[G.R. No. 182591. January 18, 2011.

]
MODESTO AGYAO, JR., petitioner, vs. CIVIL SERVICE COMMISSION, respondent.

On July 18, 2005, Agyao was informed by PEZA Deputy Director for Finance and
Administration, Justo Porfirio LL. Yusingco, about his appointment as Division Chief III,
Permanent, effective July 16, 2005.

DECISION
MENDOZA, J p:
Assailed in this petition for review on certiorari is the September 26, 2007 Decision 1 of the
Court of Appeals (CA), in CA-G.R. SP No. 92569, which affirmed Resolution No. 05-0821
dated June 16, 2005, issued by the Civil Service Commission (CSC). The CSC Resolution, in
turn, affirmed the invalidation by the Civil Service Commission Field Office-Bangko Sentral
ng Pilipinas (CSCFO-BSP) of the appointment of petitioner Modesto Agyao, Jr. (Agyao) as
Department Manager II of the Philippine Economic Zone Authority (PEZA).
Records show that on June 16, 2004, Agyao was re-appointed as Department Manager II of
PEZA. As a matter of course, the renewal of Agyao's appointment was submitted by PEZA to
the CSC.

On August 21, 2005, Agyao filed with the CSC a Letter-Motion for Reconsideration of its July
16, 2005 Resolution. The motion, however, was denied in the cited CSC Resolution No. 051486 dated October 17, 2005. EcDATH
On appeal, the CA rendered a decision dated September 26, 2007 affirming the resolution of
the CSC. It ruled, among others, that Agyao could not qualify for the position of Department
Manager II because he was not a Career Civil Service Eligible (CESE). He could not invoke
the provisions of CSC MC No. 9, Series of 2005, issued on March 22, 2005 because the
invalidation of his temporary appointment was made earlier on July 16, 2004. Moreover, CSC
Office Memorandum No. 05, Series of 2005, issued on August 5, 2005 as a clarification on
CSC MC No. 9, Series of 2005, expressly provides that "all renewals issued on or after July
24, 2005 can no longer be renewed after they lapse."
Aggrieved, Agyao filed this petition for review before this Court raising the following:

On July 16, 2004, however, Agyao's re-appointment was invalidated by the CSCFO-BSP,
through a letter of Director Mercedes P. Tabao (Director Tabao). The letter stated that Agyao
lacked the prescribed Career Executive Service Office (CESO)/Career Service Executive
Examination (CSEE) eligibility, and there were qualified eligibles actually available for
appointment. Section 2 (b), Rule III of CSC Memorandum Circular No. 40, Series of 1998,
provides as follows:
b.Temporary issued to a person who meets the education, experience and training
requirements for the position to which he is being appointed except for the appropriate
eligibility but only in the absence of a qualified eligible actually available, as certified to by
the Civil Service Regional Director or Field Officer. . . .
On August 31, 2004, PEZA Director-General Lilia B. De Lima (Director-General De Lima)
sent a letter-appeal to the CSC seeking a reconsideration of its action on the appointment of
Agyao.
On June 16, 2005, the CSC issued Resolution No. 05-0821 2 denying Director-General De
Lima's appeal and affirming the invalidation by the CSCFO-BSP of Agyao's appointment as
Department Manager II of PEZA. The CSC referred to CSC Memorandum Circular (MC)No.
9, Series of 2005 (Limitations on Renewal of Temporary Appointments), which clearly
provides that only one renewal of a temporary third-level appointment is allowed provided
that there are no qualified applicants actually available and willing to assume the position.
Moreover, although Agyao's temporary appointment was renewed four (4) times, he failed to
acquire the appropriate third level eligibility. In addition, CSCFO-BSP Director Tabao
certified that there were qualified eligibles available for appointment to the position of
Department Manager II.

ISSUES
WHETHER OR NOT THE COURT OF APPEALS ERRED AND ABUSED ITS
DISCRETION IN UPHOLDING THE FINDINGS OF THE CIVIL SERVICE
COMMISSION DECLARING THE APPOINTMENT OF THE PETITIONER AS
DEPARTMENT MANAGER II OF THE PEZA AS INVALID.
WHETHER OR NOT THE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE
POSITION OF THE PETITIONER AS DEPARTMENT MANAGER II IS NOT COVERED
UNDER THE CAREER EXECUTIVE SERVICE CONSIDERING THE FACT THAT HE IS
NOT A PRESIDENTIAL APPOINTEE.
Agyao argues that CSC MC No. 9, Series of 2005, is applicable to him because its provisions
are favorable to him. He claims that CSC Office Memorandum No. 05, Series of 2005, which
clarified CSC MC No. 9, Series of 2005, allows one renewal of temporary third level
appointments issued before July 24, 2005 subject to existing rules and regulations regardless
of previous renewals granted before said date. Accordingly, he insists that the renewal of his
appointment was valid because it was made on June 16, 2004.
Agyao further points out that there are no qualified applicants actually available and willing to
assume his position as Director Manager II at the PEZA. Director Tabao's "qualified eligibles"
in her list are from different agencies of the government and that none of them has applied for
the position. It is the reason why the position is still vacant.

Finally, Agyao contends that the position of Department Manager II of PEZA is not among
those covered by the Career Executive Service (CES) also known as presidential appointees.
The appointment to the position is made by the PEZA Director-General. Accordingly, he does
not need to possess the required CESO/CSEE to continue acting as Department Manager II.
The CSC, on the other hand, argues that Agyao's temporary appointment on June 16, 2004
was properly invalidated because he lacked the eligibility to qualify as Department Manager
II. Although he was re-appointed several times to the position, he still failed to acquire third
level eligibility considering that he failed in the November 2004 CSEE.
Moreover, CSC MC No. 9, Series of 2005, and CSC Office Memorandum No. 05, Series of
2005, cannot apply in Agyao's favor because they were issued after the invalidation of his fifth
temporary appointment and did not provide for a retroactive application.
The CSC also regards Agyao's contention that there are no qualified applicants who are
actually willing to assume the position of Department Manager II as speculative and hearsay.
Actually, Director Tabao certified and furnished PEZA a list of qualified eligibles for possible
appointment as Department Manager II.
Finally, the CSC argues that although the position of Department Manager II does not require
a presidential appointment, it is a third level position which requires either a CESO or CSEE
eligibility. The list of third level positions in the Career Executive Service enumerated in the
Administrative Code of 1987, namely: Undersecretary, Assistant Secretary, Bureau Director,
Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of
Department Service and other officers of equivalent rank as may be identified by the Career
Executive Service Board, is not strictly limited. Citing jurisprudence, 3 the CSC avers that the
classification of a particular position in the bureaucracy is determined by the nature of the
functions of the office. The third level embraces positions of a managerial character involving
the exercise of management functions such as planning, organizing, directing, coordinating,
controlling, and overseeing the activities of an organization or of a unit thereof. It also requires
some degree of professional, technical or scientific knowledge and experience, and application
of managerial or supervisory skills necessary to carry out duties and responsibilities involving
functional guidance, leadership and supervision.

The issue is not novel. In Office of the Ombudsman v. Civil Service Commission cases, 4
Home Insurance Guarantee Corporation v. Civil Service Commission 5 and National
Transmission Corporation v. Hamoy, 6 the Court has consistently ruled that the CES covers
presidential appointees only. Corollarily, as the position of Department Manager II of the
PEZA does not require appointment by the President of the Philippines, it does not fall under
the CES.
Section 8, Chapter 2, Book V, Title 1 (Subtitle A) of Executive Order No. 292, otherwise
known as The Revised Administrative Code of 1987, classifies the positions in the Civil
Service as follows:
Section 8.Classes of positions in the Career Service. (1) Classes of positions in the career
service appointment to which requires examinations shall be grouped into three major levels
as follows:
(a)The first level shall include clerical, trades, crafts and custodial service positions which
involve non-professional or sub-professional work in a non-supervisory or supervisory
capacity requiring less than four years of collegiate studies;
(b)The second level shall include professional, technical, and scientific positions which
involve professional, technical or scientific work in a non-supervisory or supervisory capacity
requiring at least four years of college work up to Division Chief levels; and
(c)The third level shall cover positions in the Career Executive Service.
In the Home Insurance case, the Court ruled that "the position of Vice-President of HIGC does
not belong to the 3rd level of the career service. Respondent Cruz has not satisfactorily shown
that his former position as Vice-President in the HIGC belongs to the third level in the career
service as prescribed by law. His former position as Vice President is not among those
enumerated by law as falling under the third level, nor has he established that it is one of those
identified by the Career Executive Service Board as of equivalent rank to those listed by law.
Neither is it claimed that he was appointed by the President."
In the Office of the Ombudsman case, the Court wrote:

The rank of Department Manager II falls under the coverage of CES under the aforementioned
CSC issuances as the same is a third level career position above the division chief level and
performing executive or managerial functions. Pursuant to the merit-and-fitness rule in the
Constitution, the consistent policy is to the effect that non-presidential appointees to positions
with managerial and executive functions must possess third level eligibility.
In sum, the core issue to be resolved in this case is whether or not the position of Department
Manager II of PEZA requires CESO or CSEE eligibility. SCEDAI
RULING OF THE COURT

The CSC's opinion that the Director II positions in the Central Administrative Service and the
Finance and Management Service of the Office of the Ombudsman are covered by the CES is
wrong. Book V, Title I, Subtitle A, Chapter 2, Section 7 of EO 7 292, otherwise known as
"The Administrative Code of 1987," provides:
SECTION 7. Career Service. The Career Service shall be characterized by (1) entrance
based on merit and fitness to be determined as far as practicable by competitive examination,
or based on highly technical qualifications; (2) opportunity for advancement to higher career
positions; and (3) security of tenure.

