibrary
10 Reyes, Carmencita O., Re: Appointment; Provincial Administrator.cralawlibrary
11Rollo, pp. 85-88.cralawlibrary
12 Id. at 90.cralawlibrary
13 Id. at 90-97.cralawlibrary
14 Id. at 32-44.cralawlibrary
15 G.R. No. 92403, April 22, 1992, 208 SCRA 240.cralawlibrary
16 SECTION 46. Discipline: General Provisions. — (a) No officer or employee in the Civil Service shall be suspended or dismissed except for cause as provided by law and after due process.(b) The following shall be grounds for disciplinary action:cralavvonlinelawlibrary
(1) Dishonesty;chanroblesvirtualawlibrary
(2) Oppression;chanroblesvirtualawlibrary
(3) Neglect of duty;chanroblesvirtualawlibrary
(4) Misconduct;chanroblesvirtualawlibrary
(5) Disgraceful and immoral conduct;chanroblesvirtualawlibrary
(6) Being notoriously undesirable;chanroblesvirtualawlibrary
(7) Discourtesy in the course of official duties;chanroblesvirtualawlibrary
(8) Inefficiency and incompetence in the performance of official duties;chanroblesvirtualawlibrary
(9) Receiving for personal use of a fee, gift or other valuable thing in the course of official duties or in connection therewith when such fee, gift, or other valuable thing is given by any person in the hope or expectation of receiving a favor or better treatment than that accorded other persons, or committing acts punishable under the anti-graft laws;chanroblesvirtualawlibrary
(10) Conviction of a crime involving moral turpitude;chanroblesvirtualawlibrary
(11) Improper or unauthorized solicitation of contributions from subordinate employees and by teachers or school officials from school children;chanroblesvirtualawlibrary
(12) Violation of existing Civil Service Law and rules or reasonable office regulations;chanroblesvirtualawlibrary
(13) Falsification of official document;chanroblesvirtualawlibrary
(14) Frequent unauthorized absences or tardiness in reporting for duty, loafing or frequent unauthorized absences from duty during regular office hours;chanroblesvirtualawlibrary
(15) Habitual drunkenness;chanroblesvirtualawlibrary
(16) Gambling prohibited by law;chanroblesvirtualawlibrary
(17) Refusal to perform official duty or render overtime service;chanroblesvirtualawlibrary
(18) Disgraceful, immoral or dishonest conduct prior to entering the service;chanroblesvirtualawlibrary
(19) Physical or mental incapacity or disability due to immoral or vicious habits;chanroblesvirtualawlibrary
(20) Borrowing money by superior officers from subordinates or lending by subordinates to superior officers;chanroblesvirtualawlibrary
(21) Lending money at usurious rates of interest;chanroblesvirtualawlibrary
(22) Willful failure to pay just debts or willful failure to pay taxes due to the government;chanroblesvirtualawlibrary
(23) Contracting loans of money or other property from persons with whom the office of the employee concerned has business relations;chanroblesvirtualawlibrary
(24) Pursuit of private business, vocation or profession without the permission required by Civil Service rules and regulations;chanroblesvirtualawlibrary
(25) Insubordination;chanroblesvirtualawlibrary
(26) Engaging directly or indirectly in partisan political activities by one holding a non-political office;chanroblesvirtualawlibrary
(27) Conduct prejudicial to the best interest of the service;chanroblesvirtualawlibrary
(28) Lobbying for personal interest or gain in legislative halls or offices without authority;chanroblesvirtualawlibrary
(29) Promoting the sale of tickets in behalf of private enterprises that are not intended for charitable or public welfare purposes and even in the latter cases if there is no prior authority;chanroblesvirtualawlibrary
(30) Nepotism as defined in Section 60 of this Title.
