puboff cases for 07.05

7/31/2019 Puboff Cases for 07.05

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G.R. No. 85670 July 31, 1991

ROGELIO A. TRIApetitioner,vs.CHAIRMAN PATRICIA A. STO. TOMAS, CIVIL SERVICE COMMISSION, RET. BRIG.

GEN. JOSE T. ALMONTE, RET. COL. ERNESTO P. RAVINA and RET. GEN.MIGUEL M. VILLAMOR,respondents.

Florosco P. Fronda for petitioner.

FELICIANO,J.: p

Petitioner Rogelio A. Tria had been employed with the Bureau of Intelligence andInvestigation later renamed Finance Ministry Intelligence Bureau (FMIB) now known as

the Economic Intelligence and Investigation Bureau (EIIB) of the Department of Finance, Region 5, Legaspi City, as a Management and Audit Analyst I, a positionexpressly described in the letter of appointment as "confidential." 1 The appointmentwas signed by Pelagio A. Cruz, Lieutenant General, AFP (Ret) Commissioner, FMIBI." 2

On 27 September 1984, petitioner wrote a confidential report to the FMIB DeputyCommissioner detailing the nonfeasance of a FMIB lawyer assigned to Region 5.Petitioner's report recommended the lawyer's replacement "With a competent and ablelawyer to handle the cases brought to his attention." 3 On 14 October 1986, petitioner submitted another confidential report, addressed to the Deputy Executive Secretary,Office of the President, this time concerning Col. Jackson P. Alparce (Ret.). FMIB

Region 5 Director.On 20 October 1986, petitioner filed an application for vacation leave for 100 workingdays, covering the period 1 November 1986 to 30 April 1987. Petitioner sought to takeadvantage of a Civil Service circular which allows employees who propose to seekinterim employment abroad, to go on prolonged leave of absence without pay withoutbeing considered separated from the service. 4 The application was approved by hisimmediate supervisor and Chief, Intelligence and Investigation Service, Col. Ruperto

Amistoso (Ret.), and the personnel officer, Col. Domingo Rodriguez (Ret.), both basedin the Region 5 office of the FMIB.

On 23 October 1986, when petitioner was already in Manila attending to the processingof his travel papers, a Memorandum was sent to him in Legaspi City from the FMIBCentral Office in Quezon City by respondent Assistant FMIB Commissioner Brig. Gen.Miguel Villamor (Ret.), referring to the confidential report sent out to the Office of thePresident. The Memorandum in part stated:

Be reminded that as an agent of FMIB, it is inherent in your duties to report to theCommissioner or other authorities of FMIB of any irregularity committed by


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employees/officials in that Region [5] to enable them to take appropriateaction/investigation and/or disciplinary action.

However, it appears that you opted to submit said report directly to the Office of thePresident, Malacaang which adversely affected the Bureau's image and placed theCommissioner in an embarrasing position .

In view thereof, you are required to submit your explanation in writing within five (5)working days from receipt hereof why no disciplinary action should be taken against you for non-compliance with office rules and regulations. 5

Since petitioner had failed to receive and hence to respond to the above Memorandum,another Memorandum from Quezon City dated 17 November 1986 was issued, this timeby respondent Col. Ernesto Rabina (Ret.), Chief, Administrative Service, FMIB,reminding petitioner of his duty to submit the required written explanation. ThatMemorandum went on to state:

Be informed further that your application for sick [should have been vacation] leave dated October 22, 1986 . . . has been disapproved pursuant to Sec. 16 of Civil Service Rule No.XVI which reads thus: "Leave of absence for any reason other than serious illness must becontingent upon the needs of the service."

Inasmuch as your services in that Region [5] is ( sic ) needed, you are directed to report for work thereat within ten (10) working days from the date of this Memorandum otherwise,this office will be constrained to drop you from the rolls of FMIB for prolonged/unauthorizedabsence and non-compliance with office rules and regulations. 6

Petitioner, however, had already left the country on 26 October 1986, and was unable tocomply with the express directives of the second Memorandum. He was thereforeconsidered to be on absence without official leave (AWOL). This prolonged absence, as

well as his failure to explain his sending out the confidential report to Malacaang,prompted respondent EIIB Commissioner Brig Gen. Jose Almonte (Ret.) to issue Letter-Order No. 06-87 dated 12 January 1987 informing petitioner of the termination of hisservices retroactive to "1 November 1986 for continuous absence without official leaveand for loss of confidence." 7

It was upon his return to the country sometime in May 1987 that petitioner came toknow of the abovementioned Letter-Order and of the two Memoranda. In a letter dated20 May 1987 to respondent Almonte, petitioner asked for reinstatement, stating that hisapplication for vacation leave had been approved by his immediate chief and thepersonnel officer. With respect to the confidential report he had addressed to the

Deputy Executive Secretary, petitioner explained:

. . . I would like to state that the reason why I submitted my report to the Office of thePresident is precisely to protect the image of the bureau. Earlier, I handed a report to thethen Deputy Commissioner Mendoza regarding said irregularities committed sometime in1984-85, particularly by Atty . Geronga, R-5 and Director Col . Alfarce No investigation wasundertaken inspite of my report . In the meanwhile, the FMIB-R-5 always appeared in thelocal newspaper regarding the unscrupulous behavior of the director which not only affectsthe good image of our organization but also of the subordinates of the office. Thus, I felt in


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goodfaith that the matter should be brought to the attention of the Deputy ExecutiveSecretary of Malacaang so that appropriate action can be taken for the good of theservice . I submit that I did this in my honest belief that it is my duty to do so as a publicservant and a loyal member of this organization.

. . . I reiterate that the same was done in good faith and not for any selfish motive . 8

Reinstatement was, however, denied by respondent Rabina in a letter dated 11 August 1987, which in part read:

xxx xxx xxx

Be informed that Commissioner, EIIB has directed the Investigation & Prosecution Officethis bureau to conduct a brief investigation on your case and the established facts showthat this office committed no injustice. Your violation of office rules and regulations werethe grounds for your termination for loss of confidence . 9

Petitioner's request for payment of the cash equivalent of his accrued leave

credits corresponding to a total of 179 days was also denied by respondentVillamor on the ground that:

. . . Section 6 of the Civil Service rules and laws provides that IX . . . the removal for causeof an official or employee shall carry with it forfeiture of . . . other benefits arising from hisemployment. 10

Petitioner then filed a petition for review with prayer for reinstatement and backwagesbefore respondent Civil Service Commission ("Commission") which the Commissiondenied. Respondent Commission held that the grant of petitioner's application for vacation leave, notwithstanding the accumulation of sufficient leave credits, wasdiscretionary on the part of respondent Rabina, the approving official, citing In re :Nicolasura Victor (CSC Res. No. 88-251) dated 25 May 1988 and Section 20 of theRevised Civil Service Rules which read:

Leave of absence for any reason other than the serious illness of an officer or employee . . . must be contingent upon the needs of the service. 11

Having failed to get reconsideration, petitioner came to this Court on the presentPetition for Certiorari .

Petitioner challenges his dismissal as being arbitrary. The propriety of petitioner'salleged unlawful removal boils down to the question of whether or not an employeeholding a position considered as "primarily confidential" may be dismissed on groundsof "loss of confidence" by the appointing authority on the basis of the employee's havinggone on unauthorized leave of absence and of his having filed a confidential report onone of his superiors directly with the Office of the President.

We begin with the proposition that the effects of characterizing a position as "primarilyconfidential" are two-fold: firstly, such characterization renders inapplicable the ordinaryrequirement of filling up a position in the Civil Service on the basis of merit and fitness


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as determined by competitive examinations; and secondly, while the 1987 Constitutiondoes not exempt such positions from the operation of the principle set out in Article IX(B), Section 2 (3) of the same Constitution that "no officer or employee of the CivilService shall be removed or suspended except for cause provided by law," the "causeprovided by law" includes "loss of confidence." 12 It is said to be a settled rule that those

holding primarily confidential positions "continue for so long as confidence in themendures. Their termination can be justified on the ground of loss of confidence becausein that case their cessation from office involves no removal but the expiration of their term of office. 13 Notwithstanding the refined distinction between removal from office andexpiration of the term of a public officer, the net result is loss of tenure upon loss of confidence on the part of the appointing power.

