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G.R. No.

170093

April 29, 2009

JOSE PEPITO M. AMORES, M.D., Petitioner, vs. CIVIL SERVICE COMMISSION, BOARD OF TRUSTEES OF THE LUNG CENTER OF THE PHILIPPINES, as represented by Hon. MANUEL M. DAYRIT, and FERNANDO A. MELENDRES, M.D., Respondents. In this petition for review under Rule 45 of the Rules of Court, petitioner Jose Pepito M. Amores assails the Decision 1 of the Court of Appeals in CA-G.R. SP No. 80971, dated September 23, 2004, as well as its Resolution2 dated September 20, 2005 which denied reconsideration. The assailed Decision affirmed the October 14, 2003 Resolution3 of the Civil Service Commission which, in turn, ordered petitioners separation from service as Deputy Director for Hospital Support Services at the Lung Center of the Philippines on account of his lack of the necessary civil service eligibility. Well established are the facts of the case. Petitioner Jose Pepito M. Amores was the Deputy Director for Hospital Support Services at the Lung Center of the Philippines (LCP). His civil service career began in 1982 when he was initially engaged at the LCP as a resident physician.4 In the course of his service, he had been promoted to the position of Medical Specialist,5 then to Department Manager,6 and finally to Deputy Director. Dr. Calixto Zaldivar was then the Executive Director of the LCP and when he retired from service in 1999, petitioner was designated as officer-in-charge of the LCP by the Department of Health (DOH) Secretary Alberto Romualdez, Jr.7 Petitioner had taken charge of the LCP in the interim that the DOH selection board was in the process of selecting a new executive director. In the meantime, Dr. Fernando Melendres (Melendres), one of the respondents in this case, was appointed by then President Joseph Estrada as Executive Director of the LCP. Melendres was holding the office of the Deputy Director for Medical Support Services before his appointment as Executive Director, and although petitioner claims that he was not challenging Melendres right to the office, he nevertheless believed that he himself was the rightful person to be appointed as executive director inasmuch as he had top-billed the evaluation results of the DOH Selection Board, with Melendres tailing behind in second place.8 It seems that the controversy started when petitioner and the other doctors and rank-and-file employees at the LCP drafted a manifesto9 which supposedly ventilated their collective dismay and demoralization at Melendres appointment and leadership, and at some of his "unjustified and questionable acts" as Executive Director of the LCP. In a nutshell, the said manifesto boldly exposed the alleged anomalous circumstances surrounding Melendres appointment; the reassignment of some of the members of the LCP personnel which amounted to demotion in their rank and status; the anomalies in the procurement of property and supplies; his abusive conduct in publicly accusing some of the doctors of having caused the fire that gutted the center in May 1998; in accusing Zaldivar of having entered into anomalous contracts and negotiations with the DPWH relative to certain projects; and in practicing favoritism and nepotism. The tenor of the manifesto even went as far as to be deeply personal as

