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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.

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.

PHILIPPINE SUPREME COURT DECISIONS

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.:

 

We resolve the Provincial Government of Camarines Norte’s (petitioner) petition for review on certiorari1 assailing the Decision2 dated June 25, 2008 and the Resolution3 dated December 2, 2008 of the Court of Appeals (CA) in CA-G.R. SP No. 97425, reinstating respondent Beatriz O. Gonzales as the Province of Camarines Norte’s provincial administrator, or to an equivalent position.

Factual Antecedents

Gonzales was appointed as the provincial administrator of the Province of Camarines Norte by then Governor Roy A. Padilla, Jr. on April 1, 1991. Her appointment was on a permanent capacity. On March 8, 1999, Governor Jess B. Pimentel sent Gonzales a memorandum directing her to explain in writing why no administrative charges should be filed against her for gross insubordination/gross discourtesy in the course of official duties, and conduct grossly prejudicial to the best interest of the service; this was later on captioned as Administrative Case No. 001. After Gonzales submitted her comment, an Ad Hoc Investigation Committee found her guilty of the charges against her, and recommended to Governor Pimentel that she be held administratively liable.4 On September 30, 1999, Governor Pimentel adopted the Ad Hoc Investigation Committee’s recommendation and dismissed Gonzales.5

Proceedings before the Civil Service Commission

Gonzales appealed Governor Pimentel’s decision to the Civil Service Commission (CSC). The CSC issued Resolution No. 0014186 modifying Governor Pimentel’s decision, finding Gonzales guilty of insubordination and suspending her for six months. This decision was appealed by Governor Pimentel, which the CSC denied in its Resolution No. 001952.7

Gonzales then filed a motion for execution and clarification of Resolution No. 001418, in which she claimed that she had already served her six-month suspension and asked to be reinstated. The CSC issued Resolution No. 002245,8 which directed Gonzales’ reinstatement.

Governor Pimentel reinstated Gonzales as provincial administrator on October 12, 2000, but terminated her services the next day for lack of confidence. He then wrote a letter9 to the CSC reporting his compliance with its order, and Gonzales’ subsequent dismissal as a confidential employee. In his letter, Governor Pimentel cited Resolution No. 0001158,10 where the CSC ruled that the provincial administrator position is highly confidential and is coterminous in nature.

The CSC responded through Resolution No. 030008,11 which again directed Gonzales’ reinstatement as provincial administrator. It clarified that while the Local Government Code of 1991 (Republic Act No. [RA] 7160) made the provincial administrator position coterminous and highly confidential in nature, this conversion cannot operate to prejudice officials who were already issued permanent appointments as administrators prior to the new law’s effectivity. According to the CSC, Gonzales has acquired a vested right to her permanent appointment as provincial administrator and is entitled to continue holding this office despite its subsequent classification as a coterminous position. The conversion of the provincial administrator position from a career to a non-career service should not jeopardize Gonzales’ security of tenure guaranteed to her by the Constitution. 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.

In a letter12 dated February 17, 2005, Gonzales wrote the CSC alleging that Governor Jesus O. Typoco, Jr., Camarines Norte’s incumbent governor, refused to reinstate her. The CSC responded with Resolution No. 061988,13 which ordered Gonzales’ reinstatement to the provincial administrator position, or to an equivalent position. Thus, the petitioner, through Governor Typoco, filed a petition for review before the CA, seeking to nullify the CSC’s Resolution No. 030008 and Resolution No. 061988.

The Appellate Court’s Ruling

The CA supported the CSC’s ruling that reinstated Gonzales as provincial administrator or to an equivalent position.14

Citing Aquino v. Civil Service Commission,15 the CA emphasized that an appointee acquires a legal right to his position once he assumes a position in the civil service under a completed appointment. This legal right is protected both by statute and the Constitution, and he cannot be removed from office without cause and previous notice and hearing. Appointees cannot be removed at the mere will of those vested with the power of removal, or without any cause.