17Rollo, pp. 45-49.cralawlibrary
18Supra note 3.cralawlibrary
19 Id. at 122-132.cralawlibrary
20 Id. at 151-170.cralawlibrary
21 Section 7. Classes of Positions in the Career Service.
(a) Classes of positions in the career service appointment to which requires examinations shall be grouped into three major level as follows:cralavvonlinelawlibrary
1. The first level shall include clerical, trades, crafts, and custodial service positions which involve non-professional or subprofessional work in a non-supervisory or supervisory capacity requiring less than four years of collegiate studies;chanroblesvirtualawlibrary
2. The second level shall include professional, technical, and scientific positions which involve professional, technical, or scientific work in a non-supervisory or supervisory capacity requiring at least four years of college work up to Division Chief level; and
3. The third level shall cover positions in the Career Executive Service.
(b) Except as herein otherwise provided, entrance to the first two levels shall be through competitive examinations, which shall be open to those inside and outside the service who meet the minimum qualification requirements. Entrance to a higher level does not require previous qualification in the lower level. Entrance to the third level shall be prescribed by the Career Executive Service Board.
(c) Within the same level, no civil service examination shall be required for promotion to a higher position in one or more related occupational groups. A candidate for promotion should, however, have previously passed the examination for that level.cralawlibrary
22 G.R. No. 71562, October 28, 1991, 203 SCRA 195.cralawlibrary
23 SECTION 7. Career Service.—The Career Service shall be characterized by (1) entrance based on merit and fitness to be determined as far as practicable by competitive examination, or based on highly technical qualifications; (2) opportunity for advancement to higher career positions; and (3) security of tenure.The Career Service shall include:cralavvonlinelawlibrary
(1) Open Career positions for appointment to which prior qualification in an appropriate examination is required;chanroblesvirtualawlibrary
(2) Closed Career positions which are scientific, or highly technical in nature; these include the faculty and academic staff of state colleges and universities, and scientific and technical positions in scientific or research institutions which shall establish and maintain their own merit systems;chanroblesvirtualawlibrary
(3) Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President;chanroblesvirtualawlibrary
(4) Career officers, other than those in the Career Executive Service, who are appointed by the President, such as the Foreign Service Officers in the Department of Foreign Affairs;chanroblesvirtualawlibrary
(5) Commissioned officers and enlisted men of the Armed Forces which shall maintain a separate merit system;chanroblesvirtualawlibrary
(6) Personnel of government-owned or controlled corporations, whether performing governmental or proprietary functions, who do not fall under the non-career service; and
(7) Permanent laborers, whether skilled, semi-skilled, or unskilled.
24 Section 199. Officials of the Provincial Government. -
(1) There shall be in each province a governor, a vice-governor, members of the sangguniang panlalawigan, a provincial secretary, a provincial treasurer, a provincial assessor, a provincial budget officer, a provincial engineer, a provincial agriculturist and a provincial planning and development coordinator.cralawlibrary
25 Section 199. x x x
x x x x
(3) The sangguniang panlalawigan may maintain existing offices not mentioned in paragraph (1) of [this] section, or create such other offices as may be necessary to carry out the purposes of the provincial government, or may consolidate the functions of any one of such offices with those of another in the interest of efficiency and economy.cralawlibrary
26 Section 463. Officials of the Provincial Government.
(a) There shall be in each province a governor, a vice-governor, members of the sangguniang panlalawigan, a secretary to the sangguniang panlalawigan, a provincial treasurer, a provincial assessor, x x x a provincial planning and development coordinator, a provincial legal officer, a provincial administrator[.] [italics and emphasis ours]
27 Section 480. Qualifications, Terms, Powers and Duties.
(a) No person shall be appointed administrator unless he is a citizen of the Philippines, a resident of the local government unit concerned, of good moral character, a holder of a college degree preferably in public administration, law, or any other related course from a recognized college or university, and a first grade civil service eligible or its equivalent. He must have acquired experience in management and administration work for at least five (5) years in the case of the provincial or city administrator, and three (3) years in the case of the municipal administrator.cralawlibrary
28 Citing the Manual of Position Descriptions, the Court in Laurel V v. Civil Service Commission, supra note 22, at 204, noted that the provincial administrator position has the following requirements:cralavvonlinelawlibrary
Education: Bachelor's degree preferably in Law/Public or Business Administration.
Experience: Six years of progressively responsible experience in planning, directing and administration of provincial government operations. Experience in private agencies considered are those that have been more or less familiar level of administrative proficiency.