it likewise questioned Melendres fitness to act as executive director on the ground of his previous brush with substance abuse and the fact that he could no longer keep his marriage from failing.10 The seriousness of these allegations led the DOH to create a Factfinding Committee to conduct an investigation.11 But at the proceedings before the said Committee, Melendres filed charges of dishonesty and double compensation against petitioner alleging that the latter had been engaging in the private practice of medicine within the LCPs premises during official hours.12 At the close of the investigation, the Fact-finding Committee issued a report declaring Melendres guilty of the charges against him.13 As for petitioner, the Committee absolved him of the charge of receiving double compensation, but nevertheless found him guilty of having committed dishonesty by engaging in the private practice of his profession during the hours that he should be engaging in public service in violation of the Civil Service Law.141avvphil.net Petitioner was caught by surprise when, on August 27, 2002, he received a letter from the LCP Board of Trustees informing him of his separation from service as Deputy Director effective September 30, 2002.15 To the said letter was attached a copy of the Boards Resolution16 dated August 23, 2002, principally directing petitioners termination from service after consultation with the Career Executive Service Board (CES Board).17 Petitioner brought an appeal from the resolution to the Civil Service Commission (CSC).18 Resolving the appeal, the CSC declared that the LCP Board of Trustees had properly and validly separated petitioner from his post as Deputy Director. In its Resolution No. 031050,19 the CSC declined to pass upon the charge of dishonesty on the ground of pre-maturity as the issue had not yet been finally determined in a proper proceeding and the Board had not yet in fact made a definite finding of guilt from which petitioner might as a matter of course appeal.20 However, it pointed out that petitioners separation from service was anchored on his lack of a CES eligibility which is required for the position of deputy director and, as such, he enjoyed no security in his tenure.21 Petitioner lodged an Appeal22 with the Court of Appeals. However, it was dismissed and CSC Resolution No. 031050 was affirmed.23 This present petition for review imputes error to the Court of Appeals. First, in missing the fact that petitioner had been denied due process when his separation from office was ordered on a ground not raised before the DOH Fact-finding Committee24 and, second, in failing to appreciate the fact that his rights to equal protection had likewise been violated inasmuch as he was similarly situated with other department managers in the LCP who had no CES eligibility but who, however, had not been separated from service.25 He theorizes that his right to security of tenure had been breached and that he was entitled to remain as deputy director because his promotion to the said position supposedly issued by Zaldivar which was a recognition of his competence was permanent in character.26 The LCP, the CSC and the DOH, all represented by the Office of the Solicitor General, and Melendres, are one in asserting that there can be no question as to the validity of petitioners removal from

office for the basic fact that he enjoyed no security of tenure on account of his lack of eligibility. In his Comment27 on the petition, Melendres capitalizes on the fact that the LCP Board of Trustees arrived at the resolution to separate petitioner from service upon consultation with the CES Board and the CSC; thus, concludes Melendres, it can only be surmised that the cause for the removal of petitioner from office is actually his lack of eligibility and not his commission of dishonesty. The LCP, for its part, is more to the point. It posits that petitioners separation from office did not result from an administrative disciplinary action, but rather from his failure to qualify for the office of Deputy Director on account of lack of eligibility. For their part, the CSC and the DOH characterizes petitioner as a third-level appointee who, again, must be in possession of the corresponding third-level eligibility; but since petitioner has none, then he enjoys no security of tenure and may thus be removed at a moments notice even without cause. There is merit in the arguments of respondents. What at the outset weighs heavily on petitioners case is the fact that the position of Deputy Director for Hospital Support Services at the LCP belongs to the career executive service appointments to which by law require that the appointees possess the corresponding CES eligibility. Petitioner, however, does not profess that at any time he was holding the said position he was able to acquire the required eligibility therefor by taking the CES examinations and, subsequently, conferred such eligibility upon passing the said examinations. In fact, no slightest suggestion can be derived from the records of this case which would tend to show that in his entire tenure at the LCP he, at any given point, had been conferred a CES eligibility. It is thus as much surprising as it is absurd why petitioner, despite the limitations in his qualifications known to him, would insist that he had served as Deputy Director at the LCP in a permanent capacity. We begin with the precept, firmly established by law and jurisprudence, that a permanent appointment in the civil service is issued to a person who has met the requirements of the position to which the appointment is made in accordance with law and the rules issued pursuant thereto.28 An appointment is permanent where the appointee meets all the requirements for the position to which he is being appointed, including the appropriate eligibility prescribed, and it is temporary where the appointee meets all the requirements for the position except only the appropriate civil service eligibility.29 Under Section 730 of the Civil Service Law,31 positions in the civil service are classified into open career positions, closed career positions and positions in the career service. In turn, positions in the career service are tiered in three levels as follows: SECTION 8. Classes of Positions in the Career Service. - (1) Classes of positions in the career service appointment to which requires examinations which shall be grouped into three major levels as follows: (a) The first level shall include the clerical, trades, crafts and custodial service positions which involve nonprofessional or subprofessional work in a nonsupervisory 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 the Division Chief level; and (c) The third level shall cover positions in the Career Executive Service. With particular reference to positions in the career executive service (CES), the requisite civil service eligibility is acquired upon passing the CES examinations administered by the CES Board and the subsequent conferment of such eligibility upon passing the examinations.32 Once a person acquires eligibility, he either earns the status of a permanent appointee to the CES position to which he has previously been appointed, or he becomes qualified for a permanent appointment to that position provided only that he also possesses all the other qualifications for the position.33 Verily, it is clear that the possession of the required CES eligibility is that which will make an appointment in the career executive service a permanent one. Petitioner does not possess such eligibility, however, it cannot be said that his appointment to the position was permanent. Indeed, the law permits, on many occasions, the appointment of non-CES eligibles to CES positions in the government34 in the absence of appropriate eligibles and when there is necessity in the interest of public service to fill vacancies in the government.35 But in all such cases, the appointment is at best merely temporary 36 as it is said to be conditioned on the subsequent obtention of the required CES eligibility.37 This rule, according to De Leon v. Court of Appeals,38 Dimayuga v. Benedicto,39 Caringal v. Philippine Charity Sweepstakes Office,40 and Achacoso v. Macaraig,41 is invariable even though the given appointment may have been designated as permanent by the appointing authority. We now come to address the issue of whether petitioners separation from service violated his right to security of tenure. Security of tenure in the career executive service, which presupposes a permanent appointment, takes place upon passing the CES examinations administered by the CES Board. It is that which entitles the examinee to conferment of CES eligibility and the inclusion of his name in the roster of CES eligibles.42 Under the rules and regulations promulgated by the CES Board, conferment of the CES eligibility is done by the CES Board through a formal board resolution after an evaluation has been done of the examinees performance in the four stages of the CES eligibility examinations. Upon conferment of 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 Boards recommendation. It is this process which completes the officials membership in the CES and confers on him security of tenure in the CES.43 Petitioner does not seem to have gone through this definitive process. At this juncture, what comes unmistakably clear is the fact that because petitioner lacked the proper CES eligibility and therefore had not held the subject office in a permanent capacity, there could not have been any violation of petitioners supposed ri ght to security of tenure inasmuch as he had never been in possession of