The CA then enumerated the list of valid causes for a public officer’s removal under Section 46,16 Book V, Title I, Subtitle A of the Revised Administrative Code (Administrative Code), and noted that lack of confidence was not in the list. Thus, the CA concluded that Gonzales’ dismissal on the ground of loss of confidence violated her security of tenure, and that she has the right to be reinstated with payment of backwages.

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.

Lastly, the CA noted that Resolution No. 002245, which modified Governor Pimentel’s decision, has long been final and executory. The petitioner did not file any petition for reconsideration against Resolution No. 002245, and hence, it is no longer alterable.

The petitioner sought a reconsideration17 of the CA’s Decision, which the CA denied in a Resolution18 dated December 2, 2008.

The Present Petition

In its present petition for review on certiorari, the petitioner argues that the provincial administrator position has been converted into a highly confidential, coterminous position by RA 7160. Hence, Gonzales no longer enjoyed security of tenure to the position she held prior to RA 7160’s enactment.

In her Comment19 and Memorandum,20 Gonzales maintained that the provincial administrator remained a career service position. Section 721 of Presidential Decree No. 807, which was one of the bases of the Court in Laurel V v. Civil Service Commission22 to declare the provincial administrator as a career service position, is a verbatim copy of Section 7,23 Chapter 2 of the Administrative Code. This classification, established by law and jurisprudence, cannot be altered by the mere implementing rules and regulations of RA 7160. And assuming arguendo that the provincial administrator position has indeed become a primarily confidential position, this reclassification should not apply retroactively to Gonzales’ appointment on a permanent capacity prior to RA 7160’s effectivity.

Issues

The parties’ arguments, properly joined, present to us the following issues:cralavvonlinelawlibrary

1)  Whether Congress has re-classified the provincial administrator position from a career service to a primarily confidential, non-career service position; and

2)  Whether Gonzales has security of tenure over her position as provincial administrator of the Province of Camarines Norte.

The Court’s Ruling


We find the petition meritorious.

Congress has reclassified the provincial
administrator position as a primarily
confidential, non-career position


We support the CSC’s conclusion that 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,24 but empowered the Sangguniang Panlalawigan to create such other offices as might then be necessary to carry out the purposes of the provincial government.25 RA 7160 made the position mandatory for every province.26 Thus, the creation of the provincial administrator position under the old LGC used to be a prerogative of the Sangguniang Panlalawigan.

Second, in introducing the mandatory provincial administrator position, RA 7160 also amended the qualifications for the provincial administrator position. While Section 48027 of RA 7160 retained the requirement of civil service eligibility for a provincial administrator, together with the educational requirements, it shortened the six-year work experience requirement to five years.28 It also mandated the additional requirements of residence in the local government concerned, and imposed a good moral character requirement.

Third, RA 7160 made the provincial administrator position coterminous with its appointing authority, reclassifying it as a non-career service position that is primarily confidential.

Before RA 7160 took effect, Laurel classified the provincial administrator position as an open career position which required qualification in an appropriate examination prior to appointment. Laurel placed the provincial administrator position under the second major level of positions in the career service under Section 7 of Presidential Decree No. 807. This provision reads:cralavvonlinelawlibrary

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:cralavvonlinelawlibrary
x 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[.]

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, to wit:cralavvonlinelawlibrary

(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]

As the CSC correctly noted in Resolution No. 0001158,29 the administrator position demands a close intimate relationship with the office of the governor (its appointing authority) to effectively develop, implement and administer the different programs of the province. The administrator’s functions are to recommend to the Sanggunian and to advise the governor on all matters regarding the management and administration of the province, thus requiring that its occupant enjoy the governor’s full trust and confidence.

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.30 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 non-career service category of the civil service.