The Career Service shall include:

(1)Open Career positions for appointment to which prior qualification in an appropriate
examination is required;
(2)Closed Career positions which are scientific, or highly technical in nature; these include the
faculty and academic staff of state colleges and universities, and scientific and technical
positions in scientific or research institutions which shall establish and maintain their own
merit systems;
(3)Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary,
Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director,
Chief of Department Service and other officers of equivalent rank as may be identified by the
Career Executive Service Board, all of whom are appointed by the President;
xxx xxx xxx (emphasis supplied)
Thus, the CES covers presidential appointees only. As this Court ruled in Office of the
Ombudsman v. CSC [G.R. No. 159940, 16 February 2005, 451 SCRA 570]:
From the above-quoted provision of the Administrative Code, persons occupying positions in
the CES are presidential appointees. . . . (emphasis supplied) ASCTac
Under the Constitution, the Ombudsman is the appointing authority for all officials and
employees of the Office of the Ombudsman, except the Deputy Ombudsmen. Thus, a person
occupying the position of Director II in the Central Administrative Service or Finance and
Management Service of the Office of the Ombudsman is appointed by the Ombudsman, not by
the President. As such, he is neither embraced in the CES nor does he need to possess CES
eligibility.
To classify the positions of Director II in the Central Administrative Service and the Finance
and Management Service of the Office of the Ombudsman as covered by the CES and require
appointees thereto to acquire CES or CSE eligibility before acquiring security of tenure will
lead to unconstitutional and unlawful consequences. It will result either in (1) vesting the
appointing power for said position in the President, in violation of the Constitution or (2)
including in the CES a position not held by a presidential appointee, contrary to the
Administrative Code.

positions in the Civil Service are only those belonging to the Career Executive Service, or
those appointed by the President of the Philippines. This was the same ruling handed down by
the Court in Office of the Ombudsman v. Civil Service Commission, wherein the Court
declared that the CES covers presidential appointees only.
xxx xxx xxx
Respondent was appointed Vice-President of VisMin Operations & Maintenance by Transco
President and CEO Alan Ortiz, and not by the President of the Republic. On this basis alone,
respondent cannot be considered as part of the CES.
Caringal and Erasmo cited by petitioner are not in point. There, the Court ruled that appointees
to CES positions who do not possess the required CES eligibility do not enjoy security of
tenure. More importantly, far from holding that presidential appointment is not required of a
position to be included in the CES, we learn from Caringal that the appointment by the
President completes the attainment of the CES rank, thus:
Appointment to CES Rank
Upon conferment of a CES eligibility and compliance with the other requirements prescribed
by the Board, an incumbent of a CES position may qualify for appointment to a CES rank.
Appointment to a CES rank is made by the President upon the recommendation of the Board.
This process completes the official's membership in the CES and most importantly, confers on
him security of tenure in the CES.
To classify other positions not included in the above enumeration as covered by the CES and
require appointees thereto to acquire CES or CSE eligibility before acquiring security of
tenure will lead to unconstitutional and unlawful consequences. It will result either in (1)
vesting the appointing power for non-CES positions in the President, in violation of the
Constitution; or (2) including in the CES a position not held by presidential appointee,
contrary to the Administrative Code.
Interestingly, on 9 April 2008, CSC Acting Chairman Cesar D. Buenaflor issued Office
Memorandum No. 27, s. 2008, which states in part:

The same ruling was cited in the National Transmission Corporation case, where it was further
written:

For years, the Commission has promulgated several policies and issuances identifying
positions in the Career Service above Division Chief Level performing executive and
managerial functions as belonging to the Third Level covered by the Career Executive Service
(CES) and those outside the CES, thus, requiring third level eligibility for purposes of
permanent appointment and security of tenure.

"Positions in the CES under the Administrative Code include those of Undersecretary,
Assistant Secretary, Bureau Director, Regional Director, Assistant Regional Director, Chief of
Department Service and other officers of equivalent rank as may be identified by the Career
Executive Service Board, all of whom are appointed by the President. Simply put, third-level

However, the issue as to whether a particular position belongs to the Third Level has been
settled by jurisprudence enshrined in Home Insurance and Guaranty Corporation v. Civil
Service Commission, G.R. No. 95450 dated March 19, 1993 and Office of the Ombudsman
(OMB) v. Civil Service Commission, G.R. No. 162215 dated July 30, 2007, where the

Honorable Supreme Court ruled citing the provision of Section 7(3) Chapter 2, Title I-A, Book
V of Administrative Code of 1987, that the Third Level shall cover positions in the Career
Executive Service (CES). Positions in the Career Executive Service consists of
Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional
Director, Assistant Regional Director, Chief of Department Service and other officers of
equivalent rank as may be identified by the Career Executive Service Board (CESB), all of
whom are appointed by the President. To classify other positions not included in the above
enumeration as covered by the CES and require appointees thereto to acquire CES or CSE
eligibility before acquiring security of tenure will lead to unconstitutional and unlawful
consequences. It will result either: in (1) vesting the appointing power for non-CES positions
in the President, in violation of the Constitution; or, (2) including in the CES a position not
held by presidential appointee, contrary to the Administrative Code. ISTECA
xxx xxx xxx
While the above-cited ruling of the Supreme Court refer to particular positions in the OMB
and HIGC, it is clear, however, that the intention was to make the doctrine enunciated therein
applicable to similar and comparable positions in the bureaucracy. To reiterate, the Third
Level covers only the positions in the CES as enumerated in the Administrative Code of 1987
and those identified by the CESB as of equivalent rank, all of whom are appointed by the
President of the Philippines. Consequently, the doctrine enshrined in these Supreme Court
decisions has ipso facto nullified all resolutions, qualification standards, pronouncements
and/or issuances of the Commission insofar as the requirement of third level eligibility to nonCES positions is concerned.
In view thereof, OM No. 6, series of 2008 and all other issuances of the Commission
inconsistent with the afore-stated law and jurisprudence are likewise deemed repealed,
superseded and abandoned. . . . (Emphasis supplied)
Thus, petitioner can no longer invoke Section 1(b) of Memorandum Circular (MC) No. 21, it
being inconsistent with the afore-quoted Office Memorandum and thus deemed repealed by no
less than the CSC itself.
All three cases were also cited in the recent case of Civil Service Commission v. Court of
Appeals and Philippine Charity Sweepstakes Office, 8 where a similar ruling was handed
down.
Doubtless, the position of Director Manager II at the PEZA is not among the enumerated
positions in the Career Executive Service, much less, a position that requires presidential
appointment. Even the CSC admits that the position of Director Manager II does not require
presidential appointment.
For said reason, Agyao only needs the approval of the PEZA Director-General to validate his
appointment or re-appointment. As he need not possess a CESO or CSEE eligibility, the CSC

has no valid and legal basis in invalidating his appointment or re-appointment as Department
Manager II.
WHEREFORE, the September 26, 2007 Decision of the Court of Appeals is hereby
REVERSED and SET ASIDE and another one entered holding that the appointment of
Modesto Agyao, Jr. as Department Manager II of PEZA was valid.
SO ORDERED.

[G.R. No. 110168. August 4, 1994.]

RODOLFO R. PALMERA, petitioner, vs. THE CIVIL SERVICE COMMISSION and THE
SECRETARY OF PUBLIC WORKS AND HIGHWAYS, respondents.
DECISION
CRUZ, J p:
Petitioner started working in the government in 1953 and has held various positions in the
Ministry of Public Works. On October 1, 1982, upon the merger of the Ministry of Public
Works and the Ministry of Public Highways, he was appointed Assistant Regional Director of
the National Capital Region (NCR).
On April 24, 1986, Palmera was directed by then DPWH Minister Rogaciano M. Mercado to
turn over his office to Pacifico Mendoza (who had been assigned thereat as OIC) and to report
to the MPWH Central Office for his new assignment. Cdpr
On June 26, 1987, then DPWH Secretary Vicente R. Jayme charged Palmera, along with
several others, with grave misconduct and dishonesty in two administrative cases denominated
as Adm. Case Nos. 87-28 and 87-29. Thereafter, all the respondents were placed under 90-day
preventive suspension, which was lifted on November 16, 1987.
On December 1, 1987, another Memorandum was issued by the DPWH Secretary J. Nery
Ferrer charging Palmera, together with other respondents, with grave misconduct and
dishonesty. In this Adm. Case No. 87-44, Palmera was again placed under preventive
suspension.
All of the above-mentioned administrative cases were based on the recommendation of the
DPWH Fact-Finding Committee in an investigation of anomalies in the flood control and
related projects in Metro Manila. Its findings were embodied in a number of separate
complaints and informations filed with the Office of the Tanodbayan (Ombudsman) and the
Sandiganbayan, for malversation, estafa, falsification and violations of R.A. No. 3019, and
P.D. 1759.

On May 19, 1988, Palmera's second preventive suspension was lifted but he was no longer
ordered reinstated.
The petitioner alleges that it was while he was still under preventive suspension that he
learned of Pacifico Mendoza's appointment to his position. Palmera said he was repeatedly
assured he would be appointed to another position but no such appointment was ever extended
him. llcd
Instead, the DPWH Assistant Secretary for Legal Services recommended that Palmera be
hired on a contractual basis for the period from January 1 to December 21, 1987, to provide a
legal basis for the payment of his salaries. After December 31, 1987, management would
decide whether or not to renew the contract. The petitioner signed the contract but it was never
renewed.
On November 21, 1991, Palmera filed with respondent Civil Service Commission a letterappeal for his reinstatement with full back wages and without loss of seniority rights. He also
prayed for the nullification of the appointment of Mendoza as Assistant Regional Director.

1. In ruling that petitioner's acceptance of a contractual appointment was an indication of his

relinquishment of his position as Assistant Regional Director and foreclosed his right to
contest his non-reinstatement;
2. In holding that petitioner is guilty of laches; and
3. In arbitrarily disregarding constitutional right of petitioner to security to tenure.
It is not disputed that the petitioner has the constitutional right to security to tenure. P.D. 807
specifically includes the position of Assistant Regional Director in the Career Executive
Service. The career service is characterized by (1) entrance based on merit and fitness to be
determined as far as practicable by competitive examination, or based on highly technical
qualifications; (2) opportunity for advancement to higher career positions; and (3) security of
tenure.
Security of tenure means that no officer or employee in the Civil Service shall be suspended or
dismissed except for cause as provided by law and after due process. Together with the merit
and fitness rule, it is basic feature of the civil service system. cdphil

The DPWH commented on the letter-appeal thus:

His acceptance of a contractual appointment as Technical Assistant to the Secretary on
January 2, 1987 is a indication of his relinquishment of his former position as Asst. Regional
Director. After the expiration of the Contract of Employment (contractual), no other
appointment was issued to Mr. Palmera.

The public respondent contends that by accepting the contract and assuming the temporary
position of Technical Assistant to the Secretary, the petitioner effectively relinquished his
position as Assistant Regional Director and abided by the terms of the contract, including the
limitation of its duration. When he accepted his temporary appointment, he abandoned his
right to security of tenure conformably to the rulings of this Court, as in Romualdez v. Civil
Service Commission: 1

In its Resolution No. 92-922 dated July 23, 1992, the Commission found the contract of
employment issued to Palmera to be violative of the Civil Service Law and Rules.
Nevertheless, it dismissed the appeal mainly on the ground of laches. According to the
Commission, Palmera failed to contest the issuance of the contract and his non-reinstatement
within a reasonable period, thus rendering the appeal moot and academic.

(W)hen he accepted this temporary appointment, he was thereby effectively divested of

security of tenure. A temporary appointment does not give the appointee any definite tenure of
office but makes it dependent upon the pleasure of the appointing power.