Eligibility: RA 1080 (BAR)/Personnel Management Officer/Career Service (Professional)/First Grade/Supervisor.cralawlibrary
29 Reyes, Carmencita O., Re: Appointment; Provincial Administrator.cralawlibrary
30 Section 480, RA 7160; Article 119 of the Implementing Rules and Regulations of RA 7160 provides:cralavvonlinelawlibrary
ARTICLE 119. Appointment of Appointive Local Officials. — (a) Unless otherwise provided in this Rule, heads of offices and departments in the LGUs shall be appointed by the local chief executive concerned with the concurrence of a majority of all the members of the sanggunian, subject to civil service laws, rules and regulations.
(b) The sanggunian concerned shall act on the appointment within fifteen (15) days from the date of its submission; otherwise, the same shall be deemed confirmed.
(c) The term of office of the local administrator, local legal officer, and local information officer is coterminous with that of their appointing authority.cralawlibrary
31 The creation and abolition of public offices are primarily legislative functions. It is acknowledged that Congress may abolish any office it creates without impairing the officer's right to continue in the position held and that such power may be exercised for various reasons, such as the lack of funds or in the interest of economy. However, in order for the abolition to be valid, it must be made in good faith, not for political or personal reasons, or in order to circumvent the constitutional security of tenure of civil service employees (Canonizado v. Hon. Aguirre, 380 Phil. 280, 286 2000). See also The Law on Public Officers and Election Law, Hector S. de Leon, p. 336.cralawlibrary
32 See Salcedo and Ignacio v. Carpio and Carreon, 89 Phil. 254 (1951); and Eraña v. Vergel de Dios, 85 Phil. 17 (1949).cralawlibrary
33The Law on Public Officers and Election Law, Hector S. de Leon, p. 336.cralawlibrary
34Supra note 32.cralawlibrary
35 424 Phil. 707 (2002).cralawlibrary
36 G.R. No. 87420, September 17, 1990, 189 SCRA 672, 676.cralawlibrary
37 570 Phil. 89 (2008).cralawlibrary
38 Id. at 113.cralawlibrary
39 Supra note 37.cralawlibrary
40 Id. at 113-114; citations omitted.cralawlibrary
41 Section 2, Chapter 2, Title I of the Administrative Code.cralawlibrary
42 (i) The devolution contemplated in this Code shall include the transfer to local government units of the records, equipment, and other assets and personnel of national agencies and offices corresponding to the devolved powers, functions, and responsibilities.
Personnel of said national agencies or offices shall be absorbed by the local government units to which they belong or in whose areas they are assigned to the extent that it is administratively viable as determined by the said oversight committee: Provided, That the rights accorded to such personnel pursuant to civil service law, rules and regulations shall not be impaired: Provided, further, That regional directors who are career executive service officers and other officers of similar rank in the said regional offices who cannot be absorbed by the local government unit shall be retained by the national government, without any diminution of rank, salary or tenure.cralawlibrary
43Canonizado v. Hon. Aguirre, supra note 31.cralawlibrary
44 But in the main, the Constitution has blocked out with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government. The overlapping and interlacing of functions and duties between the several departments, however, sometimes makes it hard to say just where the one leaves off and the other begins. x x x In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof. (Angara v. Electoral Commission, 63 Phil. 139, 157 [1936].)
45Jocom v. Judge Regalado, 278 Phil. 83, 94 (1991), citing Tapales v. President and Board of Regents of the University of the Philippines, 117 Phil. 561 (1963).cralawlibrary
46Ingles v. Mutuc, 135 Phil. 177, 182 (1968).CONCURRING AND DISSENTING OPINION
DEL CASTILLO, J:
The questions raised in this petition are (1) whether the Local Government Code (LGC) of 1991 reclassified the position of Provincial Administrator into primarily confidential, a Non-Career service position; and (2) if in the affirmative, whether such reclassification affects the tenure of respondent Beatriz C. Gonzales (Gonzales) who was appointed Provincial Administrator in a permanent capacity prior to the LGC’s effectivity.
The LGC has classified the Provincial
Administrator position to primarily
confidential, a Non-Career position.