A position in the Civil Service may be considered primarily confidential: (1) when thePresident of the Philippines, upon recommendation of the Civil Service Commission,has declared that position to be primarily confidential; or (2) when the position, given thecharacter of the duties and functions attached to it, is primarily confidential in nature. 14

All positions in the EIIB were apparently declared as "highly confidential" by former President Marcos in Letter of Implementation No. 71, dated 4 September 1978, whichreads in part as follows:

Pursuant to Presidential Decree No. 1458, dated June 11, 1978, and letter dated August18, 1978 of the President/Prime Minister creating the Bureau of Intelligence andInvestigation (BII) [now the EIIB], the following directives are hereby issued for immediateimplementation by the new Bureau:

xxx xxx xxx

4. The Commissioner of the BII with the approval of the Ministry of Finance, is herebyinstructed to organize and appoint his staff . . . All positions in the BII are highly confidential in nature and incumbents thereof may be removed for loss of confidence by appropriateauthority . 15

When one examines, however, the actual duties and functions of petitioner as a"Management and Audit Analyst I" in the FMIB, as set out in the job description of thatposition, one is struck by the ordinary and day to day character of such duties andfunctions:

Prepares required survey materials, work plans and schedules; gathers data and makesinvestigations and analyzes ( sic ) of administrative problems relating to organization,

personnel and procedure ; supplements data gathered by interviewing heads of office or private individuals or by observing actual operations; examines and analyzesreorganization proposals in the light gathered and facts observed; analyzes causes of inefficiency or lack of economy , undertakes required study and research; prepares surveyreports and write ( sic ) drafts of tentative organization plans , discusses and justifies suchplans to supervisor and appropriate bodies; maintains close liaison work with head of offices or organizations studies operational methods and procedures of the organization tosimplify the work and improve efficiency; studies and recommends measures to insureindustrial safety and prevention of accidents; supervises the installation of management control devices ; assists in the compilation, analysis and interpretation of important statisticsfor use of management . 16 (Emphasis Supplied)


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It is thus useful to recall that in Piero v . Hechanova, 17 the Court, speakingthrough J.B.L. Reyes, J ., said:

It is plain that, at least since the enactment of the 1959 Civil Service Act (R.A. 2260), it isthe nature of the position which finally determines whether a position is primarilyconfidential, policy determining or highly technical. Executive pronouncements can be nomore than initial determinations that are not conclusive in case of conflict . And it must beso, or else it would then lie within the discretion of the Chief Executive to deny to anyofficer, by executive fiat the protection of section 4, Article XII, of the Constitution. 18

(Citation omitted; emphasis partly in the original and partly supplied)

The above doctrine was reiterated and relied upon in Borres v . Court of Appeals .19 It is also important to note that the concept constitutive of "primarilyconfidential" positions has been narrowly drawn by this Court. Thus, in De losSantos v . Mallare, 20 the Court said, through Mr. Justice Pedro Tuason:

. . . [T]hree specified classes of positions policy determining, primarily confidential andhighly technical are excluded from the merit system and dismissal at pleasure of officersand employees appointed therein is allowed by the Constitution. These positions involvethe highest degree of confidence, or are closely bound up with and dependent on other positions to which they are subordinate, or are temporary in nature. It may truly be said thatthe good of the service itself demands that appointments coming under this category beterminable at the will of the officer that makes them.

xxx xxx xxx

Every appointment implies confidence, but much more than ordinary confidence is reposed in the occupant of a position that is primarily confidential . The latter phrase denotes not only confidence in the aptitude of the appointee for the duties of the office but primarilyclose intimacy which insures freedom of [discussion and delegation and reporting] without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state . . . . . 21

The positions which this Court has in the past characterized as "primarilyconfidential" include: private secretaries of public functionaries; 22 a securityofficer assigned as bodyguard of the person of a public officer and responsiblefor taking security measures for the safety of such official, 23 City Legal Officer of Davao City vis-a-vis the Davao City Mayor; 24 Provincial Attorney of IloiloProvince vis-a-vis the Governor of Iloilo Province. 25 It is also instructive to refer tosome of the positions which the Court has refused to designate as "primarilyconfidential:" e.g., members of the Customs Police Force or Port Patrol; 26

Special Assistant to the Governor of the Central Bank, in charge of the ExportDepartment; 27 Senior Executive Assistant, Clerk I and Supervising Clerk I andstenographer in the Office of the President. 28

It is evident that the duties of petitioner related to the study and analysis of organizational structures and procedures, with the end in view of makingrecommendations designed to increase the levels of efficiency and coordination withinthe organization so analyzed. Moreover, the modest rank and fungible nature of theposition occupied by petitioner, is underscored by the fact that the salary attached to it


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was no more than P1,500.00 a month at the time he went on leave (October, 1986).There thus appears nothing to suggest that petitioner's position was "highly" or even"primarily confidential" in nature. The fact that petitioner may, sometimes, handle"confidential matters" or papers which are confidential in nature, does not suffice tocharacterize their positions as primarily confidential. 29

Accordingly, we believe and so hold that petitioner Tria's particular position of "Management and Audit Analyst I" is not a "primarily confidential" position so as torender him removable upon, or the expiration of his term of office concurrent with, "lossof confidence" on the part of the appointing power who, as already noted, was the thenCommissioner of the FMIB.

If petitioner Tria was not legally removable upon "loss of confidence" on the part of theFMIB Commissioner, was there nonetheless legal cause provided by law for hisdismissal from the service?

We believe that the constitutional prohibition against suspension or dismissal of anofficer or employee of the Civil Service "except for cause provided by law" is a guarantyof both procedural and substantive due process. Procedural due process requires thatsuspension or dismissal come, as a general rule, only after notice and hearing. 30 In thecase at bar, as already noted, the EIIB issued a Memorandum to petitioner, after he wasalready in Manila, requiring him to explain why no disciplinary action should be takenagainst him for having submitted a report directly to the Office of the President,Malacaang, 'which adversely affected the bureau's image and placed theCommissioner in an embarrassing position," which Memorandum was not received bypetitioner. However, after his return from abroad and upon request of petitioner, another investigation was conducted by the EIIB where petitioner had an opportunity to explain

his side of the matter. The Court considers that, under the circumstances of this casethe subsequent investigation constituted substantial compliance with the demands of procedural due process.

Substantive due process requires, among other things, that an officer or employee of the Civil Service be suspended or dismissed only "for cause," a phrase which, so far asconcerns dismissals of public officers not holding positions which are "policydetermining, highly technical or primarily confidential," has acquired, according to thisCourt, the following "well-defined concept."

It means for reasons which the law and sound policy recognize as sufficient warrant for removal, that is, legal cause, and not merely causes which the appointing power in theexercise of discretion may deem sufficient . It is implied that officers may not be removed at the mere will of those vested with the power of removal or without cause. Moreover, thecause must relate to and effect the administration of the office , and must be restricted tosomething of a substantial nature directly affecting the rights and interests of the public . 31

In the instant case, we have noted earlier that petitioner was charged with violation of official rules and regulations consisting more specifically, of:. (1) having gone on anextended unauthorized leave of absence; (2) having bypassed official channels in


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transmitting a report concerning alleged misfeasance or non-feasance on the part of asuperior officer of the EIIB directly to the Office of the President through the DeputyExecutive Secretary, rather than through the respondent EIIB Commissioner.

It is true that petitioner was probably precipitate in taking off for abroad before his

application for vacation leave was formally approved by the FMIB Central Office inQuezon City. We must, however, take into account the circumstance that his applicationfor leave without pay had been approved or indorsed for approval by his immediatesuperior in the FMIB, Region 5 Office, where petitioner was assigned, and so petitioner was not completely without basis in believing that the formal approval of his applicationin the FMIB Central Office would follow as a matter of course. It is pertinent to point outthat his immediate superiors in the Region 5, FMIB Office were the persons in the bestposition to ascertain whether his presence in the Regional office during the periodcovered by his application for leave without pay was really demanded by imperiousexigencies of the service. The record is bare of any indication what those exigencieswere, at that particular time. There is also no showing that the FMIB actually suffered

any prejudice by reason of the non-availability of the services of petitioner during hisleave without pay. Petitioner was, it should be recalled, a "Management and Audit Analyst," a humble rank separated by many ranks from the appointing power, the FMIBCommissioner. It thus appears to the Court that, on balance, the extreme penalty of dismissal from the service was unduly harsh in the case of petitioner; that suspensionfor thirty (30) days would have been more than adequate punishment for precipitatelygoing on leave without pay prior to formal approval of his leave by the Central Office of the FMIB; and that the real and efficient cause of his dismissal from the service was thefact that he had bypassed official channels in rendering the confidential reportaddressed to the Deputy Executive Secretary, Office of the President, concerning thethen Regional Director of FMIB, Region 5.

After careful consideration, we believe and so hold that, in the circumstances of thiscase, that act of petitioner did not constitute lawful cause for his dismissal from theservice. We believe, on the contrary, that petitioner's case is covered by the rule in Gray v . De Vera . 32 Benjamin A. Gray was Secretary of the Board of Directors of the People'sHomesite and Housing Corporation ("PHHC"). He sent a telegram to President CarlosP. Garcia reading as follows:

Aye suggest complete revamp PHHC Board's top members should not usurp managementfunctions (comma) should willingly attend meetings (comma) should not grab as quotasdwelling awards despite applicants of long standing (comma) should not divide amongthemselves emergency positions (comma) should create positions only in case of necessity

and not because they want to accommodate their useless men (comma) and shouldrespect civil servicelaw. 33

On the following day, the PHHC Board of Directors terminated Gray's services"on account of loss of confidence due to treachery or disloyalty to the Board." Inholding that Gray had been unlawfully dismissed and in ordering hisreinstatement with backwages, this Court held:


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The removal of Board Secretary Gray from the primarily confidential position to which hehad been permanently appointed was illegal in view of the following considerations:

(1) There was no lawful cause for removal . The sending of the telegram of January 12,1959 to President Carlos P . Garcia suggesting a complete revamp of the Board of Directors of the PHHC due to the Board's acts of management and misconduct, the most

serious of which was that the Directors were grabbing as 'quotas dwelling awards despiteapplicants of long standing,' was an act of civic duty . The telegram was a privileged communication presumably made in good faith and capable of being substantiated by evidence .