On August 28, 1992, Palmera filed a motion for reconsideration of the resolution. He also
submitted the affidavit of a certain Amado Dungca, who claimed to be an employee of then
Executive Secretary Joker P. Arroyo. Dungca declared that Secretary Arroyo had no several
occasions assured Palmera that he would make representations with DPWH officials for his
reinstatement or his appointment to a position of equivalent or higher rank.
The Commission rejected Dungca's affidavit as mere hearsay and denied the motion for lack
of merit in its Resolution No. 93-944 dated March 12, 1993. cdrep
In this petition to annul the resolution, it is alleged that the respondent Civil Service
Commission committed grave abuse of discretion:

The above-cited case is not all fours with the present case. The circumstances surrounding the
herein petitioner's acceptance of the temporary appointment are different from those in
Romualdez. In the latter case, Romualdez applied for the temporary appointment in exchange
for his permanent position and he acted on his own volition, with full knowledge of the
consequences of his act.
Palmera had no intention to abandon his permanent position and his security to tenure therein.
The petitioner had been working in the government for about 34 years. It cannot be reasonable
supposed that by signing the contract, he was knowingly relinquishing his permanent post and
all his concomitant rights, including his accrued leave benefits. Furthermore, the petitioner
was already getting on in years and could not afford to fact an uncertain future without a
regular and steady income.
The memorandum issued by the Legal Officer of the DPWH explains the rationale for the
execution of the contract of services thus: llcd

I strongly recommended that Mr. Palmera be given a contractual appointment covering the
period from January 1, 1987 to December 31, 1987, to provide legal basis for payment of
salaries for services rendered or during the period that he has been reporting for duty. After
December 31, 1987, management will decide whether or not to renew his contract. (Annex
"D" to the Petition; Rollo p. 41; emphasis supplied.)
It can be inferred from this statement that Palmera did not seek to be appointed as Technical
Assistant to the Secretary. He was not informed of the real objective of contract. He was made
to understand that the contract was merely for the sake of formality, to give some legal basis
for his compensation for 1987.
The public respondents did not categorically deny the petitioner's allegation that he returned to
work immediately after the lifting of this first preventive suspension. Such conduct was
definitely inconsistent with the imputation that he intended to surrender his permanent office.
In the old but still valid case of Santiago v. Agustin, 2 this Court said:
A public office may become vacant by abandonment. In order to constitute abandonment of
office, it must be total and under such circumstances as clearly to indicate an absolute
relinquishment. Temporary absence is not sufficient. There must be an intention, actual or
imputed to abandon the office. (Emphasis supplied)
The Commission itself has held that the contract of service entered into by the petitioner and
DPWH officials was null and void for being contrary to law and public policy.
A void or inexistent contract is one which has no force and effect from the very beginning, as
if it had never been entered into, and which cannot be validated either by time or by
ratification. Hence, the subject contract cannot be used as basis for the claim that the petitioner
abandoned his post as Assistant Regional Director. cdll
The public respondents further contend that the petitioner is guilty of laches because he sought
to implement the order dated November 16, 1987, only on November 18, 1991, or more than 4
years later. Consequently, he is deemed to have forfeited any remedy to which he may have
been entitled under the law.
The reasonableness of the period within which a claim for reinstatement may be filed is
determined on a case-by-case basis. There is no absolute rule on what constitutes laches or
staleness of demand, which is to be determined according to the particular circumstances of
each case.
In the instant case, the petitioner's inaction was due to his reliance on the assurances made to
him that he would be appointed to another position. It is not disputed that he continued
reporting for work in the Office of the Secretary even after learning that somebody else had
been appointed to replace him. Palmera could not have done so unless he was assured of his

reappointment. Such assurances were obviously made in recognition of the petitioner's right to
reinstatement upon the lifting of his preventive suspension.

These circumstances justify the application in this case of the following ruling laid down in
Cristobal v. Melchor: 3
The doctrine of laches is an equitable principle applied to promote but never to defeat justice.
Thus, where laches is invoked against a plaintiff by reason of the latter's failure to come to
court within the statutory period provided in the law, the doctrine of laches will not be taken
against him where the defendant is shown to have promised from time to time to grant the
relief sought for. Again, We, have jurisprudence that where a defendant or those claiming
under him recognized or directly or impliedly acknowledged existence of the right asserted by
a plaintiff, such recognition may be invoked as a valid excuse for a plaintiff's delay in seeking
to enforce such right. In brief, it is indeed the better rule that courts, under the principle of
equity, will not be guided or bound strictly by the statute of limitations or the doctrine of
laches when to do so, manifest wrong and injustice would result. (Emphasis supplied)
In that case, the petitioner took nine years before filing suit for his reinstatement, also because
of repeated assurances of his appointment, which never materialized. LLphil
It should also be noted that laches is not concerned merely with lapse of time, unlike
prescription. While the latter deals with the fact of delay, laches deals with the effect of
unreasonable delay. To constitute laches, it is required that (1) the complainant must have
knowledge of the conduct of the defendant or of one under whom he claims, and (2) he must
have been afforded an opportunity to institute suit. The first requirement is lacking in this
case. There was no formal communication to the petitioner that he had already been dismissed
from the service. The contract cannot be considered a notice of dismissal because it was null
and void and therefore produced no legal effect.
Section 24 (d) of P.D. 807 provides:
Any person who has been permanently appointed to a position in the career service and who
has, through no delinquency or misconduct, been separated therefrom may be reinstated to a
position in the same level for which he is qualified.
It follows that the petitioner should be immediately reinstated to his former position or
appointed to another position of equivalent rank and compensation. However, in view of his
pending cases before the Ombudsman and the Sandiganbayan, back salaries may not be paid
to him at this time and until he is absolved of all the administrative and criminal charges
against him.
WHEREFORE, judgment is hereby rendered declaring the petitioner's dismissal from the
service to be illegal and ordering his immediate reinstatement to his former position or his

appointment to another position of equivalent rank, with payment of back wages only if and
when he is exonerated of the administrative and criminal charges filed against him. No costs.
LexLib

common issue is whether or not their service as Philippine diplomats was under the
circumstances, at the pleasure of the president, terminable without cause or need of
investigation.

SO ORDERED.

G.R. Nos. 88183 and 88781: Isabelo Astraquillo

Astraquillo was appointed by the President of the Philippines on July 22, 1986 as Ambassador
Extraordinary and Plenipotentiary and Chief of Mission (II) to the United Arab Emirates
(UAE). 1 After he had occupied the post for two years or so, a confidential memorandum was
filed with the Home Office by Atty. Roy Seneres, the Philippine Labor Attache to the United
Arab Emirates, accusing Astraquillo, his wife and cousin-in-law of improper interference with
his (Seneres') functions. 6

[G.R. No. 88183. October 3, 1990.]

ISABELO J. ASTRAQUILLO, petitioner, vs. RAUL MANGLAPUS, THE BOARD OF
FOREIGN SERVICE ADMINISTRATION (Manuel T. Yan, Jose D. Ingles, ** Rosalinda V.
Tirona, Ernesto Garrido, Felipe Mabilangan, Jorge Coquia, Edgardo Kalaw, Federico
Macaranas, Purificacion Quisumbing, *** Israel Bocobo, Faustino David, members), and
DONATO FELICIO, respondents.
[G.R. No. 88467. October 3, 1990.]
ALUNAN C. GLANG, petitioner, vs. RAUL S. MANGLAPUS, Secretary of Foreign Affairs,
respondent.
[G.R. No. 88672. October 3, 1990.]
ALEJANDRO MELCHOR, JR., petitioner, vs. RAUL S. MANGLAPUS, Secretary of
Foreign Affairs; Undersecretary of Foreign Affairs and Chairman of the Board of Foreign
Service Administration MANUEL T. YAN; FELIPE MABILANGAN, Coordinator of the
BFSA; ROSALINDA V. TIRONA, Director General of the Office of Personnel
Administration; ERNESTO GARRIDO, Director General of Financial Management Services;
JORGE COQUIA, Legal Adviser; all members of BFSA; and CATALINO MACARAIG, JR.,
Executive Secretary, respondents.
[G.R. No. 88781. October 3, 1990.]
ISABELO J. ASTRAQUILLO, petitioner, vs. FORTUNATO D. OBLENA, respondent.
[G.R. No. 88916. October 3, 1990.]
ALEJANDRO MELCHOR, JR., petitioner, vs. JUAN SAEZ, respondent.
DECISION
NARVASA, J p:
As the caption indicates, this decision deals with five cases. The cases have been consolidated
and jointly considered because they all turn upon a common legal issue, i.e., the validity of the
termination, by authority of the President of the Philippines, of the petitioners' appointments as
"political" or "non-career" members of the country's Foreign Service. Stated otherwise, the

Astraquillo sought and obtained from the Secretary of Foreign Affairs an extension of his
services up to May 31, 1989. 7 But on the same day that the telex message extending his
services was transmitted, May 12, 1989, Astraquillo filed the petition for certiorari at bar,
challenging his removal from his post and the designation of Felicio as Charges D'Affaires.
This was docketed as G.R. No. 88183. After Ambassador Fortunato D. Oblena was appointed
to replace him as the country's Ambassador Extraordinary and Plenipotentiary to the UAE,
Astraquillo filed with this Court a petition for quo warranto contesting the appointment. This
second case was docketed as G.R. No. 88781.
His basic thesis is that the Foreign Affairs Secretary had no power qua department head, and
without prior authorization of the President, to terminate his services, he being a presidential
appointee; and under the Foreign Service Code of 1983, his removal could be predicated only
upon good cause duly established at a hearing of which he was entitled to notice and an
opportunity to defend. Corollarily, the designation of a replacement for him, either in a
temporary or permanent capacity, was also null and void.
G.R. No. 88467: Alunan C . Glang
Alunan Glang was appointed by President Aquino on September 11, 1986 as Ambassador
Extraordinary and Plenipotentiary and Chief of Mission (Class I) to Kuwait, 8 and assumed
his post on January 11, 1987. 9
Two years afterwards, or on May 27, 1989, he received a telex message from the Secretary of
Foreign Affairs informing him that his services as ambassador and chief of mission to Kuwait
had been terminated and directing him to vacate his post "on or before June 30, 1989." 10 The
message further advised that the termination of his services was "explicit in a Memorandum
dated 18 May 1989" a copy of which would be furnished him by telefax. The memorandum
referred to was one signed by Secretary Raul Manglapus recommending the "recall and
subsequent termination of the services of Ambassador Alunan C. Glang as Ambassador to the
State of Kuwait . .," which was approved by Executive Secretary Catalino Macaraig, Jr. "BY
AUTHORITY OF THE PRESIDENT." 11
On May 30, 1989 Glang sent communications separately addressed to the Office of the
President and the Secretary of Foreign Affairs stating that he considered his separation from

the service as "illegal and violative of R.A. No. 704, known as the Foreign Service Act of
1952," as amended, he being entitled to security of tenure and removable only for cause and
not at the pleasure of the President. 12 The Foreign Secretary's reply (sent by telex on June 2,
1989) was prompt and simple: the notice of termination of Glang's services "dated 26 May
1989, stands;" he should "accept the President's decision" and seek redress "only through the
proper courts of law" if he felt he had been "unlawfully treated." 13
Glang thereupon filed the petition for certiorari and prohibition at bar. For relief, he relies
upon substantially the same arguments as those advanced by Astraquillo, supra. 14
G.R. Nos. 88672 and 88916: Alejandro Melchor, Jr.
Alejandro Melchor, Jr. was also appointed by President Aquino Ambassador Extraordinary
and Plenipotentiary on June 27, 1986. 15 On July 3, 1986, Vice-President Salvador H. Laurel,
then Foreign Affairs Minister, assigned him to Moscow, U.S.S.R. 17 after which he received
another appointment from the President on October 15, 1986 as Chief of Mission, Class, 1. 18
On July 25, 1988, seven (7) officers and employees of the Philippine Embassy in Moscow 19
filed a complaint with the Department of Foreign Affairs against Melchor and two others 25
1) establishment of a private restaurant on the third floor of the Philippine Embassy Building
without prior notice and approval of the Home Office;
2) Issuance of visas to persons not qualified to travel to the Philippines;
3) appointment and accreditation of Hernani Jover and Donato de Guzman as Counsellors
contrary to existing laws; and
4) leaving his post without permission from the Home Office from October to December 1987
and January 22-26, 1988.