Positions in the Civil Service are classified into Career and Non-Career Service. Career Service is characterized by (1) entrance based on merit and fitness to be determined as far as practicable by competitive examination, or based on highly technical qualifications; (2) opportunity for advancement to higher Career Service positions; and (3) security of tenure.1 Positions under this classification are also sub-classified according to appointment status which may be either permanent or temporary. On the other hand, the Non-Career Service is characterized by (1) entrance on bases other than those of the usual tests of merit and fitness utilized for the career service; and (2) tenure which is limited to a period specified by law, or which is co-terminus with that of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose employment was made.2
Prior to the LGC and by virtue of Laurel V v. Civil Service Commission,3 the Provincial Administrator position was declared by this Court as not primarily confidential but classified under Career Service, particularly as an open career position which requires qualification in an appropriate examination prior to appointment. However, upon the advent of the LGC, this classification was altered pursuant to Section 480, Article X, Title V, Book 3 thereof which provides:cralavvonlinelawlibraryARTICLE X
THE ADMINISTRATOR
SECTION 480. Qualifications, Terms, Powers and Duties. – (a) No person shall be appointed administrator unless he is a citizen of the Philippines, a resident of the local government unit concerned, of good moral character, a holder of a college degree preferably in public administration, law or any other related course from a recognized college or university, and a first grade civil service eligible or its equivalent. He must have acquired experience in management and administration work for at least five (5) years in the case of the provincial or city administrator, and three (3) years in the case of municipal administrator.
The term of administrator is co[-]terminous with that of his appointing authority.
The appointment of an administrator shall be mandatory for the provincial and city governments, and optional for the municipal government.
(b) The administrator shall take charge of the office of the administrator and shall:cralavvonlinelawlibrary
(1) Develop plans and strategies and upon approval thereof by the governor or mayor, as the case may be, implement the same particularly those which have to do with the management and administration-related programs and projects which the governor or mayor is empowered to implement and which the sanggunian is empowered to provide for under this Code;chanroblesvirtualawlibrary
(2) In addition to the foregoing duties and functions, the administrator shall:cralavvonlinelawlibrary
(i) Assist in the coordination of the work of all the officials of the local government unit, under the supervision, direction, and control of the governor or mayor, and for this purpose, he may convene the chiefs of offices and other officials of the local government unit;chanroblesvirtualawlibrary
(ii) Establish and maintain a sound personnel program for the local government unit designed to promote career development and uphold the merit principle in the local government service;chanroblesvirtualawlibrary
(iii) Conduct a continuing organizational development of the local government unit with the end in view of instituting effective administrative reforms;chanroblesvirtualawlibrary
(3) Be in the frontline of the delivery of administrative support services, particularly those related to the situations during and in the aftermath of man-made and natural disasters and calamities;chanroblesvirtualawlibrary
(4) Recommend to the sanggunian and advise the governor and mayor, as the case may be, on all other matters relative to the management and administration of the local government unit; and
(5) Exercise such other powers and perform such other duties and functions as may be prescribed by law or ordinance.
The above-quoted duties and functions of a Provincial Administrator clearly reflect the confidential nature of the position. As the one in charge of the development and implementation of management and administration-related programs and projects of the provincial government, the Provincial Administrator enjoys the Governor’s highest degree of trust in his ability, integrity and loyalty. Complete trust and confidence must exist between the two since essential management and administration programs of the province are on the line. The need for a relationship based on trust and confidence is vital to preserving between them the freedom of intimate communication without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of the province. This was affirmed by former Senator Aquilino Q. Pimentel, Jr. in his commentary in his book, The Local Government Code Revisited,4 where he stated:cralavvonlinelawlibraryA good administrator can handle a large part of the day to day work of the x x x governor. If he is competent and enjoys the full trust and confidence of the x x x governor, he can accelerate the pace and expand the scope of the work of any local government administration.
Also, a Provincial Administrator’s duties and functions can hardly be typified as ordinary and routinary in character. He develops plans and strategies relating to the management, administration-related programs and projects of the provincial government and, with the approval of the Governor, implements them. He coordinates the work of all officials under the Governor, establishes and maintains a sound personnel program and conducts a continuing organizational development of the provincial government. He is in the frontline of the delivery of administrative support services and even recommends to the Sanggunian Panlalawigan and advises the Governor on all other matters about the management and administration of the local government unit concerned. Clearly, a Provincial Administrator enjoys wide latitude of discretion and authority in the discharge of his/her duties and functions and this negates their ordinary and routinary character.
Moreover, the Provincial Administrator submits directly to the Governor his plans and strategies for the latter’s approval and also reports to him all matters relative to the management and administration of the provincial government. There is no intervening officer between them. Stated otherwise, there is close proximity between the Governor and the Provincial Administrator.