According to the testimony of Director Manuel T. Leelin the act of Board Secretary Gray insending the telegram of January 12,1959 to the President of the Philippines was an act of treachery or disloyalty to the Board. . . .

xxx xxx xxx

We cannot agree, for the following reasons:

First . As pointed out, the sending of the telegram to the President of the Philippines was anact of civic duty. The telegram was a privileged communication presumably sent in goodfaith and capable of being proved by evidence.

Second . The position of secretary to the board of a government corporation was declaredby the President in Executive Order No. 399 primarily confidential in nature with theobvious intent that the position be filled by an appointee of unquestioned honesty and integrity . Hence, the act of Board Secretary Gray in reporting to the President the Board'sact of mismanagement and misconduct was in consonance with the honesty and integrity required for the position .

Assuming that Gray owed loyalty to the Board, that loyalty was in the interest of good government and not in the personal interest of the Directors to the extent of concealing theshenanigans of the Board. . . . 34

In the case at bar, we note that petitioner sent his confidential (and presumably sealed)report to an office having overall administrative supervision and control over the FMIB(i .e ., the Office of the President); the report was not, in other words, sent either to themedia or to an office or agency having no administrative jurisdiction over the publicofficial or office complained of. That report was a privileged communication and theauthor thereof enjoys the benefit of the presumption that he acted in good faith. Therespondents have not alleged that petitioner acted with malice in fact. We do not believethat petitioner's act constituted serious misconduct but rather, on the contrary, was anact of personal and civic courage by which petitioner exhibited his loyalty to the FMIBas an institution and ultimately to the Government of the Republic of the Philippines.

Considerations of fundamental public policy thus compel us to hold that petitioner wasdismissed without lawful cause and must, therefore, be reinstated to the position hepreviously held or, If that position is no longer available, to some other position in theEIIB of equivalent rank and emoluments. In addition, petitioner is entitled to payment of his backwages (basic salary plus allowances, if any computed from the time of hisreturn from his leave of absence, minus an amount equivalent to one-month's


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backwages representing the appropriate penalty for petitioner's infraction of ordinaryoffice rules.

WHEREFORE, the Petition for Certiorari is hereby GRANTED DUE COURSE, theComments filed by respondents are hereby CONSIDERED as their Answers to the

Petition and Resolutions Nos. 88-150 and 88-787 of public respondent Civil ServiceCommission as well as Letter-Order No. 06-87 of public respondent EIIB Commissioner,are hereby ANNULLED and SET ASIDE. Public respondents are hereby ORDERED toreinstate forthwith petitioner to his former position, or to a position of equivalent rankand compensation, and to pay him the backwages, allowances and other benefitslawfully due him counted from May 1987, when he returned to the country from hisleave of absence, until actual reinstatement, less one month's backwages. No costs.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Gancayco,

Padilla, Bidin, Sarmiento, Grio-Aquino, Medialdea, Regalado and Davide, Jr., JJ.,concur.


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G.R. No. 91602 February 26, 1991

HONORABLE SIMPLICIO C. GRIO, SIXTO P. DEMAISIP, SANTOS B. AGUADERA,

MANUEL B. TRAVIA and MANUEL M. CASUMPANG,petitioners,vs.CIVIL SERVICE COMMISSION, TEOTIMO ARANDELA, CIRILO GELVEZON,TEODULFO DATO-ON, and NELSON GEDUSPAN,respondents .

Sixto P. Demaisip for petitioners.

Rex C. Muzones for private respondents.

Thelma A. Panganiban-Gaminde, Rogelio C. Limare and Normita M. Llamas-Villanuevafor Civil Service Commission.

GANCAYCO,J.: p

The main issue in this petition is whether or not the position of a provincial attorney andthose of his legal subordinates are primarily confidential in nature so that the services of those holding the said items can be terminated upon loss of confidence.

The facts of this case are simple.

Petitioner Sixto Demaisip was the first appointed Provincial Attorney of Iloilo. He heldthis position from April 3, 1973 up to June 2, 1986 when he offered to resign and hisresignation was accepted by the then Acting Governor. In his resignation letter,petitioner Demaisip recommended the elevation of respondent Teotimo Arandela fromSenior Legal Officer to Provincial Attorney. OIC Governor Licurgo Tirador later ondecided to appoint respondent Arandela as the Provincial Attorney. Respondent CiriloGelvezon, on the other hand, was promoted from Legal Officer II to Senior LegalOfficer. Respondents Teodolfo Dato-on and Nelson Geduspan were appointed to theposition of LegalOfficer II.

On February 2, 1988, petitioner Simplicio Grio assumed office as the newly electedgovernor of Iloilo. One month later, he informed respondent Arandela and all the legalofficers at the Provincial Attorney's Office about his decision to terminate their services.In his letter, petitioner Grio made mention of an article pertaining to the Iloilo office of the Provincial Attorney which appeared in the Panay News and which "undermined thattrust and confidence" that he reposed on them. Petitioner Demaisip was reappointed byGovernor Grio as the Provincial Attorney, The latter, on the other hand, arranged thereplacements of the other legal officers. Respondent Cirilo Gelvezon was replaced by


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petitioner Santos Aguadera, respondent Nelson Geduspan was replaced by petitioner Manuel Casumpang and petitioner Manuel Travia took the place of respondentTeodolfo Dato-on.

On March 15, 1988, petitioner Governor Grio formally terminated the services of the

respondents herein on the ground of loss of trust and confidence. This action taken bythe governor was appealed by respondents to the Merit Systems Protection Board of the Civil Service Commission.

On March 9, 1989, the Merit Systems Board issued an Order declaring the respondents'termination illegal and ordering that they be immediately restored to their positions withback salaries and other emoluments due them. This was appealed by petitioner Grio tothe Civil Service Commission.

In Resolution No. 89-736 dated October 9, 1989, the Civil Service Commission affirmedthe Order of the Merit Systems Protection Board, and directed that the respondents be

restored to their former legal positions and be paid back salaries and other benefits.Petitioners filed a Motion for Reconsideration of the above-mentioned Decision of theCivil Service Commission. The motion was denied on December 7, 1989 in ResolutionNo. 89-920.

Hence, this petition for review whereby petitioners seek the reversal of Resolution No.89-736 of the Civil Service Commission and Resolution No. 89-920 which denied theMotion for Reconsideration.

We shall first discuss whether the position of a provincial attorney is primarily

confidential so that the holder thereof may be terminated upon loss of confidence.In Cadiente vs . Santos, 1 this Court ruled that the position of a city legal officer isundeniably one which is primarily confidential in this manner:

In resolving the merits of the instant case, We find as an undeniable fact that the position of a City Legal Officer is one which is "primarily confidential." This Court held in the case of Claudio vs. Subido, L-30865, August 31, 1971, 40 SCRA 481, that the position of a CityLegal Officer is one requiring that utmost confidence on the part of the mayor be extendedto said officer. The relationship existing between a lawyer and his client, whether a privateindividual or a public officer, is one that depends on the highest degree of trust that thelatter entertains for the counsel selected. As stated in the case of Pinero vs. Hechanova, L-22562, October 22, 1966, 18 SCRA 417 ( citing De los Santos vs. Mallare, 87 Phil. 289),the phrase "primarily confidential" "denotes not only confidence in the aptitude of theappointee for the duties of the office but primarily close intimacy which insures freedom of intercourse, without embarrassment or freedom from misgivings of betrayals of personaltrust on confidential matters of state. (Emphasis supplied.)

The tenure of officials holding primarily confidential positions ends upon loss of confidence,because their term of office lasts only as long as confidence in them endure; and thus their cessation involves no removal (Corpus vs. Cuaderno, L-23721, March 31, 1965, 13 SCRA591-596). When such confidence is lost and the officer holding such position is separated


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from the service, such cessation entails no removal but an expiration of his term. In thecase of Hernandez vs. Villegas, L-17287, June 30, 1965, 14 SCRA 548, it was held

It is to be understood of course that officials and employees holding primarily confidentialpositions continue only for so long as confidence in them endures. The termination of their official relation can be justified on the ground of loss of confidence because in that case

their cessation from office involves no removal but merely the expiration of the term of office two different causes for the termination of official relations recognized in the Lawof Public Officers.