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


Having established that Congress has changed the nature of the provincial administrator position to a primarily confidential employee, the next question to address would be its impact on Gonzales’ security of tenure. According to the petitioner, Gonzales lost her security of tenure when the provincial administrator position became a primarily confidential position. Gonzales, on the other hand, retorted that the conversion of the position should not be retroactively applied to her, as she is a permanent appointee. Both the CA and the CSC ruled in favor of the latter, and gave premium to Gonzales’ original permanent appointment under the old LGC. They posit that 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.

The arguments presented by the parties and ruled upon by the CA reflect a conceptual entanglement between the nature of the position and an employee’s right to hold a position. These two concepts are different. The nature of a position may change by law according to the dictates of Congress. The right to hold a position, on the other hand, is a right that enjoys constitutional and statutory guarantee, but may itself change according to the nature of the position.

Congress has the power and prerogative to introduce substantial changes in the provincial administrator position and to reclassify it as a primarily confidential, non-career service position. Flowing from the legislative power to create public offices is the power to abolish and modify them to meet the demands of society;31 Congress can change the qualifications for and shorten the term of existing statutory offices. 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.32 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.33

In Salcedo and Ignacio v. Carpio and Carreon,34 for instance, Congress enacted a law modifying the offices in the Board of Dental Examiners. The new law, RA 546, raised the qualifications for the board members, and provided for a different appointment process. Dr. Alfonso C. Salcedo and Dr. Pascual Ignacio, who were incumbent board members at the time RA 546 took effect, filed a special civil action for quo warranto against their replacements, arguing that their term of office under the old law had not yet expired, and neither had they abandoned or been removed from office for cause. We dismissed their petition, and held that Congress may, by law, terminate the term of a public office at any time and even while it is occupied by the incumbent. Thus, whether Dr. Salcedo and Dr. Ignacio were removed for cause or had abandoned their office is immaterial.

More recently, in Dimayuga v. Benedicto II,35 we upheld the removal of Chona M. Dimayuga, a permanent appointee to the Executive Director II position, which was not part of the career executive service at the time of her appointment. During her incumbency, the CSC, by authority granted under Presidential Decree No. 1, classified the Executive Director II position to be within the career executive service. Since Dimayuga was not a career executive service officer, her initially permanent appointment to the position became temporary; thus, she could be removed from office at any time.

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 that:cralavvonlinelawlibrary

(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[.]

Thus, Gonzales’ permanent appointment as provincial administrator prior to the enactment of RA 7160 is immaterial to her removal as provincial administrator. For purposes of determining whether Gonzales’ termination violated her right to security of tenure, the nature of the position she occupied at the time of her removal should be considered, and not merely the nature of her appointment at the time she entered government service.

In echoing the CSC and the CA’s conclusion, the dissenting opinion posits the view that security of tenure protects the permanent appointment of a public officer, despite subsequent changes in the nature of his position.

Citing Gabriel v. Domingo,36 the dissenting opinion quotes our categorical declaration that “a permanent employee remains a permanent employee unless he is validly terminated[,]” and from there attempts to draw an analogy between Gabriel and the case at hand.

The very first sentence of Gabriel spells out its vast difference from the present case. The sole and main issue in Gabriel is whether backwages and other monetary benefits could be awarded to an illegally dismissed government employee, who was later ordered reinstated. From this sentence alone can be discerned that the issues involved related to the consequences of illegal dismissal rather than to the dismissal itself. Nowhere in Gabriel was there any mention of a change in the nature of the position held by the public officer involved.

Further, key factual differences make Gabriel inapplicable to the present case, even if only by analogy: first, the public officer in Gabriel received a Memorandum stating that he would be appointed as Transportation District Supervisor III under their office reorganization. Second, the Court in Gabriel clearly pointed out that the reason for his eventual appointment as a casual employee, which led to his termination from service, was due to a pending protest he filed before the CSC – indicating that there was no ground for him to not receive the appointment earlier promised. In contrast, the issue of Gonzales is whether the appointing authority’s lack of trust and confidence in the appointee was sufficient cause for the termination of employment of a primarily confidential employee. And third, there was a change in the position held by the public officer in Gabriel. He was a permanent employee who was extended a different appointment, which was casual in nature, because of a protest that he earlier filed. In contrast, the current case involves a public officer who held the same position whose nature changed because of the passage of RA 7160.