In view of the above and pursuant to the following guidelines laid down by the Court in various cases with respect to the proper determination of whether a position is primarily confidential, to wit: (1) that a primarily confidential position is one which requires upon its occupant confidence that is much more than the ordinary;5 (2) that it is the nature of the functions attached to the position which ultimately determines whether a position is primarily confidential6 which must not be routinary, ordinary and day to day in character7 or mainly clerical;8 and, (3) that positions of a confidential nature would be limited to those positions not separated from the position of the appointing authority by an intervening public officer, or series of public officers, in the bureaucratic hierarchy9 (proximity rule); I agree with the ponencia that the LGC categorized the Provincial Administrator position as primarily confidential, hence reclassified it from Career to Non-Career Service position.
Article 480 of the LGC did not affect
the tenure of Gonzales.
The more crucial question now is whether the co-terminous status that attaches to a primarily confidential position, alongside the express declaration in Article 480 of the LGC that the term of a Provincial Administrator is co-terminous with that of his appointing authority, affects the tenure of Gonzales who was appointed to the said position in a permanent status prior to the effectivity of the LGC. The answer to this question will determine if Gonzales was validly dismissed due to lack of confidence.
The ponencia points out that Congress has the power to create, abolish or modify public offices and that pursuant to this power, it can change the qualifications for and shorten the term of, existing statutory offices. It concludes that although Gonzales was appointed in a permanent status, the fact that Congress, through the LGC, categorized the term of a Provincial Administrator as co-terminous it in effect converted such permanent status into co-terminous. The ponencia thus declares that Gonzales can be validly dismissed due to lack of confidence.
The power of Congress to create, abolish or modify public offices is not doubted. Indeed, the “creation x x x abolition [and reorganization] of public offices is primarily a legislative function. It is acknowledged that Congress may abolish [or reorganize] any office it creates without impairing the officer’s right to continue in the position held x x x [provided that] same is made in good faith.”10 However, I submit that the reclassification made by Congress under Article 480 of the LGC cannot be made to apply to this case. Otherwise stated, Article 480 of the LGC did not affect the tenure of Gonzales based on the following considerations: (1) Gonzales was appointed to the said position prior to the LGC’s effectivity; (2) Gonzales had already acquired a legal right to her permanent position, she having been issued, and having assumed, a completed appointment. Hence, enjoys security of tenure as a permanent appointee to the position of Provincial Administrator; and (3) The Court had already ruled in Laurel that the position of Provincial Administrator is under the Career Service; and finally, Executive Order (EO) No. 50311 specifically and expressly provides that [Provincial] Administrators who hold permanent appointments but whose terms were declared by the LGC as co-terminous shall continue to enjoy their permanent status until they vacate their positions.
Gonzales enjoys security of tenure as a permanent
employee, hence, she cannot be removed for a
cause not provided by law for removing a permanent
appointee and without due process of law.
Security of tenure is a right of paramount value and this is precisely why it is given specific recognition and guarantee by no less than the Constitution.12 Hence, the Court will not hesitate to uphold an employee’s right to security of tenure.13
Here, there can be no doubt that Gonzales deserves to be extended the protection of the constitutionally enshrined right to security of tenure. As may be recalled, Gonzales was appointed Provincial Administrator on April 1, 1991 in a permanent capacity or prior to the effectivity of the LGC. This appointment was approved by the Civil Service Commission (CSC) Field Office in Camarines Norte. The approval could only mean that the CSC then classified the position of Provincial Administrator as embraced within the Career Service since only positions under it are sub-classified as permanent. This classification made by the CSC was later affirmed by the Court through Laurel promulgated on October 28, 1991. Under these circumstances, Gonzales already became entitled to enjoy one of the characteristics of a Career Service position – security of tenure.14 However, after more than eight years of serving as a Provincial Administrator, Gonzales was dismissed from her position under the guise that the then sitting Governor had lost his trust and confidence on her considering that at that time the LGC was already in effect.