In the case at bar, when the respondent City Mayor of Davao terminated the services of thepetitioner, he was not removed or dismissed. There being no removal or dismissal it couldnot, therefore, be said that there was a violation of the constitutional provision that "noofficer or employee in the civil service shall be suspended or dismissed except for cause asprovided by law" (Article XII-B, Section 1 (3), 1973 Constitution).

The matter of expiration of a term of an officer holding a primarily confidential position, asdistinguished from a removal or dismissal, was further explained by this Court, in the caseof Ingles vs. Mutuc, L-20390, November 29, 1960, 26 SCRA 171, in this wise:

When an incumbent of a primarily confidential position holds office at the pleasure of theappointing power, and the pleasure turns into a displeasure, the incumbent is not removedor dismissed from office his term merely expires, in much the same way as an officer,whose right thereto ceases upon expiration of the fixed term for which he had beenappointed or elected, is not and cannot be deemed removed or dismissed therefrom, uponexpiration of said term.

The main difference between the former the primary confidential officer and the latter is that the latter's term is fixed or definite, whereas that of the former is not pre-fixed, butindefinite, at the time of his appointment or election, and becomes fixed and determinedwhen the appointing power expresses its decision to put an end to the services of theincumbent. When this event takes place, the latter is not removed or dismissed from office

his term merely expired.

The foregoing merely elaborates what this Court, speaking thru Justice J.B.L. Reyes,stressed in the case Corpus vs. Cuaderno, L-23721, March 31, 1965, 13 SCRA 591. Insaid case We stated that:

The tenure of officials holding primarily confidential positions ends upon loss of confidence,because their term of office lasts only as long as confidence in them endures, and thustheir cessation involves no removal. 2

In Besa vs. Philippine National Bank, 3 where petitioner, who was the Chief LegalCounsel with the rank of Vice President of the respondent Philippine National Bank,

questioned his being transferred to the position of Consultant on Legal Matters in theOffice of President, this Court, considering said position to be primarily confidential held

It cannot be denied of course that the work of the Chief Legal Counsel of respondent Bank,as of any lawyer for that matter, is impressed with a highly technical aspect. As had beenpointed out, however, it does not mean that thereby a client is precluded from substitutingin his stead another practitioner. That is his right; Ms decision to terminate the relationship


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once made is impressed with the attribute of finality. The lawyer cannot be heard tocomplain; it is enough that his right to compensation earned be duly respected.

In that sense, it is equally clear that where the position partakes of the attributes of beingboth technical and confidential, there can be no insistence of a fixed or a definite term if thelatter aspect predominates. To paraphrase the language of the Chief Justice in the opinion

previously cited, the incumbent of a primarily confidential position, as was the case of petitioner, should realize that at any time the appointing power may decide that his servicesare no longer needed. As thus correctly viewed, Corpus v. Cuaderno cannot be read aslending support to petitioner's efforts to retain his position as Chief Legal Counsel of respondent Bank, contrary to its wishes as so explicitly declared in its Resolution No. 1053.

The question now is should the ruling in Cadiente be made applicable to a provincialattorney? According to the petitioners, Cadiente must be applied because by the natureof the functions of a provincial attorney and a city legal officer, their positions are bothprimarily confidential. Respondents, on the other hand, maintain that since the CivilService Commission has already classified the position of private respondent Arandelaas a career position and certified the same as permanent, he is removable only for

cause, and therefore Cadiente is not applicable.

We agree with the petitioners and answer the question earlier propounded in theaffirmative. A city legal officer appointed by a city mayor to work for and in behalf of thecity has for its counterpart in the province a provincial attorney appointed by theprovincial governor. In the same vein, a municipality may have a municipal attorney whois to be named by the appointing power. The positions of city legal officer and provincialattorney were created under Republic Act No. 5185 which categorized them together aspositions of "trust", to wit:

Sec. 19. Creation of positions of Provincial Attorney and City Legal officer . To enable

the provincial and city governments to avail themselves of the full time and trusted servicesof legal officers, the positions of provincial attorney and city legal officer may be createdand such officials shall be appointed in such manner as is provided for under Section four of this Act. For this purpose the functions hitherto performed by the provincial and cityfiscals in serving as legal adviser and legal officer for civil cases of the province and cityshall be transferred to the provincial attorney and city legal officer, respectively. (Emphasissupplied.) 4

By virtue of Republic Act No. 5185, both the provincial attorney and city legalofficer serve as the legal adviser and legal officer for the civil cases of theprovince and the city that they work for. Their services are precisely categorizedby law to be "trusted services."

A comparison of the functions, powers and duties of a city legal officer as provided inthe Local Government Code with those of the provincial attorney of Iloilo would revealthe close similarity of the two positions. Said functions clearly reflect the highlyconfidential nature of the two offices and the need for a relationship based on trustbetween the officer and the head of the local government unit he serves. The "trustedservices" to be rendered by the officer would mean such trusted services of a lawyer tohis client which is of the highest degree of trust. 5


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The fact that the position of respondent Arandela as provincial attorney has alreadybeen classified as one under the career service and certified as permanent by the CivilService Commission cannot conceal or alter its highly confidential nature. As inCadiente where the position of the city legal officer was duly attested as permanent bythe Civil Service Commission before this Court declared that the same was primarily

confidential, this Court holds that the position of respondent Arandela as the provincialattorney of Iloilo is also a primarily confidential position. To rule otherwise would betantamount to classifying two positions with the same nature and functions in twoincompatible categories. This being the case, and following the principle that the tenureof an official holding a primarily confidential position ends upon loss of confidence, 6 theCourt finds that private respondent Arandela was not dismissed or removed from officewhen his services were terminated. His term merely expired.

The attorney-client relationship is strictly personal because it involves mutual trust andconfidence of the highest degree, irrespective of whether the client is a private personor a government functionary. 7 The personal character of the relationship prohibits its

delegation in favor of another attorney without the client's consent.8

However, the legal work involved, as distinguished from the relationship, can bedelegated. 9 The practice of delegating work of a counsel to his subordinates is apparentin the Office of the Provincial Attorney wherein it can be gleaned from the power granted to such officer to exercise administrative supervision and control over the actsand decision of his subordinates. 10

It is therefore possible to distinguish positions in the civil service where lawyers act ascounsel in confidential and non-confidential positions by simply looking at the proximityof the position in question in relation to that of the appointing authority. Occupants of

such positions would be considered confidential employees if the predominant reasonthey were chosen by the appointing authority is the latter's belief that he can share aclose intimate relationship with the occupant which measures freedom of discussion,without fear of embarrassment or misgivings of possible betrayal of personal trust onconfidential matters of state. 11

This implies that positions in the civil service of such nature would be limited to thosenot separated from the position of the appointing authority by an intervening publicofficer, or series of public officers, in the bureaucratic hierarchy. This is an additionalreason why the positions of "City Legal Officer" and "Private Secretary to the President"were considered primarily confidential by the Court. 12 On the other hand, a customspoliceman serving in the Harbor Patrol, in relation to the Commissioner of Customs, andan executive assistant, stenographer, or clerk in the Office of the President, were notconsidered so by the Court. 13

There is no need to extend the professional relationship to the legal staff which assiststhe confidential employer above described. Since the positions occupied by thesesubordinates are remote from that of the appointing authority, the element of trustbetween them is no longer predominant. The importance of these subordinates to the


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appointing authority now lies in the contribution of their legal skills to facilitate the workof the confidential employee. At this level of the bureaucracy, any impairment of theappointing authority's interest as a client, which may be caused through the breach of residual trust by any of these lower-ranked lawyers, can be anticipated and preventedby the confidential employee, as a reasonably competent office head, through the

exercise of his power to "review, approve, reverse, or modify" their acts and decisions.14

At this level, the client can be protected without need of imposing upon the lower-rankedlawyers the fiduciary duties inherent in the attorney-client relationship. Hence, there isnow no obstacle to giving full effect to the security of tenure principle to these membersof the civil service.

Thus, with respect to the legal assistants or subordinates of the provincial attorneynamely, Cirilo Gelvezon, Teodolfo Dato-on and Nelson Geduspan, the Cadiente andBesa rulings cannot apply. To recall, said cases specifically dealt with the positions of city legal officer of the city and chief legal counsel of the PNB. There was no referenceto their legal staff or subordinates. As head of their respective departments, the city

legal officer, the provincial attorney or the PNB chief legal counsel cannot be likened totheir subordinates. The latter have been employed due to their technical qualifications.Their positions are highly technical in character and not confidential, so they arepermanent employees, and they belong to the category of classified employees under the Civil Service Law. Thus, the items of Senior Legal Officer and Legal Officer II remainpermanent as classified by the Civil Service Commission. Consequently, the holders of the said items, being permanent employees, enjoy security of tenure as guaranteedunder the Constitution.

This notwithstanding, petitioners contend that respondents are estopped from protestingthe termination of their services because of their actions which, if taken together, would

allegedly reveal that they have accepted their termination, such as: applying for clearances, not remaining in office and signing their payroll for March 15, 1988acknowledging therein that their appointment "terminated/expired."