illegal action of Sec. Manglapus and the Board and return . . (him to his) post in Moscow
without the stigma of a reprimand . .." 32
It appears that the BFSA re-examined the evidence against Melchor and came to the
conclusion that all charges against him should be dropped as there was "no basis" therefor and
consequently, his appeal had been rendered moot and academic. 33 This was communicated to
the Foreign Affairs Secretary on June 9, 1989 and thence to the Office of the President, with
the observation that Melchor's appeal had indeed become moot and academic. On the basis
thereof, Executive Secretary Macaraig "terminated" the administrative case against Melchor,
by Order dated June 9, 1989. 3 4

It appears, however, that about a week earlier, or on May 29, 1989, the Secretary of Foreign
Affairs had submitted a Memorandum to the President recommending the termination of the
services of Melchor described as "a political (non-career) Ambassador" as Chief of
Mission and as Ambassador" to the U.S.S.R, and that he "should vacate his post by 30 June
1989." 35 This was "APPROVED by authority of the President" on June 13, 1989 by
Executive Secretary Macaraig. 36
On June 28, 1989 Melchor presented the petition at bar, grounded mainly on the proposition
that the termination of his services by Foreign Affairs Secretary Manglapus after he had been
absolved of the charges against him, was unwarranted and illegal, and that the authority to so
terminate his services was "vested exclusively on the President herself . . ."
Subsequently, Melchor filed a second petition, docketed as G.R. No. 88916, seeking
invalidation of the reassignment or transfer of Ambassador Juan V. Saez from Amman, Jordan
to the Philippine Embassy at Moscow. 37
Against this factual background, the petitioners submit the following common contentions: 38

By letter dated January 10, 1989, Melchor told the Foreign Affairs Secretary there was "no
basis for me to reply under oath" (to the charges as required) as "said complaint has not been
subscribed and sworn to according to the provisions of P.D. 807," drawing attention, however,
to his reply "to the complaint on 22 September 1988 Dispatch No. AM-193-88, Subject:
Comments to complaint." 26 He also wrote to President Aquino on the same date regarding
the "unfounded charges" against him and requesting that the matter be resolved before his
return to his post. 30
The affair was, however, far from ended. On February 10, 1989, Melchor advised the
Secretary in writing that he would indeed return to Moscow but protested the reprimand
administered to him and his announced transfer to another post after the state visit, claiming
that as a "presidential appointee," he was beyond the disciplinary authority of the BFSA, and
that, furthermore, he had been denied due process. 31 On the same day he directed an
"APPEAL" to the President praying that she "nullify, after review by an impartial body . . the

1) that the removals from the service were not made by the President personally and directly;
2) that the removals did not state a cause explicitly prescribed by the Foreign Service Act or
the Civil Service Law;
3) that the removals were affected without due process;
4) the petitioners were appointed right after the so-called "EDSA Revolution," and when VicePresident Laurel was Minister of Foreign Affairs; and
5) all were appointed Chief of Mission Class I (except Astraquillo, who was named Class II
Chief) and came into Foreign Service "through lateral entry."

The Civil Service Law,Presidential Decree No. 807, classifies employment in Government
into "career" and "non-career service." It identifies the peculiar characteristics of each
category, and enumerates the positions falling under each class.

"(2) tenure which is limited to a period specified by law, or which is coterminous with that of
the appointing authority or subject to his pleasures, or which is limited to the duration of a
particular project for which purposes employment was made."

Thus, Section 5 of said PD No. 807 states that the "career service" is characterized by:
"(1) entrance based on merit and fitness, to be determined as far as practicable by competitive
examinations, or based on highly technical qualifications;
(2) opportunity for advancement to higher career positions; and
(3) security of tenure."
Section 5 then enumerates the particular positions falling under the Career Service, including,
as will be noted, those in the Foreign Service. They are the following: 39
"(1) Open Career positions for appointment to which prior qualifications in an appropriate
examination is required;
(2) Closed Career positions which are scientific or highly technical in nature; these includes
the faculty and academic staff of state colleges and universities and scientific and technical
positions in scientific or research institutions which shall establish and maintain their own
merit systems;
(3) Positions in the Career Executive Service, namely: Undersecretary, Assistant Secretary,
Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director,
Chief of Department Service and other officers of equivalent rank as may be identified by the
Career Executive Service Board, all of whom are appointed by the President;
(4) Career officers, other than those in the Career Executive Service, who are appointed by the
President, such as the Foreign Service Officers in the Ministry of Foreign Affairs;
(5) Commissioned officers and enlisted men of the Armed Forces which shall maintain a
separate merit system;
6) Personnel of government-owned or controlled corporations, whether performing
governmental or proprietary functions, who do not fall under the non-career service; and
[(7)] Permanent laborers, whether skilled, semi-skilled, or unskilled."
The "Non-Career Service," on the other hand, according to Section 6 of the same PD 807,
shall be characterized by: 40
"(1) entrance on bases other than those of the usual test of merit and fitness utilized for the
career service; and

And the officials and employees listed under the Non-Career Service include:
"(1) Elective officials and their personal or confidential staff;
(2) Department Heads and other officials of Cabinet rank who hold positions at the pleasure of
the President and their personal or confidential staff(s);
(3) Chairman and members of commissions and boards with fixed terms of office and their
personal or confidential staff;
(4) Contractual personnel or those whose employment in the government is in accordance with
a special contract to undertake a specific work or job, requiring special or technical skills not
available in the employing agency, to be accomplished within a specific period, which in no
case shall exceed one year, and performs or accomplishes the specific work or job, under his
own responsibility with a minimum of directions and supervision from the hiring agency; and
(5) Emergency and seasonal personnel."
By these statutory standards, it seems plain that all three (3) petitioners: Isabelo J. Astraquillo,
Alunan C. Glang, and Alejandro Melchor, Jr., pertained to the Non-Career Service. Their
appointments to the Foreign Service were made on "bases other than those of the usual test of
merit and fitness utilized for the career service;" their entrance was not "based on merit and
fitness . . . determined . . . by competitive examinations, or based on highly technical
qualifications." This being so, their "tenure . . . (was) coterminous with that of the appointing
authority or subject to his pleasures, . . ."
It is worthy of note that among the officers categorized in the Career Service by the Civil
Service Law,PD No. 807, are "Career officers, other than those in the Career Executive
Service, who are appointed by the President, such as the Foreign Service Officers in the
Ministry of Foreign Affairs." Implicit in this reference to "career officers" in the Ministry
(now Department) of Foreign Affairs is the acknowledgement of non-career officers in that
ministry (department).
The same distinction between career and non-career officers may be derived by implication
from the provisions of the Foreign Service Act of 1952, R.A. No. 708, as amended.
Part B, Title III of said Foreign Service Act deals with the "Career Service Corps . . composed
of Foreign Service Officers appointed by the President upon the recommendation of the
Secretary," and declares that "(n)o person shall be eligible for appointment (in such corps)
unless he has passed such competitive examinations as the Board of Foreign Service
examination may prescribe to determine his fitness and aptitude for the work of the service

and has demonstrated his loyalty to the Government of the Republic of the Philippines and his
attachment to the principles of the Constitution." 41 Those who thus qualify are "certified by
the Secretary of Foreign Affairs as eligible for appointment as Foreign Service Officer(s),"
and it is exclusively from these officers so certified that the President "shall appoint Foreign
Service Officers . . ." 42
Now, there are those, like the petitioners, who are appointed to the Foreign Service, without
having qualified in the manner just indicated and consequently without having been certified
by the Foreign Affairs Secretary as eligible for appointment as Foreign Service Officers. 43 In
view of the provisions of law just cited, they certainly do not and cannot be deemed embraced
in the Career Service Corps. They can only be regarded then as "non-career officers" or
"political appointees" who, as already pointed out, have a "tenure . . . coterminous with that of
the appointing authority or subject to his pleasures, . . ."
Melchor discusses at length what he feels to be the distinction between an ambassador and a
chief of mission, and argues that whatever might be said about his serving at the pleasure of
the President as ambassador, his appointment as chief of mission had undoubtedly given him
security of tenure as regards this latter position. He opines that the term, "chief of mission,"
has two meanings in the Foreign Service Act. LLjur
He states that Section 3 (i), Title I of the Act defines the term as "a principal officer appointed
by the President of the Philippines, with the consent of the Commission on Appointments, to
be in charge of the embassy and legation and other diplomatic mission of the Philippines or
any other person assigned under the terms of this act to be minister resident, charge d'affaires,
commissioner or diplomatic agent." 44 On the other hand, he says that in other parts of the law
("Title II, Part B, Section I, Part C, Section 1, and Title I, Part B, Section 1") "the use of the
term Chief of Mission is in a different context for it refers to the rank and class of the Foreign
Service Officer in the enumeration of categories of officers and employees of the foreign
service as well as the salary scale. 45
The discussion fails to demonstrate that, with regard to the petitioners, a chief of mission is
indeed significantly different from an ambassador. Petitioners Astraquillo, Glang and Melchor
were appointed as ambassadors, respectively, in the United Arab Emirates (UAE), Kuwait,
and Moscow. Their appointments as chief of missions in their respective posts simply meant
that, as ambassadors extraordinary and plenipotentiary, they were being placed in charge of
the embassy or legation therein. Indeed, it seems evident that even without being named chief
of mission, the fact that they were the highest ranking official in their respective embassies
would operate to place them in charge thereof as a matter of course.
Obviously, however, this aspect of their appointments has no effect on the essential character
of their positions as pertaining to the non-career service. Consequently the termination of their
connection with the Foreign Service was not dependent on proof of some legally recognized
cause therefor, after due notice and hearing as in the case of career officers and employees
but lay entirely within the will of the President, in the exercise of her discretion, and her
determination of the wisdom, necessity or convenience of such a step in the national interest,

actually a political decision. In making this determination, the President may take account of
the recommendation of the Secretary of Foreign Affairs who, as the President's alter ego,
heads and controls the Department of Foreign Affairs and supervises and directs all officials
and employees assigned abroad. 46

The petitioners' other argument that their separation from the service is illegal because not
effected by the President of the Philippines who alone has the power to do so, is specious. The
fact is that it was in truth the President who ordered their removal. The record shows that the
President approved the recommendation of the Secretary of Foreign Affairs for the termination
of their services. This is shown by the pertinent documents in which the Executive Secretary
officially certified that the recommendation for their separation from the service had been
"APPROVED by Authority of the President."
Finally, since none of the petitioners has shown any right to be returned to the office from
which they had been separated by authority of the President, none of them is entitled to the
writ of quo warranto to oust the officials who have since replaced them in their respective
posts.
WHEREFORE, the petitions in the cases embraced in this opinion, i.e., G.R. Nos. 88183,
88781, 88467, 88672, 888916, are all DENIED, with costs against petitioners.

[G.R. No. 123708. June 19, 1997.]