“[A] permanent employee remains a permanent
employee unless he is validly terminated.” 15
In Gabriel v. Domingo,16 therein petitioner Maximo Gabriel (Gabriel) was originally issued a permanent appointment as Motor Vehicle Registrar I at the Land Transportation Office. Thereafter, a reorganization took place by virtue of EO 546.17 Pursuant thereto, plantilla positions were renamed and the position of Gabriel was changed to Transportation District Supervisor. But after having filed a protest against appointees to a higher position to which he applied and believed was more qualified, Gabriel was served a casual appointment. Three days later, he was dismissed from the service. The Court thus said:cralavvonlinelawlibraryUnder the Constitution, it is provided that the security of tenure of civil servants shall be afforded protection. By this constitutional mandate, government employees are protected against unjustified dismissals.
Petitioner[,] who started working for the government way back in 1961[,] was already a holder of a permanent position at the time the reorganization caused by Executive Order No. 546 took effect. This is evident from his service record.
As observed by the Merit Systems Board, the casual appointment extended to petitioner later on, which led to his sudden and unexpected termination from the service, was made as a consequence of the protest he filed against the appointment of the eleven appointees to the position of Transportation District Supervisor III, and as such, it is illegal. This being the case, petitioner remained a permanent employee in spite of the casual appointment belatedly extended to him following the rule that a permanent employee remains a permanent employee unless he is validly terminated. The principle of non-dismissal except for cause applies to him.18
Similarly, in the instant case, Gonzales was originally issued a permanent appointment. Subsequently, she was administratively charged and found guilty of gross insubordination for which she was meted the penalty of six months suspension. After serving her suspension, the CSC directed the Provincial Government to reinstate her. Eventually, on October 10, 2000, the Provincial Government informed the CSC that it will reinstate Gonzales effective the following day, October 11, 2000, but would dismiss her for lack of confidence the next day, October 12, 2000, on the premise that her position had already become primarily confidential by virtue of the LGC. Gonzales’ dismissal, however, as aptly found by the CA in its assailed Decision, was without cause and effected without due process of law, hence, illegal. This being the case, the pronouncement made in Gabriel that a permanent employee remains a permanent employee unless he is validly terminated finds application in this case.
Another case worth considering is Civil Service Commission v. Javier.19 The Court therein concluded that the position of a Corporate Secretary in a Government Owned and Controlled Corporation (GOCC) which at that time was classified as a permanent career position, is primarily confidential in nature. In recognizing the effect of such declaration on the tenure of corporate secretaries appointed under a permanent status, the Court elucidated:cralavvonlinelawlibraryThe Court is aware that this decision has repercussions on the tenure of other corporate secretaries in various GOCCs. The officers likely assumed their positions on permanent career status, expecting protection for their tenure and appointments, but are now re-classified as primarily confidential appointees. Such concern is unfounded, however, since the statutes themselves do not classify the position of corporate secretary as permanent and career in nature. Moreover, there is no absolute guarantee that it will not be classified as confidential when a dispute arises. As earlier stated, the Court, by legal tradition, has the power to make a final determination as to which positions in government are primarily confidential or otherwise. x x x20 (Emphasis supplied)
It can thus be inferred from the above-quoted that had there been a prior classification by statute or determination by the Court of the position of Corporate Secretary as a permanent career position, permanent appointees thereto could expect protection for their tenure and appointments. In the instant case, a prior determination by the Court that the Provincial Administrator position is a permanent career position exists by virtue of Laurel. This was made at the time Gonzales had already assumed a completed appointment as a Provincial Administrator under a permanent status. Clearly, said judicial determination afforded Gonzales the protection for her tenure and appointment. The security of tenure of a permanent employee already attached to her, hence, she cannot be removed from office for a cause not provided by law for removing a permanent appointee and without due process of law.
EO 503 specifically and expressly provides for the tenure of a Provincial Administrator who holds a permanent appointment prior to the effectivity of the LGC.
On January 22, 1992, President Corazon C. Aquino issued EO 503. Wary that the advent of the LGC would impinge on the security of tenure of not only the personnel of the national government agencies and local government units involved in the devolution brought about by the LGC, but also of such other personnel otherwise affected, Section 2(a) of EO 503 provided certain safeguards against termination,21 particularly paragraphs 5, 6, 8, 12,22 – an obvious indication that the executive department likewise sought to protect and uphold the security of tenure of the personnel concerned. Section 2(a), paragraph 8, specifically and expressly provides for the tenure of an administrator, viz:cralavvonlinelawlibrary8. Incumbents of positions, namely administrator, legal officer and information officer declared by the Code as co[-]terminous, who hold permanent appointments, shall continue to enjoy their permanent status until they vacate their positions. (Emphasis supplied)
It is crystal clear from the above provision that notwithstanding the express declaration in Section 480 of the LGC that the term of an administrator is co-terminous with that of his appointing authority, deference is accorded to the right to security of tenure of those holding the said position in a permanent status prior to the LGC’s effectivity.