We cannot agree with petitioners in this regard. The respondents did the above-mentioned acts because their services were actually dispensed with by petitioner Governor Grio. As a consequence of their termination, they could not remain in officeand as required of any government employee who is separated from the governmentservice, they had to apply for clearances. However, this did not mean that they believedin principle that they were validly terminated. The same should not prevent them fromlater on questioning the validity of said termination.

The facts clearly show that respondents protested their termination with the CivilService Commission within a month from the time of their termination. The Court holdsthat the said protest was filed within a reasonable period of time.

WHEREFORE, and in view of the foregoing, the petition is GRANTED with respect tothe position of provincial attorney of Iloilo. Respondent Teotimo Arandela is herebyordered to vacate said position upon the finality of this Decision. The Decision of the


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respondent Civil Service Commission pertaining to respondents Cirilo Gelvezon,Teodolfo Dato-on and Nelson Geduspan is hereby AFFIRMED.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Bidin, Medialdea and Regalado, JJ., concur.

Gutierrez, Jr., J., concurs in the result.

Grio-Aquino and Davide, Jr., JJ., took no part.

Separate Opinions

PADILLA,J., concurring and dissenting:

I concur with the majority opinion in its classification of the positions of legal assistantsor subordinates of the Provincial Attorney as highly technical in character, falling under the category of permanent employees, with security of tenure under the civil servicesystem. I dissent, however, from the majority opinion in its treatment of the position of Provincial Attorney, for the following reasons:

The position of Provincial Attorney was created under Sec. 19 of RA 5185 to enable theprovincial government to avail of the legal advice and services of its own counsel in civilcases affecting the province. Although the power to appoint the Provincial Attorney isvested in the Governor, however, the said local public officer is an employee of theprovincial government to which he owes his loyalty, and not to the elected Governor, for he is not part of the latter's personal or confidential staff. As a provincial public officer,the Provincial Attorney's suspension, removal or transfer is subject to the provisions of the civil service law, rules and regulations. In other words, he may not be removed or suspended except for cause provided by law. More specifically, he may be removedfrom office for incompetence, dishonesty, or other misconduct but not for the Governor'sloss of confidence in him, which by its very nature, can be as broad as anythingimaginable.

In its resolution, the Civil Service Commission has classified the position of Provincial Attorney as a career service position and a permanent one. It is but proper that a career position be developed for the Provincial Attorney to minimize the "spoils system",


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whereby everytime a new Governor is elected, he can appoint his own man byterminating the services of the one holding the position, regardless of his competenceand performance, on the basis (in reality, pretext) of an alleged "loss of confidence",leaving the appointees to said position at the mercy of the Governor's whims andcaprices. To clothe the Governor with an unlimited or blanket authority to dismiss the

Provincial Attorney on the ground of such generality as "loss of confidence" onlyaggravates the problem which has for too long plagued this country and that is theundue dominance of partisan politics in the appointment and retention of governmentofficers and/or employees. Such practice only hinders the growth of trained-career personnel in the government service resulting in the demoralization of those officersand/or employees who would prefer to stake their fate in the government service on thebasis of merit.

The Office of Provincial Attorney is composed of a Provincial Attorney, one (1) Senior Legal Officer, five (5) Legal Officers and its administrative staff. Private respondentTeotimo Arandela rose from the ranks, wherein he started as Legal Officer III, to Senior

Legal Officer and finally to Provincial Attorney, under the terms of three (3) Governors,before Gov. Grio was elected to office. 1 To unceremoniously terminate privaterespondent Arandela, who has risen from the ranks and who has been in governmentservice for many years, at the pleasure or fancy of an incumbent Governor, is, to mymind, contrary to the constitutional provision that "no officer or employee of the civilservice shall be removed or suspended except for cause provided by law."

Abuse of power in the termination and/or suspension of an appointee to the position of Provincial Attorney or of a similar position on the basis of "loss of confidence" which isnot duly substantiated should not be allowed. The reason stated by the Governor for hisalleged loss of trust and confidence in private respondent was that " . . . an article

pertaining to your office which appeared yesterday in Panay News undermined thattrust and confidence which should otherwise prevail." Whatever the content of saidarticle which allegedly triggered the loss of confidence on the part of the Governor in theprivate respondent was not specifically stated in his letter dated 1 March 1988dispensing with the services of the private respondent. 2 The reason given by theGovernor in terminating private respondent's services does not only appear unsubstantiated but is vague and uncertain.

The presence of Cadiente vs . Santos, 142 SCRA 280 (1980), upon which the majorityopinion relies in support of its thesis that the Provincial Attorney may be terminated atany time by the Provincial Governor upon loss of confidence, should be the last thing tobother one in attempting to establish a wholesome doctrine in the law of public officers.

ACCORDINGLY, I vote to DISMISS the Petition and to AFFIRM the questioned CivilService Commission rulings in favor of private respondents.

SARMIENTO,J., concurring & dissenting:


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I concur with the first part of the ponencia holding that the position of a provincialattorney appointed by the provincial governor being akin to that of a city legal officer appointed by the city mayor, is primarily confidential and hence, the termination fromoffice of the provincial attorney follows as a consequence of the loss of confidence uponhim by the provincial governor.

However, I can not agree with the second part of the decision when it refused to applythe same aforementioned ruling to the case of legal assistants or subordinate lawyerson the justification that the earlier cases of Cadiente and Besa only specifically dealtwith the positions of city legal officer and PNB chief legal counsel, respectively, and thatthe positions of legal assistants or subordinate lawyers are highly technical in character and not confidential.

While it is true that Cadiente and Besa only involved a city legal officer and the PNBchief legal counsel, the same cases do not by any means preclude the application of thesaid precedents to legal assistants or subordinate lawyers in appropriate cases when

such issue is squarely raised as presently. Anent the claim that the positions of assistant legal officers or subordinate lawyers ishighly technical and not confidential, this contention is not supported by any evidenceon record or any basis in law. On the contrary, the function of an assistant or asubordinate legal officer, as can be gleaned from the Local Government Code, is to"assist the chief officer and perform such duties as the latter may assign him." I can notsee how such a function can be any less confidential than that of the chief legal officer.

Absent any showing of substantial distinctions between the nature of the work or function of the provincial attorney and that of the legal assistants or subordinate

lawyers, it is logical to presume that both public officers handle confidential mattersrelating to the legal aspect of provincial administration and that their relationship withtheir appointing power is that of a lawyer and his client requiring utmost confidence andthe highest degree of trust. Hence, both positions being primarily confidential, thetermination from office of the legal assistants or subordinate lawyers must likewisefollow as a consequence of the loss of confidence upon them by the provincialgovernor.


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G.R. No. 116041 March 31, 1995

NESCITO C. HILARIO,petitioner,

vs.CIVIL SERVICE COMMISSION and CHARITO L. PLANAS,respondents.

ROMERO,J.:

This is a petition for certiorari with prayer for the issuance of a Temporary RestrainingOrder and Preliminary Injunction. Petitioner seeks to declare CSC Resolution No. 94-3336 dated June 23, 1994 and Resolution No. 93-4067 dated September 21, 1993 of the Civil Service Commission (CSC) null and void.

On August 18, 1986, petitioner was appointed as City Attorney by the then OIC BrigidoR. Simon, Jr., at that time the Officer-In-Charge of the Office of the Mayor of QuezonCity under the Freedom Constitution of 1986.

On July 24, 1992, the newly-elected mayor, Ismael Mathay, Jr. took over from Mayor Simon.

Mayor Mathay issued a letter 1 dated July 24, 1992 to petitioner, which states:

In the absence of a tender of resignation on your part from your present position as City Attorney (City Legal Officer), please be informed that pursuant to Sec. 481, Art. II of theLocal Government Code of 1991 providing that the position of City Legal Officer is co-terminous with the appointing authority, you are considered resigned as of June 30, 1992.

On July 1, 1993, respondent Vice Mayor Charito L. Planas of Quezon City filed acomplaint 2 with the CSC against petitioner and a certain Jose L. Pecson praying thatrespondents be found administratively liable for usurpation, grave misconduct, beingnotoriously undesirable, gross insubordination, and conduct grossly prejudicial to thebest interest of the service.

On September 21, 1993, the CSC issued Resolution No. 93-4067, 3 the dispositiveportion of which states:

WHEREFORE, foregoing premises considered, the Commission resolves to hold inabeyance any administrative disciplinary action against Atty. Nescito C. Hilario. However,

Atty. Hilario should not be allowed to continue holding the position of the Legal Officer (City Attorney) of Quezon City.

Petitioner filed a Motion for Reconsideration which was denied by the CSC in itsResolution No. 94-3336, 4 the dispositive portion of which states:


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WHEREFORE, foregoing premises considered, the Commission hereby resolves to denythe motion for reconsideration of Atty. Nescito Hilario. Accordingly, CSC Resolution No. 93-4067 dated September 21, 1993 stands.