CIVIL SERVICE COMMISSION and PHILIPPINE AMUSEMENT AND GAMING
CORPORATION, petitioners, vs. RAFAEL M. SALAS, respondent.
The Solicitor General for petitioners.
Office of the Legal Aid for respondent.
SYLLABUS
1. ADMINISTRATIVE LAW; P.D. 1869 CREATING THE PHILIPPINE AMUSEMENT
AND GAMING CORPORATION; POSITIONS THEREIN EXEMPT FROM THE
PROVISION OF CIVIL SERVICE LAW; SEC. 16 OF P.D. 1869 GRANTING EXEMPTION
REPEALED BY THE 1987 CONSTITUTION AND EXECUTIVE ORDER NO. 292
(ADMINISTRATIVE CODE OF 1987). Section 2, Rule XX of the Revised Civil Service
Rules, promulgated pursuant to the provisions of Section 16 (e) of Republic Act No. 2260
(Civil Service Act 1959), which was then in force when Presidential Decree No. 1869 creating
the Philippine Amusement and Gaming Corporation was passed, provided that "upon
recommendation of the Commissioner, the President may declare a position as policydetermining, primarily confidential or highly technical in nature." Section 16 of PD 1869

insofar as it exempts PAGCOR positions from the provisions of Civil Service Law and Rules
has been amended, modified or deemed repealed by the 1987 Constitution and Executive
Order No. 292 (Administrative Code of 1987).
2. POLITICAL LAW; PUBLIC OFFICE; APPOINTMENT; WHEN IS A POSITION
CONSIDERED PRIMARILY CONFIDENTIAL. Prior to the passage of the Civil Service
Act of 1959, there were two recognized instances when a position may be considered
primarily confidential. Firstly, when the President, upon recommendation of the
Commissioner of Civil Service, has declared the position to be primarily confidential; and,
secondly, in the absence of such declaration when by the nature of the functions of the office
there exists "close intimacy" between the appointee and appointing power which insures
freedom of intercourse without embarrassment or freedom from misgivings of betrayals of
personal trust or confidential matters of state. IDCHTE
3. ID.; ID.; ID.; NATURE OF POSITION DETERMINES WHETHER A POSITION IS
PRIMARILY CONFIDENTIAL, POLICY-DETERMINING OR HIGHLY TECHNICAL.
Hence the dictum that, at least since the enactment of the Civil Service Act of 1959, it is the
nature of the position which finally determines whether a position is primarily confidential,
policy-determining or highly technical. (Piero et. al. v. Hechanova, et. al., L-22562, October
22, 1966). The doctrinal ruling enunciated in Pinero finds support in the 1935 Constitution and
was reaffirmed in the 1973 Constitution, as well as in the implementing rules of Presidential
Decree No. 807, or the Civil Service Decree of the Philippines. It may well be observed that
both the 1935 and 1973 Constitutions contain the provision, in Section 2, Article XII-B
thereof, that "appointments in the Civil Service, except as to those which are policydetermining, primarily confidential, or highly technical in nature, shall be made only
according to merit and fitness, to be determined as far as practicable by competitive
examination." Corollarily, Section 5 of Republic Act No. 2260 states that "the noncompetitive or unclassified service shall be composed of positions expressly declared by law
to be in the non-competitive or unclassified service or those which are policy-determining,
primarily confidential, or highly technical in nature." Likewise, Section 1 of the General Rules
in the implementing rules of Presidential Decree No. 807 states that "appointments in the Civil
Service, except as to those which are policy-determining, primarily confidential, or highly
technical in nature, shall be made only according to merit and fitness to be determined as far
as practicable by competitive examination." Let it here be emphasized, as we have accordingly
italicized them, that these fundamental laws and legislative or executive enactments all
utilized the phrase "in nature" to describe the character of the positions being classified.
4. ID.; ID.; ID.; ID.; EXECUTIVE PRONOUNCEMENT, NOT CONCLUSIVE. The
Court in the aforecited case explicitly decreed that executive pronouncements, such as
Presidential Decree No. 1869, can be no more than initial determinations that are not
conclusive in case of conflict. It must be so, or else it would then lie within the discretion of
the Chief Executive to deny to any officer, by executive fiat, the protection of Section 4,
Article XII (now Section 2[3], Article IX-B) of the Constitution. In other words, Section 16 of
Presidential Decree No. 1869 cannot be given a literally stringent application without
compromising the constitutionally protected right of an employee to security of tenure.

5. ADMINISTRATIVE LAW; ADMINISTRATIVE CODE OF 1987; APPOINTMENT;

NATURE OF POSITION DETERMINES WHETHER A POSITION IS PRIMARILY
CONFIDENTIAL, POLICY DETERMINING OR HIGHLY TECHNICAL. The question
that may now be asked is whether the Piero doctrine to the effect that notwithstanding any
statutory classification to the contrary, it is still the nature of the position, as may be
ascertained by the court in case of conflict, which finally determines whether a position is
primarily confidential, policy-determining or highly technical is still controlling with the
advent of the 1987 Constitution and the Administrative Code of 1987, Book V of which deals
specifically with the Civil Service Commission, considering that from these later enactments,
in defining positions which are policy-determining, primarily confidential or highly technical,
the phrase "in nature" was deleted. We rule in the affirmative. The matter was clarified and
extensively discussed during the deliberations in the plenary session of the 1986 Constitutional
Commission on the Civil Service provisions. It is clearly deducible, if not altogether apparent,
that the primary purpose of the framers of the 1987 Constitution in providing for the
declaration of a position as policy-determining primarily confidential or highly technical is to
exempt these categories from competitive examination as a means for determining merit and
fitness. It must be stressed further that these positions are covered by security of tenure,
although they are considered non-competitive only in the sense that appointees thereto do not
have to undergo competitive examinations for purposes of determining merit and fitness In
fact, the CSC itself ascribes to this view as may be gleaned from its questioned resolution
wherein it stated that "the declaration of a position as primarily confidential if at all merely
exempts the position from the civil service eligibility requirement." Accordingly, the Piero
doctrine continues to be applicable up to the present and is hereby maintained. Such being the
case, the submission that PAGCOR employees have been declared confidential appointees by
operation of law under the bare authority of CSC Resolution No. 91-830 must be rejected.
ATEHDc
6. ID.; ID.; ID.; CONFIDENTIAL EMPLOYEE; CLOSE INTIMACY, PREDOMINANT
REASON IN EXTENDING APPOINTMENT. The occupant of a particular position could
be considered a confidential employee if the predominant reason why he was chosen by the
appointing authority was to repeat, the latter's belief that he can share a close intimate
relationship with the occupant which ensures freedom of discussion, without fear of
embarrassment or misgivings of possible betrayal of personal trust or confidential matters of
state. Withal, where the position occupied is remote from that of the appointing authority, the
element of trust between them is no longer predominant.
7. ID.; ID.; ID.; AN INTERNAL SECURITY STAFF MEMBER OF PAGCOR IS NOT A
CONFIDENTIAL EMPLOYEE. Taking into consideration the nature of his functions, his
organizational ranking and his compensation level, it is obviously beyond debate that private
respondent cannot be considered a confidential employee. As set out in the job description of
his position (an Internal Secretary Staff member) one is struck by the ordinary, routinary and
quotidian character; of his duties and functions. Moreover, the modest rank and fungible
nature of the position occupied by private respondent is underscored by the fact that the salary
attached to it is a meager P2,200.00 a month. There thus appears nothing to suggest that

private respondent's position was "highly" or, much less, "primarily" confidential in nature.
The fact that, sometimes, private respondent may handle ordinarily "confidential matters" or
papers which are somewhat confidential in nature does not suffice to characterize his position
as primarily confidential.
8. REMEDIAL LAW; SUPREME COURT; NOT PRECLUDED FROM LATER PASSING
UPON THE CONSTITUTIONALITY OF A LAW. Even the fact that a statute has been
accepted as valid in cases where its validity was not challenged does not preclude the court
from later passing upon its constitutionality in an appropriate cause where that question is
squarely and properly raised. Such circumstances merely reinforce the presumption of
constitutionality of the law. caADIC

was referred to the Court of Appeals pursuant to Revised Administrative Circular No. 1-95
which took effect on June 1, 1995.
On September 14, 1995, the Court of Appeals rendered its questioned decision with the
finding that herein respondent Salas is not a confidential employee, hence he may not
dismissed on the ground of loss of confidence. In so ruling, the appellate court applied the
"proximity rule" enunciated in the case of Grio, et al. vs. Civil Service Commission, et al. 4 It
likewise held that Section 16 of Presidential Decree No. 1869 has been superseded and
repealed by Section 2(1), Article IX-B of the 1987 Constitution.
Hence this appeal, which is premised on and calls for the resolution of the sole determinative
issue of whether or not respondent Salas is a confidential employee.

DECISION
REGALADO, J p:

Petitioners aver that respondent Salas, as a member of the Internal Security Staff of PAGCOR,
is a confidential employee for several reasons, viz.:

The present petition for review on certiorari seeks to nullify the decision of the Court of
Appeals, dated September 14, 1995, in CA-G.R. SP No. 38319 which set aside Resolution No.
92-1283 of the Civil Service Commission (CSC) and ordered the reinstatement of herein
private respondent Rafael M. Salas with full back wages for having been illegally dismissed
by the Philippine Amusement and Gaming Corporation (PAGCOR), but without prejudice
with the filing of administrative charges against him if warranted. 1

(1) Presidential Decree No. 1869 which created the Philippine Amusement and Gaming
Corporation expressly provides under Section 16 thereof that all employees of the casinos and
related services shall be classified as confidential appointees;

The records disclose that on October 7, 1989, respondent Salas was appointed by the
PAGCOR Chairman as Internal Security Staff (ISS) member and assigned to the casino at the
Manila Pavilion Hotel. However, his employment was terminated by the Board of Directors of
PAGCOR on December 3, 1991, allegedly for loss of confidence, after a covert investigation
conducted by the Intelligence Division of PAGCOR. The summary of intelligence information
claimed that respondent was allegedly engaged in proxy betting as detailed in the affidavits
purportedly executed by two customers of PAGCOR who claimed that they were used as
gunners on different occasions by respondent. The two polygraph tests taken by the latter also
yielded corroborative and unfavorable results.

(3) CSC Resolution No. 91-830, dated July 11, 1991, has declared employees in casinos and
related services as confidential appointees by operation of law; and

On December 23, 1991, respondent Salas submitted a letter of appeal to the Chairman and the
Board of Directors of PAGCOR, requesting reinvestigation of the case since he was not given
an opportunity to be heard, but the same was denied. On February 17, 1992, he appealed to the
Merit Systems Protection Board (MSPB) which denied the appeal on the ground that, as a
confidential employee, respondent was not dismissed from the service but his term of office
merely expired. On appeal, the CSC issued Resolution No. 92-1283 which affirmed the
decision of the MSPB. 2

On the other hand, respondent Salas argues that it is the actual nature of an employee's
functions, and not his designation or title, which determines whether or not a position is
primarily confidential, and that while Presidential Decree No. 1869 may have declared all
PAGCOR employees to be confidential appointees, such executive pronouncement may be
considered as a mere initial determination of the classification of positions which is not
conclusive in case of conflict, in light of the ruling enunciated in Tria vs. Sto. Tomas, et al. 6

Respondent Salas initially went to this Court on a petition for certiorari assailing the propriety
of the questioned CSC resolution. However, in a resolution dated August 15, 1995, 3 the case

(2) In the case of the Philippine Amusement and Gaming Corporation vs. Court of Appeals, et
al., 5 The Supreme Court has classified PAGCOR employees as confidential appointees;

(4) Based on his functions as a member of the ISS, private respondent occupies a confidential
position.
Hence, according to petitioners, respondent Salas was not dismissed from the service but,
instead, his term of office had expired. They additionally contend that the Court of Appeals
erred in applying the "proximity rule" because even if Salas occupied one of the lowest rungs
in the organizational ladder of PAGCOR, he performed the functions of one of the most
sensitive positions in the corporation.