The ponencia opines that EO 503 applies only to employees of the national government whose functions are to be devolved to local government. I disagree. EO 503 is entitled “Providing for the rules and regulations implementing the transfer of personnel and assets, liabilities and records of national government agencies whose functions are to be devolved to the local government units and for other related purposes.” The phrase “AND FOR OTHER RELATED PURPOSES” could encompass personnel not necessarily employed by national government agencies but by local government units such as the Administrator, the Legal Officer and the Information Officer, as enumerated in Section 2(a), paragraph 8 thereof. The LGC declared their term to be co-terminous with their appointing authority;23 thus, it is not farfetched to conclude that they are the officers referred to in Section 2(a), paragraph 8 of EO 503. This is even more so, considering that Section 480 of the LGC does not provide whether the term of an incumbent Provincial Administrator automatically becomes co-terminous with the appointing authority upon the effectivity of the LGC. Section 2(a), paragraph 8, of EO 503 is considered to have filled such crucial gap. The said provision enjoys the legal presumption of validity. “Unless the law or rule is annulled in a direct proceeding, the legal presumption of its validity stands.”24 As such, there can be no other logical conclusion than that Gonzales is entitled to continue to hold her position as Provincial Administrator under a permanent status.
Finally, the ponencia declares that “[a]ll permanent officers and employees in the civil service, regardless of whether they belong to the career or non-career service category” have the right to security of tenure; as such, they can only be removed for cause and with due process.
In the instant case, the CA correctly held that Gonzales’ dismissal was without cause and effected without due process of law, hence illegal. Records show that Gonzales was administratively charged with, and found guilty of, insubordination. She was meted the penalty of six months suspension which she served. Thereafter, she was dismissed from the service based on the same set of factual circumstances for which she was charged and eventually suspended. Notably, she was informed of her “reinstatement” on the same day she was notified of her dismissal supposedly for lack of confidence. Otherwise stated, by virtue of the letter dated October 10, 2000, Gonzales was informed of her reinstatement effective October 11, 2000. But even before she could expel a sigh of relief, the next paragraph of the same letter already notified her of her termination effective the following day, October 12, 2000. For better appreciation, the said letter is quoted below:cralavvonlinelawlibraryOctober 10, 2000
Ms. Beatriz O. Gonzales
Provincial Administrator
Provincial Capitol
Daet, Camarines Norte
Dear Mrs. Gonzales:cralavvonlinelawlibrary
We received today your letter of even date, quoting the dispositive portion of the CSC Resolution No. 002245, in relation to CSC Administrative Case No. 1171-91.
In compliance with the said CSC Resolution, you are considered reinstated as Provincial Administrator effective October 11, 2000.
Be that as it may, considering that the position of Administrator whether Provincial, Municipal or City, has been reclassified from Career position to Non career position in line with the ruling in the case of Reyes, Carmencita O., under Resolution No. 0001158, dated May 12, 2000, the nature of which is highly confidential and co-terminous in nature, please be informed that effective October 12, 2000, your services as Provincial Administrator is terminated for LOSS OF CONFIDENCE.
As you may be aware of since we assumed as the duly elected Governor of Camarines Norte on September 23, 1998; no new appointment has been issued to you as Provincial Administrator.
Even in an Opinion of the CSC dated June 1, 1995, it has been opined that appointment of a local administrator is co[-]terminous with the appointing authority and needs to be renewed upon expiration of the term of office of whoever appointed you, prior to our assumption as Governor.
Accordingly, you are advised not to report for work effective October 12, 2000.
Very truly yours,
(Signed)
EMMANUEL B. PIMENTEL25
In view of these, I submit that Gonzales has the right to security of tenure and that she is entitled to continue to hold the position of Provincial Administrator in a permanent status. Thus, her reinstatement thereto is called for.