The Commission hereby orders the Cashier of the Quezon City government to stoppayment of salaries to Atty. Hilario, otherwise the former shall be personally liable for its

refund.

Let copies of this Resolution be furnished Mayor Ismael A. Mathay, Jr. and Vice Mayor Charito L. Planas at their known addresses.

Hence, this petition.

Petitioner raises the following issues:

(1) petitioner's position as city legal officer is not confidential; and

(2) respondent CSC has no authority to remove or terminate the services of petitioner.

Petitioner alleges that when he was appointed City Attorney, the applicable lawgoverning his appointment was Batas Pambansa Blg. 337 and, therefore, his positionshould not be considered confidential. He argues that although the said position wasconsidered confidential under Republic Act No. 5185, Batas Pambansa Blg. 337impliedly repealed the confidential nature of the position when it expanded the duties of City Attorney.

We find petitioner's contention to be devoid of merit.

The relevant provision of Republic Act No. 5185 states:

Sec. 19. Creation of positions of Provincial Attorney and City Legal Officer. To enablethe provincial and city governments to avail themselves of the full time and trusted servicesof legal officers, the positions of provincial attorney and city legal officer may be createdand such officials shall be appointed in such manner as is provided for under Section four of this Act. For this purpose, the functions hitherto performed by the provincial and cityfiscals in serving as legal adviser and legal officer for civil cases of the province and cityshall be transferred to the provincial attorney and city legal officer, respectively. . . .(Emphasis supplied)

Batas Pambansa Blg. 337, Section 188 enumerates the qualifications, powers andduties of the city legal officer thus:

Sec. 188. Appointment, Qualifications, Compensation, Powers and Duties. (1) The citylegal officer shall be appointed by the city mayor, subject to civil service law, rules andregulation.

(2) No person shall be appointed city legal officer unless he is a citizen of the Philippines,of good moral character, a member of the Philippine Bar, and has acquired experience inthe practice of his profession for at least five years.


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(3) The city legal officer shall receive such compensation, emoluments and allowances asmay be determined by law or ordinance.

(4) The city legal officer shall be the chief legal adviser of the city and all offices thereof,and as such shall:

(a) Represent the city in all civil cases wherein the city or any officer thereof, in his official capacity, is a party;

(b) When required, draft ordinances, contracts, bonds, leases and other instruments involving any interest of the city, and inspect and pass uponany such instruments already drawn;

(c) Give his opinion in writing, when requested by the mayor or thesangguniang panlungsod, upon any question relating to the city or therights or duties of any city officer;

(d) Investigate or cause to be investigated any city officer for neglect or misconduct in office, or any person, firm or corporation holding anyfranchise or exercising any public privilege from the city for failure tocomply with any condition, or to pay any consideration mentioned in thegrant of such franchise or privilege, and recommend appropriate action tothe sangguniang panlungsod and the city mayor;

(e) Institute and prosecute in the city's interest when directed by themayor, a suit on any bond, lease, or other contract upon any breach or violation thereof; and

(f) Exercise such other powers and perform such other duties andfunctions as may be prescribed by law ordinance.

An examination of the provisions of Batas Pambansa Blg. 337 reveals no intention bythe legislature to remove the confidential nature of the position of city legal officer. Whatit does, is to merely specify the various qualifications, powers and duties of a city legalofficer which were not enumerated under Republic Act No. 5185.

We have consistently held in previous cases 5 that the position of City Legal Officer is aconfidential one. In the recent case of Grio v . Civil Service Commission , 6 respondentwas appointed provincial attorney at a time when Batas Pambansa Blg. 337 was ineffect. We held that the position of City Legal Officer has its counterpart in the positionof provincial attorney appointed by the provincial governor, both being positionsinvolving the rendering of trusted services. We said:

By virtue of Republic Act No. 5185, both the provincial attorney and city legal officer serveas the legal adviser and legal officer for the civil cases of the province and the city that theywork for. Their services are precisely categorized by law to be "trusted services."

A comparison of the functions, powers and duties of a city legal officer as provided in theLocal Government Code with those of the provincial attorney of Iloilo would reveal theclose similarity of the two positions. Said functions clearly reflect the highly confidentialnature of the two offices and the need for a relationship based on trust between the officer


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and the head of the local government unit he serves. The "trusted services" to be renderedby the officer would mean such trusted services of a lawyer to his client which is of thehighest degree of trust.

Petitioner next questions the validity of CSC Resolution Nos. 93-4067 and 94-3336 for having been issued without authority. He argues that the CSC "usurped the power,functions, and prerogatives of Mayor Mathay to exclusively discipline and decide onmatters affecting the conduct and employment of Quezon City employees and officialswho are under his control and supervision." 7 CSC Resolution 94-3336 states that: "Itappears that Atty. Hilario was issued an appointment effective August 18, 1986 by thenMayor Simon. Hence, his term of office is deemed to have automatically expired whennow Quezon City Mayor Mathay was elected in office and subsequently assumed hisposition."

Petitioner maintains that the Mayor is the only one who may remove him from officedirectly and not the CSC, which only has appellate powers to review the decision of theMayor.

We find this argument untenable.

Nothing in the Administrative Code precludes the CSC from deciding a disciplinary casebefore it. Precisely, Section 47 thereof, states:

Sec. 47. Disciplinary Jurisdiction. (1) The Commission shall decide upon appeal alladministrative disciplinary cases involving the imposition of a penalty of suspension for more than thirty days, or fine in an amount exceeding thirty days' salary, demotion in rankor salary or transfer, removal or dismissal from office. A complaint may be filed directly withthe Commission by a private citizen against a government official or employee in whichcase it may hear and decide the case or it may deputize any department or agency or

official or group of officials to conduct the investigation. The results of the investigationshall be submitted to the Commission with recommendation as to the penalty to beimposed or other action to be taken.

Although respondent Planas is a public official, there is nothing under the law to preventher from filing a complaint directly with the CSC against petitioner. Thus, when the CSCdetermined that petitioner was no longer entitled to hold the position of City LegalOfficer, it was acting within its authority under the Administrative Code to hear anddecide complaints filed before it.

Petitioner further claims that he is not covered by Republic Act No. 7160, otherwise

known as The Local Government Code of 1991, which explicitly states that the term of the legal officers shall be co-terminous with the office appointing authority. 8 He arguesthat the co-terminous provision applies only to future appointments of the legal officer but does not apply to incumbents.

This provision is but a reiteration of the principle that since the position of City LegalOfficer is a confidential one, it is perforce deemed to be co-terminous with that of theappointing authority.


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Lastly, petitioner alleges that although Mayor Mathay in his letter dated July 24, 1992considered him resigned as of June 30, 1992, the latter still continued to give him legalassignments, a cogent indication that Mayor Mathay still reposes trust and confidence inhim; thus, there is no reason for him to vacate his office.

If Mayor Mathay really intended to retain the services of petitioner as City Legal Officer,he could easily have done so by issuing a formal appointment to this effect. This he didnot do. In fact, at no time during the proceedings before the Civil Service Commissiondid Mayor Mathay ever indicate a desire to rescind his letter dated July 24, 1992. Nor did the Mayor raise any objection when the CSC ordered petitioner to vacate theposition of City Legal Officer in Quezon City.

We can only draw the irresistible conclusion that Mayor Mathay's silence is eloquentproof that he does not intend petitioner to continue in the said position.

WHEREFORE, the instant petition is hereby DISMISSED for lack of merit.

SO ORDERED.

Feliciano, Bidin, Regalado, Davide, Jr., Bellosillo, Melo, Quiason, Puno, Vitug,Kapunan, Mendoza and Francisco, JJ., concur.

Narvasa, C.J., took no part.

Separate Opinion

PADILLA,J., concurring:

In Grio v . Civil Service Commission (194 SCRA 458), I stated in my dissenting opinionthat the position of provincial attorney (and, by analogy, the city attorney) is not primarily

confidential but a career position, and, as such, the holder of the office owes his loyaltynot to the appointing authority (the provincial governor or city mayor) but to theprovincial or city government for which he acts as counsel or attorney.

The attorney-client relationship existed really between the local government unitconcerned and the lawyer appointed to the position of provincial or city attorney. It wasclear that it should be the local government unit concerned which should decidewhether or not to terminate said relationship and not the governor or mayor alone. In


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other words, governors and mayors could go but the provincial attorney and cityattorney would remain as a career officer, subject to removal only for cause as providedby law and the civil service rules.

It is unfortunate, however, that the Local Government Code of 1991 (Rep. Act No. 7160)

in Sec. 481 made the position of legal officer co-terminous with that of the appointingauthority. This, in my opinion, certainly adds to the demoralization within the ranks of career government employees since appointments to the position of legal officer cannow be based on considerations other than performance, efficiency, dedication andpublic service. The "spoils system" is now given free reign at least in the position of provincial attorney and city attorney.