We find no merit in the petition and consequently hold that the same should be, as it is hereby,
denied.

Section 2, Rule XX of the Revised Civil Service Rules, promulgated pursuant to the
provisions of Section 16(e) of Republic Act No. 2260 (Civil Service Act of 1959), which was
then in force when Presidential Decree No. 1869 creating the Philippine Amusement and
Gaming Corporation was passed, provided that "upon recommendation of the Commissioner,
the President may declare a position as policy-determining, primarily confidential, or highly
technical in nature." It appears that Section 16 of Presidential Decree No. 1869 was predicated
thereon, with the text thereof providing as follows:
"All positions in the corporation, whether technical, administrative, professional or managerial
are exempt from the provisions of the Civil Service Law,rules and regulations, and shall be
governed only by the personnel management policies set by the Board of Directors. All
employees of the casinos and related services shall be classified as 'confidential' appointees."
On the strength of this statutory declaration, petitioner PAGCOR terminated the services of
respondent Salas for lack of confidence after it supposedly found that the latter was engaged in
proxy betting. In upholding the dismissal of respondent Salas, the CSC ruled that he is
considered a confidential employee by operation of law, hence there is no act of dismissal to
speak of but a mere expiration of a confidential employee's term of office, such that a
complaint for illegal dismissal will not prosper in this case for lack of legal basis.
In reversing the decision of the CSC, the Court of Appeals opined that the provisions of
Section 16 of Presidential Decree No. 1869 may no longer be applied in the case at bar
because the same is deemed to have been repealed in its entirety by Section 2(1), Article IX-B
of the 1987 Constitution. 7 This is not completely correct. On this point, we approve the more
logical interpretation advanced by the CSC to the effect that "Section 16 of PD 1869 insofar as
it exempts PAGCOR positions from the provisions of Civil Service Law and Rules has been
amended, modified or deemed repealed by the 1987 Constitution and Executive Order No. 292
(Administrative Code of 1987)." cda
However, the same cannot be said with respect to the last portion of Section 16 which
provides that "all employees of the casino and related services shall be classified as
'confidential appointees.'" While such executive declaration emanated merely from the
provisions of Section 2, Rule XX of the implementing rules of the Civil Service Act of 1959,
the power to declare a position as policy-determining, primarily confidential or highly
technical as defined therein has subsequently been codified and incorporated in Section 12(9),
Book V of Executive Order No. 292 or the Administrative Code of 1987. 8 This later
enactment only serves to bolster the validity of the categorization made under Section 16 of
Presidential Decree No. 1869. Be that as it may, such classification is not absolute and allencompassing.
Prior to the passage of the aforestated Civil Service Act of 1959, there were two recognized
instances when a position may be considered primarily confidential: Firstly, when the
President, upon recommendation of the Commissioner of Civil Service, has declared the
position to be primarily confidential; and, secondly in the absence of such declaration, when
by the nature of the functions of the office there exists "close intimacy" between the appointee

and appointing power which insures freedom of intercourse without embarrassment or

freedom from misgivings of betrayals of personal trust or confidential matters of state. 9
At first glance, it would seem that the instant case falls under the first category by virtue of the
express mandate under Section 16 of Presidential Decree No. 1869. An in depth analysis,
however, of the second category evinces otherwise.
When Republic Act No. 2260 was enacted on June 19, 1959, Section 5 thereof provided that
"the non-competitive or unclassified service shall be composed of positions expressly declared
by law to be in the non-competitive or unclassified service or those which are policydetermining, primarily confidential, or highly technical in nature." In the case of Piero, et al.
vs. Hechanova, et al., 10 the Court obliged with a short discourse there on how the phrase "in
nature" came to find its way into the law, thus:
"The change from the original wording of the bill (expressly declared by law . . . to be policydetermining, etc.) to that finally approved and enacted ('or which are policy-determining, etc.
in nature') came about because of the observations of Senator Taada, that as originally
worded the proposed bill gave Congress power to declare by fiat or law a certain position as
primarily confidential or policy-determining, which should not be the case. The Senator urged
that since the Constitution speaks of positions which are 'primarily confidential, policydetermining, or highly technical in nature', it is not within the power of Congress to declare
what positions are primarily confidential or policy-determining. 'It is the nature alone of the
position that determines whether it is policy-determining or primarily confidential.' Hence, the
Senator further observed, the matter should be left to the 'proper implementation of the laws,
depending upon the nature of the position to be filled', and if the position is 'highly
confidential' then the President and the Civil Service Commissioner must implement the law.
To a question of Senator Tolentino, 'But in positions that involved both confidential matters
and matters which are routine, . . . who is going to determine whether it is primarily
confidential?' Senator Taada replied:
'SENATOR TAADA: Well, at the first instance, it is the appointing power that determines
that: the nature of the position. In case of conflict then it is the Court that determines whether
the position is primarily confidential or not" (Emphasis in the original text).
Hence the dictum that, at least since the enactment of the Civil Service Act of 1959, it is the
nature of the position which finally determines whether a position is primarily confidential,
policy-determining or highly technical. And the court in the aforecited case explicitly decreed
that executive pronouncements, such as Presidential Decree No. 1869, can be no more than
initial determinations that are not conclusive in case of conflict. It must be so, or else it would
then lie within the discretion of the Chief Executive to deny to any officer, by executive fiat,
the protection of Section 4, Article XII (now Section 2[3], Article IX-B) of the Constitution.
11 In other words, Section 16 of Presidential Decree No. 1869 cannot be given a literally
stringent application without compromising the constitutionally protected right of an employee
to security of tenure.

in the Bar is not a highly technical position. Since the term 'highly technical' means something
beyond the ordinary requirements of the profession, it is always a question of fact.
The doctrinal ruling enunciated in Piero finds support in the 1935 Constitution and was
reaffirmed in the 1973 Constitution, as well as in the implementing rules of Presidential
Decree No. 807, or the Civil Service Decree of the Philippines. 12 It may will be observed that
both the 1935 and 1973 Constitutions contain the provision, in Section 2, Article XII-B
thereof, that "appointments in the Civil Service, except as to those which are policydetermining, primarily confidential, or highly technical in nature, shall be made only
according to merit and fitness, to be determined as far as practicable by competitive
examination. "Corollarily, Section 5 of Republic Act No. 2260 states that "the noncompetitive or unclassified service shall be composed of positions expressly declared by law
to be in the non-competitive or unclassified service or those which are policy-determining,
primarily confidential, or highly technical in nature." Likewise, Section 1 of the General Rules
in the implementing rules of Presidential Decree No. 807 states that "appointments in the Civil
Service, except as to those which are the policy-determining, primarily confidential, or highly
technical in nature, shall be made only according to merit and fitness to be determined as far
as practicable by competitive examination." Let it here be emphasized, as we have accordingly
italicized them, that these fundamental laws and legislative or executive enactments all
utilized the phrase "in nature" to describe the character of the positions being classified.
The question that may now be asked is whether the Piero doctrine to the effect that
notwithstanding any statutory classification to the contrary, it is still the nature of the position,
as may be ascertained by the court in case of conflict, which finally determines whether a
position is primarily confidential, policy-determining or highly technical is still controlling
with the advent of the 1987 Constitution and the Administrative Code of 1987, 13 Book V of
which deals specifically with the Civil Service Commission, considering that from these later
enactments, in defining positions which are policy-determining, primarily confidential or
highly technical, the phrase "in nature" was deleted. 14
We rule in the affirmative. The matter was clarified and extensively discussed during the
deliberations in the plenary session of the 1986 Constitutional Commission on the Civil
Service provisions, to wit:
"MR. FOZ. Which department of government has the power or authority to determine whether
a position is policy-determining or primarily confidential or highly technical?
FR. BERNAS: The initial decision is made by the legislative body or by the executive
department, but the final decision is done by the court. The Supreme Court has constantly held
that whether or not a position is policy-determining, primarily confidential or highly technical,
it is determined not by the title but by the nature of the task that is entrusted to it. For instance,
we might have a case where a position is created requiring that the holder of that position
should be a member of the Bar and the law classifies this position as highly technical.
However, the Supreme Court has said before that a position which requires mere membership

MR. FOZ. Does not commissioner Bernas agree that the general rule should be that the merit
system or the competitive system should be upheld?
FR. BERNAS. I agree that it should be the general rule; that is why we are putting this as an
exception.
MR. FOZ. The declaration that certain positions are policy-determining, primarily confidential
or highly technical has been the source of practices which amount to the spoils system.
FR. BERNAS. The Supreme Court has always said that, but if the law of the administrative
agency says that a position is primarily confidential when in fact it is not, we can always
challenge that in court. It is not enough that the law calls it primarily confidential to make it
such; it is the nature of the duties which makes a position primarily confidential.
MR. FOZ. The effect of a declaration that a position is policy-determining, primarily
confidential or highly technical as an exception is to take it away from the usual rules
and provisions of the Civil Service Law and to place it in a class by itself so that it can avail
itself of certain privileges not available to the ordinary run of government employees and
officers.
FR. BERNAS. As I have already said, this classification does not do away with the
requirement of merit and fitness. All it says is that there are certain positions which should not
be determined by competitive examination.
For instance, I have just mentioned a position in the Atomic Energy Commission. Shall we
require a physicist to undergo a competitive examination before appointment? Or a
confidential secretary or any position in policy-determining administrative bodies, for that
matter? There are other ways of determining merit and fitness than competitive examination.
This is not a denial of the requirement of merit and fitness" (Emphasis supplied). 15
It is thus clearly deducible, if not altogether apparent, that the primary purpose of the framers
of the 1987 Constitution in providing for the declaration of a position as policy-determining,
primarily confidential or highly technical is to exempt these categories from competitive
examination as a means for determining merit and fitness. It must be stressed further that these
positions are covered by security of tenure, although they are considered non-competitive only
in the sense that appointees thereto do not have to undergo competitive examinations for
purposes of determining merit and fitness.
In fact, the CSC itself ascribes to this view as may be gleaned from its questioned resolution
wherein it stated that "the declaration of a position is primarily confidential if at all, merely
exempts the position from the civil service eligibility requirement." Accordingly, the Piero
doctrine continues to be applicable up to the present and is hereby maintained. Such being the