However, mindful of the fact that the present times and the exigencies of the service would necessarily require Gonzales to discharge the duties and functions of a Provincial Administrator laid down in Section 480 of the LGC once she gets reinstated, a critical question thus arises: How can she effectively discharge these duties and functions which as earlier discussed necessitate the full trust and confidence of the incumbent governor when she does not, in the first place, enjoy such trust and confidence? Under this peculiar situation, the CSC’s disquisition in its Resolution No. 061988 ordering the immediate reinstatement of Gonzales as Provincial Administrator or to a comparable position of a permanent status, should the former become untenable under the present situation, is appropriate. In which case, neither the interest of service nor Gonzales’ security of tenure is compromised. This is also in keeping with the Court’s duty, as a dispenser of justice, to find a solution that is both legal and realistic.26
All told, I find no error on the part of the CA in affirming the Orders of the Civil Service Commission.
ACCORDINGLY, I vote to DENY the Petition.Endnotes:
1 Section 7, Subtitle A, Title 1, Book V, Administrative Code of 1987.cralawlibrary
2 Section 9, Subtitle A, Title 1, Book V, Administrative Code of 1987.cralawlibrary
3 G.R. No. 71562, October 28, 1991, 203 SCRA 195.cralawlibrary
4 2011 Edition, p. 688.cralawlibrary
5De los Santos v. Mallare, 87 Phil. 289, 298 (1950).cralawlibrary
6Piñero v. Hechanova, 124 Phil. 1022, 1026 (1966).cralawlibrary
7 Civil Service Commission v. Javier, 570 Phil. 89, 108 (2008).cralawlibrary
8 Ingles v. Mutuc, 135 Phil. 177, 184 (1968).cralawlibrary
9Civil Service Commission v. Javier, supra at 109.cralawlibrary
10Canonizado v. Hon. Aguirre, 380 Phil. 280, 286, (2000).cralawlibrary
11 Providing for the Rules and Regulations Implementing the Transfer of Personnel and Assets, Liabilities and Records of National Government Agencies whose functions are to be devolved to the Local Government Units and for other Related Purposes.cralawlibrary
12City Service Corporation Workers Union v. City Service Corporation, 220 Phil. 239, 242 (1985).cralawlibrary
13St. Mary’s Academy of Dipolog City v. Palacio, G.R. No. 164913, September 8, 2010, 630 SCRA 263, 265.cralawlibrary
14 See Section 7, Subtitle A, Title 1, Book V of the Administrative Code of 1987.cralawlibrary
15 Gabriel v. Domingo, G.R. No. 87420, September 17, 1990, 189 SCRA 672.cralawlibrary
16 Id.cralawlibrary
17 Entitled “CREATING A MINISTRY OF PUBLIC WORKS AND A MINISTRY OF TRANSPORTATION AND COMMUNICATIONS.”
18Gabriel v. Domingo, supra at 676.cralawlibrary
19 Supra note 7.cralawlibrary
20 Id. at 113.cralawlibrary
21 Atty. Aguirre, Jr. v. De Castro, 378 Phil. 714, 725 (1999).cralawlibrary
22 5. There shall be no involuntary separation, termination, or lay-off of permanent personnel of the NGAs [National Government Agencies] affected by devolution.
6. Devolved permanent personnel shall enjoy security of tenure.
x x x x
8. Incumbents of positions, namely administrator, legal officer, and information officer declared by the Code as co[-]terminous, who hold permanent appointments, shall continue to enjoy their permanent status until they vacate their positions.
x x x x
12. Except as herein otherwise provided, devolved permanent personnel shall be automatically reappointed by the local chief executive concerned immediately upon their transfer which shall not go beyond June 30, 1992.cralawlibrary
23 See Section 480, Article Ten; Section 481, Article Eleven; Section 486, Article Sixteen; all of Title Five, Book III, of the Local Government Code.cralawlibrary
24Dasmariñas Water District v. Monterey Foods Corporation, G.R. No. 175550, September 17, 2008, 565 SCRA 624, 637.cralawlibrary
25 CA rollo, pp. 37-38.cralawlibrary
26Concurring Opinion of Chief Justice Moran in Araneta v. Dinglasan, 84 Phil. 368, 387 (1949).