Given the above provision of the Local Government Code, I am left with no choice but toconcur with the Court's decision.


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G.R. No. 104639 July 14, 1995

PROVINCE OF CAMARINES SUR through its GOVERNOR, SANGGUNIANG

PANLALAWIGAN and PROVINCIAL TREASURER, petitioner,-versus-COURT OF APPEALS and TITO B. DATO, respondent .

KAPUNAN, J.:

Petitioner Province of Camarines Sur assails the decision of the Court of Appeals which affirmedwith modification the Regional Trial Court of Camarines Sur's decision ordering it to pay privaterespondent Tito Dato backwages and attorney's fees.

The relevant antecedents are as follows:

On January 1, 1960, private respondent Tito Dato was appointed as Private Agent by the thengovernor of Camarines Sur, Apolonio Maleniza.

On October 12, 1972, he was promoted and was appointed Assistant Provincial warden by thenGovernor Felix Alfelor, Sr. Because he had no civil service eligibility for the position he wasappointed to, private respondent Tito Dato could not be legally extended a permanent appointment.Hence, what was extended to him was only a temporary appointment. Thereafter, the temporaryappointment was renewed annually.

On January 1, 1974, Governor Alfelor approved the change in Dato's employment status fromtemporary to permanent upon the latter's representation that he passed the civil service examinationfor supervising security guards. Said change of status however, was not favorably acted upon bythe Civil Service Commission (CSC) reasoning that Tito Dato did not possess the necessary civilservice eligibility for the office he was appointed to. His appointment therefore remainedtemporary.

Thereafter, no other appointment was extended to him.

On March 16, 1976, private respondent Tito Dato was indefinitely suspended by Governor Alfelor

after criminal charges were filed against him and a prison guard for allegedly conniving and/or consenting to evasion of sentence of some detention prisoners who escaped from confinement.

On March 19, 1976, or two years after the request for change of status was made, Mr. Lope B.Rama, head of the Camarines Sur Unit of the Civil Service Commission, wrote the Governor of Camarines Sur a letter informing him that the status of private respondent Tito Dato has beenchanged from temporary to permanent, the latter having passed the examination for Supervising


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Security Guard. The change of status was to be made retroactive to June 11, 1974, the date of release of said examination.

In the meantime, the Sangguniang Panlalawigan, suppressed the appropriation for the position of Assistant Provincial Warden and deleted private respondent's name from the petitioner's plantilla.

Private respondent Tito Dato was subsequently acquitted of the charges against him. Consequently,he requested the Governor for reinstatement and backwages.

When his request for reinstatement and backwages was not heeded, private respondent Tito Datofiled an action for mandamus before the Regional Trial Court of Pili, Camarines Sur, Branch 31.

On May 31, 1991, the trial court 1 rendered judgment, the decretal portion of which reads:

WHEREFORE, judgment is hereby rendered, ordering the respondents:

1) to appropriate and pay the back salaries of the petitioner Tito B. Dato equivalentto five (5) years without qualification or deduction, at the rate of P14,532.00 per annum , with all the rights and privileges that he is entitled to as a regular government employee reaching the age of 65 in the government service, as

provided by law;

2) to pay the petitioner the sum of P5,000.00 as attorney's fees; and

3) to pay the costs.

SO ORDERED. 2

In due course, petitioner Province of Camarines Sur appealed the said decision to the Court of Appeals.

On February 20, 1992, respondent Court of Appeals rendered its decision which dispositivelyreads as follows:

WHEREFORE, in view of all the foregoing, judgment appealed from is herebyAFFIRMED with the following modifications: (1) respondents are ordered to paythe backwages of petitioner Tito B. Dato during the entire period of his suspension,with all the rights and privileges that he is entitled to as a regular government

employee reaching the age of 65 in the government service, as provided by law;and (2) the award of the sum of P5,000 to petitioner as attorney's fees andrespondents to pay the costs of suit is deleted.

IT IS SO ORDERED. 3

Aggrieved by the foregoing ruling, petitioner Province of Camarines Sur interposed the present petition submitting that the respondent court erred in (a) affirming the trial court's finding that


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The HonorableThe Provincial Governor of Camarines Sur

Naga City.

S i r :

This refers to the latest approved appointment of Mr. TITO DATO as Asst.Provincial Warden, this province, at P3600, effective January 1, 1974 which wasapproved by this Office as temporary pending validation of his SupervisingSecurity Guard eligibility.

It appears, however, that the aforementioned eligibility of Mr. Dato was released on June 11, 1974 . In this connection, attention is being invited to Sec. 19, Rule IIIof the Rules on Personnel Action and Policies which provides that "Eligibilityresulting from civil service examination . . . shall be effective on the date on therelease of the results of the examination . . . ." (Emphasis supplied.) Mr. Dato's

Supervising Security Guard eligibility, therefore, takes effect June 11, 1974 , thedate the results thereof was released.

In view thereof, the aforementioned appointment of Mr. Dato is hereby approvedanew as follows: "APPROVED as temporary under Sec. 24 (c), R.A. 2260, asamended, effective January 1, 1974 up to June 10, 1974 and as permanent under Sec. 24 (b), R.A. 2260, as amended, subject to the report on his physical andmedical examination as to insurability, effective June 11, 1974 . The SupervisingSecurity Guard eligibility of Mr. Dato has been validated by the Civil ServiceCommission, Quezon City.

The records of Mr. Dato in this Office have been amended accordingly.

Verytrulyyours,

Byauthority of theCommi

ssion.(Initialed)

LOPE B. RAMAUnit Head 8

The foregoing is a clear arrogation of power properly belonging to the appointing authority. Timeand again, the Court has defined the parameters within which the power of approval of


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appointments shall be exercised by the Civil Service Commission. In Luego v. Civil ServiceCommission , 9 the Court ruled that CSC has the power to approve or disapprove an appointment set

before it. It does not have the power to make the appointment itself or to direct the appointingauthority to change the employment status of an employee. The CSC can only inquire into theeligibility of the person chosen to fill a position and if it finds the person qualified it must so attest.

If not, the appointment must be disapproved. The duty of the CSC is to attest appointments10

andafter that function is discharged, its participation in the appointment process ceases. 11 In the case at bench, CSC should have ended its participation in the appointment of private respondent onJanuary 1, 1974 when it confirmed the temporary status of the latter who lacked the proper civilservice eligibility. When it issued the foregoing communication on March 19, 1976, it stepped onthe toes of the appointing authority, thereby encroaching on the discretion vested solely upon thelatter.

Moreover, the Court is not prepared to accord said letter 12 any probative value, the same beingmerely a purported photocopy of the alleged letter, initialed and not even signed by the proper officer of the CSC.

Based on the foregoing, private respondent Tito Dato, being merely a temporary employee, is notentitled to the relief he seeks, including his claim for backwages for the entire period of hissuspension.

WHEREFORE, premises considered, the appealed decision is hereby REVERSED and the petitionfor mandamus instituted by herein private respondent Tito Dato is hereby DISMISSED.

SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason,

Puno, Vitug, Mendoza and Francisco, JJ., concur.


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G.R. No. 116183 October 6, 1995

SEC. RICARDO T. GLORIA, in his capacity as Secretary of Education, Culture & Sports

and Chairman of the Board of Trustees of the Philippine State College of Aeronautics(PSCA); JULIAN J. LOLENG, JR., in his capacity as Officer-in-Charge of PSCA; andBOARD OF TRUSTEES of PSCA, petitioners,-versus-HON. SALVADOR P. DE GUZMAN, JR., Presiding Judge of Branch 113, Regional TrialCourt of Pasay, Metro Manila; VIRGILIO R. RAMOS, LEONY P. SENDIN, ROSARIO V.CERILLO, ANDREA A. PESTANO, ARTHUR V. RODRIGUEZA, LENI V. DIMAYUGA,JAIME ABON, RIZALDO O. VALLE, JOIE ARCEO, SHIRLEY PESTANO, SERVANDOSACUEZA, JAIME C. PONEGAL, EDGARDO MERCADO, CRISTINA BULADO,BENIGNO T. AQUINO, RODEL PESTANO, JUN JAY PARMA, NILO B. ELLO, andNELSON SACUEZA, respondents.

HERMOSISIMA, JR., J.:

Intransigence of private respondents in maintaining a patently indefensible position sparked thislong drawn out controversy. Knowing fully well that, as temporary employees whose terms of office, whether by contract or by the tenor of their appointments, had expired one year after their respective temporary appointments, that is, on December 31, 1992, they insist on a perceived,albeit mistaken, right to reinstatement.

Before this Court is a Petition for Certiorari , filed by Hon. Ricardo T. Gloria, in his capacity asSecretary of Education, Culture and Sports (DECS) and as Chairman of the Board of Trustees of the Philippine State College of Aeronautics (PSCA); Col. Julian J. Loleng, Jr., in his capacity asOfficer-in-Charge of the PSCA; and the Board of Trustees of the PSCA 1, under Rule 65 of theRevised Rules of Court, with the end in view of nullifying the Decision 2 and Order 3 of respondentJudge Salvador P. de Guzman, Jr., Presiding Judge of Branch 113, Regional Trial Court of PasayCity, dated January 31, 1994 and June 29, 1994, respectively.