case, the submission that PAGCOR employees have been declared confidential appointees by
operation of law under the bare authority of CSC Resolution No. 91-830 must be rejected.
We likewise find that in holding that herein private respondent is not a confidential employee,
respondent Court of Appeals correctly applied the "proximity rule" enunciated in the early but
still authoritative case of De los Santos vs. Mallare, et al., 16 which held that:
"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 primarily close
intimacy which ensures freedom of intercourse without embarrassment or freedom from
misgivings of betrayals of personal trust or confidential matters of state. . . ." (Emphasis
supplied).
This was reiterated in Piero, et al. vs. Hechanova, et al., supra, the facts of which are
substantially similar to the case at bar, involving as it did employees occupying positions in
various capacities in the Port Patrol Division of the Bureau of Customs. The Court there held
that the mere fact that the members of the Port Patrol Division are part of the Customs police
force is not in itself a sufficient indication that their positions are primarily confidential. After
quoting the foregoing passage from De los Santos, it trenchantly declared:
"As previously pointed out, there are no proven facts to show that there is any such close
intimacy and trust between the appointing power and the appellees as would support a finding
that confidence was the primary reason for the existence of the positions held by them or for
their appointment thereto. Certainly, it is extremely improbable that the service demands any
such closed trust and intimate relation between the appointing official and, not one or two
members alone but the entire Customs patrol (Harbor Police) force, so that every member
thereof can be said to hold 'primarily confidential' posts". (Emphasis supplied).
It can thus be safely determined therefrom that the occupant of a particular position could be
considered a confidential employee if the predominant reason why he was chosen by the
appointing authority was, to repeat, the latter's belief that he can share a close intimate
relationship with the occupant which ensures freedom of discussion, without fear of
embarrassment or misgivings of possible betrayal of personal trust or confidential matters of
state. Withal, where the position occupied is remote from that of the appointing authority, the
element of trust between them is no longer predominant. 17
Several factors lead to the conclusion that private respondent does not enjoy such "close
intimacy" with the appointing authority of PAGCOR which would otherwise place him in the
category of a confidential employee, to wit:
1. As an Internal Security Staff member, private respondent routinely

a. performs duty assignments at the gaming/or non-gaming areas to prevent irregularities,

misbehavior, illegal transactions and other anomalous activities among the employees and
customers,
b. reports unusual incidents and related observations/information in accordance with
established procedures for infractions/mistakes committed on the table and in other areas;
c. coordinates with CCTV and/or external security as necessary for the prevention,
documentation or suppression of any unwanted incidents at the gaming and non-gaming areas;
d. acts as witness/representative of Security Department during chips inventory, refills, yields,
card shuffling and final shuffling;

e. performs escort functions during the delivery of table capital boxes, refills and shoe boxes
to the respective tables, or during transfer of yields to Treasury. 18
Based on the nature of such functions of herein private respondent and as found by respondent
Court of Appeals, while it may be said that honesty and integrity are primary considerations in
his appointment as a member of the ISS, his position does not involve "such close intimacy"
between him and the appointing authority, that is, the Chairman of PAGCOR, as would ensure
"freedom from misgivings of betrayals of personal trust." 19
2. Although appointed by the Chairman, ISS members do not directly report to the Office of
the Chairman in the performance of their official duties. An ISS members is subject to the
control and supervision of an Area Supervisor who, in turn, only implements the directives of
the Branch Chief Security Officer. The latter is himself answerable to the Chairman and the
Board of Directors. Obviously, as the lowest in the chain of command, private respondent
does not enjoy that "primarily close intimacy" which characterizes a confidential employee.
3. The position of an ISS member belongs to the bottom level of the salary scale of the
corporation, being in Pay Class 2 level only, whereas the highest level is Pay Class 12.
Taking into consideration the nature of his functions, his organizational ranking and his
compensation level, it is obviously beyond debate that private respondent cannot be
considered a confidential employee. As set out in the job description of his position, one is
struck by the ordinary, routinary and quotidian character of his duties and functions.
Moreover, the modest rank and fungible nature of the position occupied by private respondent
is underscored by the fact that the salary attached to it is a meager P2,200.00 a month. There
thus appears nothing to suggest that private respondent's position was "highly" or much less,
"primarily" confidential in nature. The fact that, sometimes, private respondent may handle
ordinarily "confidential matters" or papers which are somewhat confidential in nature does not
suffice to characterize his position as primarily confidential. 20 lexlib

In addition, the allegation of petitioners that PAGCOR employees have been declared to be
confidential appointees in the case of Philippine Amusement and Gaming Corporation vs.
Court of Appeals, et al., ante, is misleading. What was there stated is as follows:
"The record shows that the separation of the private respondent was done in accordance with
PD 1869, which provides that the employees of the PAGCOR hold confidential positions.
Montoya is not assailing the validity of that law. The act that he is questioning is what he calls
the arbitrary manner of his dismissal thereunder that he avers entitled her to damages under
the Civil Code." (Emphasis ours).
Thus the aforecited case was decided on the uncontested assumption that the private
respondent therein was a confidential employee, for the simple reason that the propriety of
Section 16 of Presidential Decree No. 1869 was never controverted nor raised as an issue
therein. That decree was mentioned merely in connection with its provision that PAGCOR
employees hold confidential positions. Evidently, therefore, it cannot be considered as
controlling in the case at bar. Even the fact that a statute has been accepted as valid in cases
where its validity was not challenged does not preclude the court from later passing upon its
constitutionality in an appropriate cause where that question is squarely and properly raised.
Such circumstances merely reinforce the presumption of constitutionality of the law. 21
WHEREFORE, the impugned judgment of respondent Court of Appeals is hereby
AFFIRMED in toto.

I agree with the thorough and exhaustive ponencia of Mr. Justice Florenz D. Regalado
supporting the theory of the appellate court that Salas, not being a confidential employee, may
not be dismissed for mere lack of trust or confidence, nevertheless, I should like to bring into
focus the phrase, "without prejudice to the filing of administrative charges against (Salas) if
warranted," found in the dispositive portion of the decision of the appellate court. It would
seem to me that the adverse findings arrived at by the Intelligence Division of PAGCOR
which the Board of Directors relied upon to terminate the services of Salas on ground of loss
of confidence could well be constitutive of the administrative infractions that the appellate
court must have had in mind. The ponencia itself states:
"The summary of intelligence information claimed that respondent was allegedly engaged in
proxy betting as detailed in the affidavits purportedly executed by two customers of PAGCOR
who claimed that they were used as gunners on different occasions by respondent. The
polygraph tests taken by the latter also yielded corroborative and unfavorable results."
In my view, the case should, instead, be remanded to the CSC to specifically meet head-on
PAGCOR's foregoing findings and to thereby fully ventilate, as well as pass upon, the appeal
to it (CSC) on the basis with an opportunity for a hearing adequately accorded to Salas.
I vote, therefore, for remanding the case to the Civil Service Commission for further
proceedings.

SO ORDERED.
Narvasa, C .J ., Padilla, Davide, Jr., Romero, Melo, Puno, Kapunan, Mendoza, Hermosisima,
Jr., Panganiban and Torres, Jr., JJ ., concur.

[G.R. No. 77373. August 22, 1991.]

Bellosillo and Francisco, JJ ., are on leave.

EDMUNDO C. JOCOM, petitioner, vs. THE HON. ANDRES C. REGALADO, Presiding

Judge of the Regional Court, 5th Judicial Region, Branch XXV, Naga City and JESSIE M.
ROBREDO, respondents.

Separate Opinions

Romero, Lagman, Torres, Arrieta & Evangelista for petitioner.

VITUG, J ., concurring:

Luis General, Jr. for private respondent.

The appeal in this case appears to confine itself to the issue, in main, of whether or not
respondent Rafael Salas, an Internal Security Staff member of Philippine Amusement and
Gaming Corporation ("PAGCOR") assigned to the casino at the Manila Pavilion Hotel, is a
confidential employee.

DECISION

The Civil Service Commission ("CSC") which upheld the dismissal of Salas ruled that the
latter was a confidential employee by operation of law and that, consequently, there was no act
of dismissal to speak of but, rather, a mere expiration of an employee's term of office. The
Court of Appeals held otherwise and ordered the reinstatement of Salas with full backwages
for having been illegally dismissed by PAGCOR albeit without prejudice to the filing of
administrative charges against him such as may be warranted.

PADILLA, J p:
This is a petition for certiorari prohibition and mandamus, with prayer for the issuance of a
writ of preliminary injunction and/or temporary restraining order, to annul the temporary
restraining order issued by the Regional Trial Court of Naga City, Branch XXV contained in
its orders dated 3 and 9 February 1987 1 and its orders dated 11 and 18 February 1987 denying
petitioner's motion for raffle of the case and motion to dismiss, respectively. 2 Petitioner also
seeks to enjoin the respondent judge from further enforcing the disputed orders and from
proceeding with the hearing of the case before the court a quo, and to compel private

respondent Jessie M. Robredo to vacate the Office of Project Director of the Bicol River Basin
Development Program (hereinafter referred to as BRBDP, for brevity), and to order him
(Robredo) to turn over the said office to herein petitioner Eduardo C. Jocom. The factual
background of the case is as follows: cdll
On 7 May 1973, the Bicol River Basin Council was created under PD 412, to oversee, unify
and integrate the administration and implementation of the pilot river basin development
program of the country. The Council was headed by an Executive Director and four (4)
Deputy Directors.
On 28 April 1978, PD 926 modified the organizational structure of BRBDP by placing it
under the supervision and direction of the Cabinet Coordinating Committee on Integrated
Rural Development Projects of the National Economic and Development Authority (NEDA).
Under Sec. 5 of said law, the Cabinet Committee Coordinator for the Program had the power
to appoint the "Program Director" as head of the program office and other heads of major
organizational subdivisions of the program. The "Program Director" had the following powers
and functions:
"Sec. 6. Powers and Functions of the Program Director. The Program Director shall
exercise the following powers and functions:
a. Execute and administer the policies and decisions of the Cabinet Committee;
b. Directly coordinate the activities of all implementing departments and agencies in the
planning and implementation of the projects;
c. Submit periodic financial and work accomplishment reports relating to project
implementation to the Cabinet Committee, the Budget Commission and other Agencies
concerned through the Cabinet Committee Coordinator;
d. Consolidate, for the approval of the Cabinet Committee Coordinator, requests for budget
releases of projects of the implementing departments and agencies in accordance with
consolidated plans, budgets and work programs approved by the Cabinet Committee;
e. Collect and consolidate all project accounts under the Program maintained by the
implementing departments and agencies;
f. Organize and manage the Program Office and adopt administrative rules and procedures for
its internal management.
g. Call upon any department, bureau, office, agency, instrumentality or any political
subdivision of the Government to assist in the planning and implementation of the Program;
h. Enter into contracts with private or public entities in connection with the functions of the
Program Office, subject to the approval of the Cabinet Committee Coordinator; and

i. Perform such other functions as may be assigned by the Cabinet Committee Coordinator." 3
On 17 May 1978, PD 1378 created the National Council on Integrated Area Development
(NACLAD) in lieu of the Cabinet Coordinating Committee on Integrated Rural Development
Projects, with the President of the Philippines as Chairman. Despite the abolition of the
Cabinet Coordinating Committee, the "Project Directors" of the various on-going projects,
such as the Mindoro, Bicol, Samar and Cagayan Projects, retained their respective powers,
functions, tenures and compensation.
On 11 June 1978, PD 1553 amended certain provisions of PD 926 modifying the
organizational structure of BRBDP.
On 4 July 1981, Executive Order No. 708 transferred the Chairmanship of the National
Council on Integrated Area Development (NACIAD) to the Prime Minister. LibLex
On 16 September 1981, Executive Order No. 835 revised the charter of NACIAD, Sec. 7
thereof authorized the Council to establish ad hoc support staffs as may be necessary for
particular integrated area development projects, which shall exist for the duration of said
projects. Each project support staff shall be headed by a "Project Director." The Prime
Minister as Chairman of the Council was vested with power to appoint the "Project Directors"
of the various integrated area development projects.
After the February 1986 revolution, Vice-President Salvador H. Laurel was appointed by the
President to be Prime Minister and he ipso facto became the Chairman of the National Council
on Integrated Area Development (NACIAD), with the power to appoint the Project Directors
of the various integrated area development projects in the country, 4 which include the Bicol
River Basin Development Program (BRBDP). 5
In the exercise of his powers as Chairman of NACIAD before the proclamation of the
Freedom Constitution, on 25 March 1986, Vice-President Laurel appointed private respondent
Jessie M. Robredo to the position of "Program Director" of BRBDP vice Carmelo Villacorta.
6
In the late afternoon of that same day (25 March 1986), President Aquino issued Proc. No. 3
(Freedom Constitution), Article 1 of which declared that Art. XI of the 1973 Constitution and
the amendments thereto dealing with the Prime Minister and the Cabinet were deemed
superseded.
However, on 27 January 1987, Vice-President Laurel appointed petitioner Jocom to the
position of "Project Director" of BRBDP. 7 Simultaneous with petitioner Jocom's
appointment, private respondent Robredo was informed of his termination from office without
stating the ground for his dismissal. 8