The dissent also quotes the penultimate paragraph of Civil Service Commission v. Javier37 to support its contention that permanent appointees could expect protection for their tenure and appointments in the event that the Court determines that the position is actually confidential in nature:cralavvonlinelawlibrary

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

The quoted portion, however, even bolsters our theory. Read together with its succeeding paragraph, the quoted portion in Civil Service Commission v. Javier39 actually stands for the proposition that other corporate secretaries in government-owned and –controlled corporations cannot expect protection for their tenure and appointments upon the reclassification of their position to a primarily confidential position. There, the Court emphasized that these officers cannot rely on the statutes providing for their permanent appointments, if and when the Court determines these to be primarily confidential. In the succeeding paragraph after the portion quoted by the dissent, we even pointed out that there is no vested right to public office, nor is public service a property right. Thus:cralavvonlinelawlibrary

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)

Executive Order No. 503 does not grant
Gonzales security of tenure in the provincial
administrator position on a permanent capacity


In extending security of tenure to Gonzales’ permanent appointment as provincial administrator, the dissenting opinion cites as authority Executive Order No. (EO) 503 which provided certain safeguards against the termination of government employees affected by the implementation of RA 7160. According to the dissenting opinion, EO 503 is an obvious indication of the executive department’s intent to protect and uphold both the national government and the local government employees’ security of tenure. It cites Section 2(a), paragraph 8 (providing for the tenure of an administrator) to prove its point:cralavvonlinelawlibrary

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.

At first glance, EO 503 does seem to extend the provincial administrators’ security of tenure in their permanent appointments even beyond the effectivity of RA 7160. EO 503, however, does not apply to employees of the local government affected by RA 7160’s enactment. The title of EO 503 clearly provides for its scope of application, to wit:cralavvonlinelawlibrary

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]

A reading of EO 503’s whereas clauses confirms that it applies only to national government employees whose functions are to be devolved to local governments:cralavvonlinelawlibrary

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]

Thus, paragraph 8, section 2(a) of EO 503 cannot apply to Gonzales, a provincial administrator. As explained earlier, the existence of the provincial administrator position was a prerogative of the Sanggunian Panlalawigan, and was not even a mandatory public office under the old LGC. It is clearly not a national government position whose functions are to be devolved to the local governments.

The dissenting opinion, on the other hand, argues that EO 503 does not apply to national government employees only. According to the dissent, the phrase “and for related purposes” in EO 503’s title 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. This provision, according to the dissent, fills the crucial gap left by RA 7160 which did not provide whether the term of an incumbent provincial administrator would automatically become coterminous with that of the appointing authority upon RA 7160’s effectivity.

This kind of construction effectively adds to EO 503’s object matters that it did not explicitly provide for. The phrase “and for other related purposes” can only add to EO 503 matters related to the devolution of personnel, basic services and facilities to local government units. The impact of the change in a local government position’s nature is clearly different from the implementation of devolution and its ancillary effects: the former involves a change in a local government position’s functions and concept of tenure, while the latter involves (among other things) the transfer of national government employees to local government units. This difference is highlighted by the fact that EO 503, as reflected by its whereas clauses, was issued to implement Section 17 of RA 7160. In contrast, the change in the nature of the provincial administrator position may be gleaned from Section 480 of RA 7160. Hence, by no stretch of reasonable construction can the phrase “and for other related purposes” in EO 503’s title be understood to encompass the consequences of the change in the local government position’s nature.