Questioned in effect by the petitioners is only the portion of the judgment ordering thereinstatement of private respondent Rosario V. Cerillo to the position of "Coordinator for Extension Services".

Actually, the act of effecting the termination of the appointment of Rosario V. Cerillo was perpetrated by Col. Julian J. Loleng, Jr. while it was the Hon. Isidro Cario who was the DECSSecretary. The case for reinstatement which was filed before respondent Judge Salvador P. deGuzman, Jr. of the Pasay City Regional Trial Court was instituted during the incumbency of thesucceeding DECS Secretary, the Hon. Armand Fabella. The judgment of the lower court, as amatter of fact, involved the Hon. Armand Fabella as defendant. In view of the resignation of


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Secretary Fabella, the duty and obligation to question the decision aforesaid of Judge Salvador P.de Guzman, Jr. devolved on the incumbent Secretary, the Hon. Ricardo T. Gloria.

Consequently, the dramatis personae in this case include: DECS Secretary Ricardo T. Gloria;PSCA Board of Trustees Chairman Col. Julian J. Loleng, Jr.; and the PSCA Board of Trustees

created under Republic Act No. 7605, as petitioners; and RTC Executive Judge Salvador P. de Guzman, Jr., as publicrespondent, and the named private respondents who were the petitioners in the court below.

The facts of the case are not in dispute. The question at issue is one of law: Is private respondentRosario V. Cerillo entitled to reinstatement to the position of "Coordinator for ExtensionServices"?

Private respondents were employees of the Philippine Air Force College of Aeronautics (PAFCA)which was created by virtue of Presidential Decree No. 1078 on January 26, 1977. Under the saiddecree, the Board of Trustees is vested with authority, among others, to appoint, as it did appoint,

officials and employees of the college, except the members of the Board of Trustees themselvesand the President of the college. In line with this authority, the PAFCA Board of Trustees issuedResolution No. 91-026 on April 1, 1991, which declared that "All faculty/administrativeemployees are also subject to the required civil service eligibilities", in accordance with pertinentcivil service law, rules and regulations. Thus, herein private respondents were issued onlytemporary appointments because at the time of their appointment, they lacked appropriate civilservice eligibilities or otherwise failed to meet the necessary qualification standards for their respective positions.

Private respondent Rosario V. Cerillo, specifically, was issued a one-year temporary appointmentto the position of Board Secretary II of PAFCA (now PSCA), that is, from January 1, 1992 to

December 31, 1992. This appointment went along the line enunciated by the Civil ServiceCommission in a letter, dated March 25, 1992. 4 The letter emphasized that temporaryappointments were good and renewable only up to 1992.

On March 24, 1992, private respondent Rosario V. Cerillo wasrelieved as Board Secretary of the PAFCA in accordance with Board Resolution No. 92-017 byreason of loss of confidence. Subsequently, however, she was designated as "Coordinator for Extension Services".

On June 3, 1992, Republic Act No. 7605 was enacted into law. It converted PAFCA into a statecollege to be known as the Philippine State College of Aeronautics (PSCA). The Board of Trustees

likewise was the governing body of the PSCA. The power to make appointments was retained bythe Board. Petitioner Col. Julian J. Loleng, Jr. remained as Officer-in-Charge by virtue of adesignation made anew by then DECS Secretary Isidro Cario on June 8, 1992.

Only on December 7, 1992 did Col. Loleng inform private respondents that they shall be deemedseparated from the service upon the expiration of their temporary appointments. Had privaterespondent Rosario V. Cerillo not been summarily dismissed as Board Secretary on March 24,1992, her temporary appointment as such was supposed to have lasted until December 31, 1992.


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On June 25, 1993, barely five months after the lapse of the terms of their temporary appointmentsas determined by the PSCA administration, the herein private respondents filed before theRegional Trial Court of Pasay City, presided over by respondent Judge Salvador P. de Guzman, Jr.,a "Petition for Mandamus and Reinstatement, with Back Wages and Damages", docketed as CivilCase No. 10049. The complaint in effect prayed that then DECS Secretary Armand Fabella

complete the filling up of positions for Board of Trustees and order the Board of Trustees toreinstate the respondents in the case at bench to their respective positions.

In their Answer, 5 the herein petitioners opposed the petition upon the ground that mandamus willnot lie to compel reinstatement because the reappointment prayed for is discretionary on the part of the appointing power. Besides, it was the claim of Secretary Fabella that a writ of mandamusshould be unavailing to private respondents because of their failure to exhaust administrativeremedies.

We find the petition to be impressed with merit.

I

The judgment of respondent Judge Salvador P. de Guzman, Jr. which orders the reinstatement of Ms. Rosario V. Cerillo to the position of "Coordinator for Extension Services" is patently improper

because it finds no support as to facts and the law. Respondent Cerillo, although temporarilyextended an appointment as Board Secretary II, was dismissed therefrom because of loss of confidence. This dismissal was neither contested nor appealed from by Ms. Cerillo. There is noquestion, therefore, that her dismissal as Board Secretary II could not have been the subject of the

petition for mandamus and reinstatement filed before respondent Judge. The fact is that privaterespondent's assignment as "Coordinator for Extension Services" was a mere designation. Not

being a permanent appointment, the designation to the position cannot be the subject of a case for

reinstatement.Furthermore, even granting that Ms. Cerillo could be validly reinstated as "Coordinator for Extension Services", her reinstatement thereto would not be possible because the position is not

provided for in the PSCA plantilla. The PSCA could not have made any valid appointment for thisinexistent position. This could very well be the reason why she was merely designated asCoordinator. As a mere designee, she could not have acquired any right to the position even if the

position existed.

At any rate, a mere "designation" does not confer upon the designee security of tenure in the position or office which he occupies in an acting capacity only 6.

II

Should the object of private respondent Cerillo in prosecuting the case in the court below be her reinstatement to the position of Board Secretary II, the reinstatement prayed for appears to beimpermissible. In the first place,Ms. Cerillo had already been dismissed from this position for loss of confidence. She did notcontest this dismissal possibly because the position of Board Secretary II is primarily confidential


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and the Board of Trustees, when finding her, the incumbent to the position, to be wanting infaithfulness and integrity dismissed her for that reason alone. She accepted the dismissal withoutany ripple and when designated as Coordinator for Extension Services, she indicated acceptance by

performing the acts called for by the designation.

The quarrel between the private respondents, on the one hand, and the PSCA administration, on theother, came about in this manner:

The Civil Service Commission, mandating a policy, wrote petitioner Col. Julian J. Loleng, Jr. a letter 7 mandating that temporary appointments of officers/employees of the PSCA were to last only up to December 31, 1992. For a better perspective, We quote a

pertinent portion of the letter:

xxx xxx xxx

Please note that temporary appointments last only for a maximum of one (1) year

and all personnel appointed in a temporary capacity can be replaced any time by acivil service eligible. Since you have just been recently covered by the Civil ServiceLaw and rules, this Field Office approved all your temporary appointments subjectto yearly renewal up to 1992 only. Subsequent appointments should strictlyconform with civil service policies. You may, therefore, advise all your temporary

personnel to take civil service examinations in order to be eligible for appointment.

This letter was implemented by Col. Julian J. Loleng, Jr. Objecting thereto, private respondents pointed out to the PSCA administration that, in Resolution No. 91-026, dated April 1, 1991, theBoard of Trustees declared that all faculty/administrative employees of the college, while requiredto acquire civil service eligibilities under pertinent civil service law, rules and regulations, must

exert effort to acquire civil service eligibilities within a period of three years from their temporaryappointments. This, the private respondents believe should be taken to mean that, should theyacquire civil service eligibilities within that period of three years, they cannot be terminated fromthe service.

The fact that private respondent Cerillo passed the requisite Civil Service Examination after thetermination of her temporary appointment is no reason to compel petitioners to reappoint her.Acquisition of civil service eligibility is not the sole factor for reappointment. Still to be considered

by the appointing authority are: performance, degree of education, work experience, training,seniority, and, more importantly, as in this case, whether or not the applicant enjoys the confidenceand trust of the appointing power. As We said earlier, the position of Board Secretary II, by its

nature, is primarily confidential, requiring as it does "not only confidence in the aptitude of theappointee for the duties of the office but primarily close intimacy which ensures freedom frommisgivings of betrayals of personal trust or confidential matters of state." 8 In other words, thechoice of an appointee from among those who possessed the required qualifications is a politicaland administrative decision calling for considerations of wisdom, convenience, utility and theinterests of the service which can best be made by the Head of the office concerned. 9


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It cannot be overemphasized that the PSCA Board Resolution No. 91-026 must yield to the CivilService Commission pol

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