Armed with his appointment, petitioner attempted to assume the Office of "Project Director"
of BRBDP but private respondent, allegedly with some armed men, prevented petitioner from
assuming said office by barricading the building of BRBDP, located at Pili, Camarines Sur.
To compel petitioner Jocom to desist from attempting to assume the Office of Project Director
of BRBDP, private respondent Robredo filed a petition for injunction with the RTC of Naga
City, Branch XXV, docketed as RTC-87-1131. On 3 February 1987, the trial court issued an
order "enjoining respondent Edmundo C. Jocom, for a period of twenty (20) days from the
date hereof, to desist from assuming the above-named office such as exercising the powers
and performing the functions thereof," and set the hearing for issuance of preliminary
injunction. 9
Based on the amended petition filed by private respondent Robredo, alleging that the funds of
BRBDP deposited with the Philippine National Bank were frozen by the bank, which could
result in paralyzing the operations of BRBDP, and in order to give force and effect to the 3
February 1987 order granting the temporary restraining order), the trial court issued another
order dated 9 February 1987, 10 ordering Messrs. Vicente B. de la Vina and Ramon Encina, in
their capacities as Branch Manager and Cashier of PNB, respectively, "to honor all the checks
of the BRBDP under petitioner, Jessie M. Robredo, as Project Director and until further
orders."
On 3 February 1987, petitioner Jocom moved for the raffle of the case, claiming that there was
no raffle committee which conducted a special raffle of the case In an order dated 11 February
1987, the court a quo denied said motion on the ground that the same should have been
addressed to the Executive Judge who presided over such special raffle; and that insofar as the
court a quo was concerned, the legal presumption of regularity of performance of duty in
conducting the raffle holds. 11
Petitioner then moved to dismiss the private respondent's petition, on jurisdictional ground,
relying on Sec. 4 of Executive Order No. 17 which provides that no restraining order or
preliminary injunction can be issued by any court to enjoin the separation/replacement of any
official or employee in the government service. On 18 February 1987, the trial court denied
said motion, holding that the prohibition against the issuance of an injunction and/or
restraining order is not applicable to an appointee under the Freedom Constitution, who is
actually a replacement to an employee appointed under the 1973 Constitution. Hence, this
petition. LLphil
To support his claim as the rightful and legal appointee to the Office of Project Director of
BRBDP, petitioner argues that private respondent Robredo is not qualified for the position of
"Project Director" because he was below the required age of thirty (30) years provided under
the law at the time of his appointment; that a "Project Director" performs an executive
function and the position is without a fixed term, thus, the appointee may be removed with or
without cause upon the discretion of the appointing authority; and that Sec. 4 of Executive
Order No. 17 does not allow the court to enjoin or restrain the separation/replacement of
government employees in the course of a reorganization process; that private respondent's

recourse for his alleged removal should not have been an independent action for injunction but
a petition for reconsideration before the Committee created by E.O. No. 17.
On the other hand, private respondent Robredo alleges that petitioner's appointment is void,
because all the executive powers and functions devolving upon Vice-President Laurel as
Prime Minister, including his power as Chairman of NACIAD to appoint the Project Director
of BRBDP had reverted to the President after the promulgation of the Freedom Constitution,
which abolished the position of Prime Minister.

In a recent Executive Order (No. 374) promulgated on 30 May 1989, the BRBDP was
abolished and its functions were transferred to the Regional Development Council and to the
Governors of Camarines Sur and Albay. 12 All qualified personnel affected by such abolition
are entitled to receive retirement benefits. 13 The abolition of BRBDP notwithstanding, we
find it necessary to settle the issue as to who was the proper appointee to the position of
Program/Project Director of BRBDP, entitled to hold said office prior to said abolition, to
determine the party entitled to receive the separation benefits provided by law.
We find insufficient merit in the petition.
After a careful study of the various laws affecting the creation of BRBDP, it appears that the
position of "Program Director" under PD 926 (creating BRBDP) and the position of "Project
Director" under PD 1378 and Executive Order Nos. 731 and 835 (charter of NACIAD), are
one and the same position, with the main function of heading the BRBDP. The power to
appoint the Program/Project Director to head the BRBDP originally belonged to the Cabinet
Committee Coordination, but with the subsequent amendments to the organizational structure
of BRBDP and that of NACIAD, the power was delegated to the Chairman of NACIAD.
During Vice-President Laurel's short tenure as Prime Minister, he became the Chairman of
NACIAD, with the power to appoint the Program/Project Directors of the various integrated
area development projects, including the BRBDP. However, after the promulgation of the
Freedom Constitution, all provisions regarding the Office of the Prime Minister were deleted,
which indicated the abolition of said office. The control over all ministries and other functions
and powers pertaining to the Prime Minister reverted to the President. In view of the abolition
of the Office of Prime Minister, the functions of Vice-President Laurel as Chairman of
NACIAD also ceased, and the Chairmanship became part of the executive functions of the
President.
As Chairman of NACIAD, the President thru her Deputy Executive Secretary, exercised the
functions and powers of said office and informed the Congressmen of the different provinces
of the Bicol Region of the development projects of NACIAD in their provinces thru BRBDP,
as contained in her letters dated 8 July 1987. 14

At the time of petitioner's appointment, Vice-President Laurel had already ceased to be

Chairman of NACIAD. His appointment of herein petitioner to the position of
Program/Project Director and the removal of private respondent from said position, were in
the exercise of power that already belonged to the President. Hence, such appointment and
removal were null and void, and petitioner cannot claim to have had a valid right to the
position of Program/Project Director of BRBDP. Cdpr
But, even assuming that Vice-President Laurel still had the power to appoint herein petitioner
as Program/Project Director of BRBDP, private respondent could not be removed from said
position, without just cause. There was thus no vacancy in the office justifying the
appointment thereto of petitioner Jocom.
All branches, subdivisions, instrumentalities and agencies of the government, including
government owned and controlled corporations with original charters are covered by the civil
service and its rules and regulations. Appointments to the civil service are based on merit and
fitness determined by competitive examinations, except appointments to positions which are
policy determining, primarily confidential or highly technical. 15 The Civil Service Law
classifies the positions in the civil service into career and non-career service positions. The
career service is characterized by (1) entrance based on merit and fitness to be determined as
far as practicable by competitive examinations, or based on highly technical qualifications; (2)
opportunity for advancement to higher career positions; and (3) security of tenure; 16 while a
non-career position is characterized by (1) entrance on bases other than those of the usual tests
of merit and fitness utilized for the career service; and (2) tenure which is limited to a period
specified by law, or which is co-terminous with that of the appointing authority or subject to
his pleasure, or limited to the duration of a particular project for which purpose employment
was extended. 17
Regardless of the classification of the position held by a government employee covered by
civil service rules, be it a career or non-career position, such employee may not be removed
without just cause. An employee who belongs to the non-career service is protected from
removal or suspension without just cause and non-observance of due process.
"xxx xxx xxx
"As an employee in the civil service and as civil service eligible, respondent is entitled to the
benefits, rights and privileges extended to those belonging to the service. He cannot be
removed or dismissed without just cause, much less, without formal charge or prior notice.
The fact that his position falls under the unclassified service or the noncareer service does not
remove him from the protective mantle of the Civil Service Law. Persons in the unclassified
service are merely so designated because the nature of their work and qualifications are not
subject to classification unlike those in the classified service. . . ." 18

officer or employee, for the discharge of the functions of his office, 19 or expiration of the
project for which employment was extended.
The law 20 modifying the organizational structure of BRBDP enumerated the following
qualifications of the appointee to the position of "Project Director," namely: (a) a natural-born
citizen of the Philippines; (b) at least thirty (30) years of age; and (c) of proven record of
executive competence in the field of public administration and/or infrastructure projects and/or
in the management of agricultural, industrial or commercial enterprises. Although petitioner
claims that private respondent was below the age of 30 years at the time of his appointment to
qualify to the position of Program/Project Director, no sufficient proof was presented to
substantiate such claim. LexLib
With regard to the tenure of the appointee to the position of Program Project Director, PD 926
is silent on the matter. However, in the Revised Charter of NACIAD, 21 the Council is given
the authority to establish ad hoc support staffs as may be necessary for particular integrated
area development projects to be headed by a "Project Director," which shall exist only for the
duration of said projects. The Council is likewise given the power to re-organize or abolish
project support staffs under its supervision and control.
From the foregoing provisions of law, it would appear that the position of Program Project
Director falls under the classification of a non-career position where the tenure of the
appointee is subject to the duration of the project, while entrance to the position is based on
the fact that the appointee possess all the qualifications required by law for the position.
However, despite the classification of the position of Program Project Director as a non-career
position, the appointee was nonetheless protected by the rules on security of tenure, and could
not be removed from office at the whim and caprice of the appointing authorities without just
cause and without observing the rules on due process. The termination of private respondent
from the office of Program/Project Director failed to state the ground of such removal from
office, thus, his removal from office was without just cause.
Sec. 4 of Exec. Order No. 17, 22 which prohibits the issuance of any restraining order or writ
of preliminary injunction to enjoin the separation replacement of any official or employee in
the government service, is intended to prevent delay in the government reorganization process
provided under the Freedom Constitution. However, such ban cannot apply in the case at bar
because petitioner Jocom's appointment was not made pursuant to a valid reorganization. At
the time of his appointment, Vice-President Laurel was no longer the Chairman of NACIAD
and had lost the power to appoint the Program Project Director, or even reorganize the
BRBDP.
ACCORDINGLY, petition is hereby DISMISSED.
SO ORDERED.

The constitutional and statutory guarantee of security of tenure is extended to both those in the
career and non-career service positions, and the cause under which an employee may be
removed or suspended must naturally have some relation to the character or fitness of the