Conclusion
In its comment to the petition, the Office of the Solicitor General (OSG) maintained that the replacement of Ong by Bessat was fair, just and in accord with the doctrine enunciated in Aklan College v. Guarino, and with Sections 13 and 14, Rule V, Civil Service Commission (CSC) Resolution 91-1631 issued on December 27, 1991. Section 13 substantially provides that only a temporary appointment can be issued to a person who does not have the appropriate civil-service eligibility. Section 14(2) defines a coterminous appointment as one coexistent with the tenure of the appointing authority or at his pleasure. The last paragraph of Section 14 states that appointments which are coterminous with the appointing authority shall not be considered as permanent.
The OSG also pointed out that the original memorandum issued by Wycoco did not remove Ong as director III but merely reminded the latter that after June 30, 2004, his appointment shall lapse into a de facto/holdover status unless he was reappointed. Ong’s colleagues applied for reappointment. Bessat was, in fact, reappointed as director II on August 13, 2004. Subsequently, on December 1, 2004, the President appointed Bessat as director III, effectively replacing Ong. Further, the OSG claimed that when Ong accepted promotional appointments in the Career Executive Service (CES) for which he did not have the required eligibility, he became a temporary employee and had impliedly abandoned his right to security of tenure.
The Supreme Court (SC) denied the petition and upheld the decision of the Court of Appeals (CA). The appointing authority, who in this case was the President, had effectively revoked Ong’s appointment with the appointment of Bessat. Ong lacked the CES eligibility required for the position of director III and his appointment was coterminous with the appointing authority. His appointment being both temporary and coterminous in nature, it can be revoked by the President even without cause and at a short notice. Thus, the SC found no error in the CA ruling that since Ong held a coterminous appointment, he was removable at the pleasure of the appointing authority. It is established that no officer or employee in the civil service shall be removed or suspended except for cause provided by law. However, this admits of exceptions for it is likewise settled that the right to security of tenure is not available to those employees whose appointments are contractual and coterminous in nature.
In the case at bar, Ong’s appointment as director III falls under the classifications provided in (a) Section 14(2) of the Omnibus Rules Implementing Book V of the Administrative Code, to wit, that which is coexistent with the tenure of the appointing authority or at his pleasure; and (b) Sections 13(b) and 14(2) of Rule V, CSC Resolution 91-1631, or that which is both a temporary and a coterminous appointment. The appointment is temporary as Ong did not have the required CES eligibility. The case of Amores v. Civil Service Commission, et al. is instructive anent the nature of temporary appointments in the CES to which the position of director III held by Ong belonged. The Court declared in Amores that “[a]n appointment is permanent where the appointee meets all the requirements for the position to which he is being appointed, including the appropriate eligibility prescribed, and it is temporary where the appointee meets all the requirements for the position except only the appropriate civil-service eligibility.” Verily, it is clear that the possession of the required CES eligibility is what makes an appointment in the career executive service a permanent one.
Indeed, the law permits, on many occasions, the appointment of non-CES eligibles to CES positions in the government in the absence of appropriate eligibles and when there is necessity in the interest of public service to fill vacancies in the government. But in all such cases, the appointment is at best merely temporary as it is said to be conditioned on the subsequent obtention of the required CES eligibility.
At this juncture, what comes unmistakably clear is the fact that because petitioner’s lacked the proper CES eligibility and, therefore, had not held the subject office in a permanent capacity, there could not have been any violation of petitioner’s supposed right to security of tenure inasmuch as he had never been in possession of the said right at least during his tenure as deputy director for Hospital Support Services. Hence, no challenge may be offered against his separation from office even if it be for no cause and at a moment’s notice.
This column should not be taken as a legal advice applicable to any case, as each case is unique and should be construed in light of the attending circumstances surrounding such particular case.
Lawyer Toni Umali is the current assistant secretary for Legal and Legislative Affairs of the Department of Education (DepEd). He is licensed to practice law not only in the Philippines, but also in the state of California and some federal courts in the US after passing the California State Bar Examinations in 2004. He has served as a legal consultant to several legislators and local chief executives. As education assistant secretary, he was instrumental in the passage of the K to 12 law and the issuance of its implementing rules and regulations. He is also the alternate spokesman of the DepEd.
1 comment
What can you say about the MC-1 issued by the PNoy Administration removing all appointees to the third level position with CES elibility but no CESO rank?
Your discussion affirms that a CES eligibility issued by the CES board is a sufficient requirement to be appointed permanently to the the third level position.