Furthermore, construing that the administrator position in Section 2(a), paragraph 8 pertains to city, municipal and/or provincial administrators would result in a legal infirmity. EO 503 was issued pursuant to the President’s ordinance powers to provide for rules that are general or permanent in character for the purpose of implementing the President’s constitutional or statutory powers.41 Exercising her constitutional duty to ensure that all laws are faithfully executed, then President Corazon Aquino issued EO 503 to ensure the executive’s compliance with paragraph (i), Section 17 of RA 7160, which requires local government units to absorb the personnel of national agencies whose functions shall be devolved to them.42 This is reflected in EO 503’s title and whereas clauses, and its limited application as discussed earlier.

Thus, the dissenting opinion’s interpretation would result in the judicial recognition of an act of the Executive usurping a legislative power. The grant of permanent status to incumbent provincial administrators, despite the clear language and intent of RA 7160 to make the position coterminous, is an act outside the President’s legitimate powers. The power to create, abolish and modify public offices is lodged with Congress.43 The President cannot, through an Executive Order, grant permanent status to incumbents, when Congress by law has declared that the positions they occupy are now confidential. Such act would amount to the President’s amendment of an act of Congress – an act that the Constitution prohibits. Allowing this kind of interpretation violates the separation of powers, a constitutionally enshrined principle that the Court has the duty to uphold.44

The dissent counters this argument by pointing out that Section 2(a), paragraph 8 of EO 503 enjoys the legal presumption of validity. Unless the law or rule is annulled in a direct proceeding, the legal presumption of its validity stands. The EO’s validity, however, is not in question in the present case. What is at issue is a proper interpretation of its application giving due respect to the principle of separation of powers, and the dissenting opinion’s interpretation does violence to this principle.

Gonzales has security of tenure, but only
as a primarily confidential employee


To be sure, 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.45 The concept of security of tenure, however, labors under a variation for primarily confidential employees due to the basic concept 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. When this happens, the confidential employee is not “removed” or “dismissed” from office; his term merely “expires”46 and the loss of trust and confidence is the “just cause” provided by law that results in the termination of employment. In the present case where the trust and confidence has been irretrievably eroded, we cannot fault Governor Pimentel’s exercise of discretion when he decided that he could no longer entrust his confidence in Gonzales.

Security of tenure in public office simply means that a public officer or employee shall not be suspended or dismissed except for cause, as provided by law and after due process. It cannot be expanded to grant a right to public office despite a change in the nature of the office held. In other words, the CSC might have been legally correct when it ruled that the petitioner violated Gonzales’ right to security of tenure when she was removed without sufficient just cause from her position, but the situation had since then been changed. In fact, Gonzales was reinstated as ordered, but her services were subsequently terminated under the law prevailing at the time of the termination of her service; i.e., she was then already occupying a position that was primarily confidential and had to be dismissed because she no longer enjoyed the trust and confidence of the appointing authority. Thus, Gonzales’ termination for lack of confidence was lawful. She could no longer be reinstated as provincial administrator of Camarines Norte or to any other comparable position. This conclusion, however, is without prejudice to Gonzales’ entitlement to retirement benefits, leave credits, and future employment in government service.

WHEREFORE, all premises considered, we hereby GRANT the petition, and REVERSE and SET ASIDE the Decision dated June 25, 2008 and the Resolution dated December 2, 2008 of the Court of Appeals in CA-G.R. SP No. 97425.

SO ORDERED.

Carpio, Leonardo-De Castro, Peralta, Bersamin, Villarama, Jr., Perez, Mendoza, Reyes, Perlas-Bernabe, and Leonen, JJ., concur.
Sereno, C.J., Velasco, Jr., and Abad, JJ., joins the concurring and dissenting opinion of J. Del Castillo.
Del Castillo, J., please see concurring and dissenting opinion.


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:cralavvonlinelawlibrary

ARTICLE 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:cralavvonlinelawlibrary

A 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:cralavvonlinelawlibrary

Under 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:cralavvonlinelawlibrary

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. 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:cralavvonlinelawlibrary

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. (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:cralavvonlinelawlibrary

October 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).
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