the said right at least during his tenure as Deputy Director for Hospital Support Services. Hence, no challenge may be offered against his separation from office even if it be for no cause and at a moments notice.44 Not even his own self-serving claim that he was competent to continue serving as Deputy Director may actually and legally give even the slightest semblance of authority to his thesis that he should remain in office. Be that as it may, it bears emphasis that, in any case, the mere fact that an employee is a CES eligible does not automatically operate to vest security of tenure on the appointee inasmuch as the security of tenure of employees in the career executive service, except first and second-level employees, pertains only to rank and not to the office or position to which they may be appointed.45 Anent the other issues raised in this petition, we find the same to be merely petitioners last-ditch attempts, futile as they are, to remain in office. Suffice it to say that no further good may be served in needlessly expounding on them. All told, we reiterate the long-standing rule that the mere fact that a particular position belongs to the career service does not automatically confer security of tenure on its occupant. Such right will have to depend on the nature of his appointment, which in turn depends on his eligibility or lack of it. A person who does not have the requisite qualifications for the position cannot be appointed to it in the first place or, only as an exception to the rule, may be appointed to it in an acting capacity in the absence of appropriate eligibles.46 WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. SP No. 80971, dated September 23, 2004, affirming Resolution No. 031050 of the Civil Service Commission, dated October 14, 2003, is AFFIRMED. SO ORDERED. G.R. No. G.R. No. 143366 January 29, 2001 GENERAL, petitioner,

duties and responsibilities of the said office. Subsequently, then President Joseph E. Estrada re-appointed him to the same position on February 8, 1999. At the time of respondent's appointment in 1996 and 1999, he was not a CES eligible. However, during his incumbency, or on August 13, 1999, he was conferred CES eligibility by the Career Executive Service Board.1wphi1.nt On September 7, 1999, petitioner Luis Mario General, who is not a CES eligible,1 was appointed by President Estrada as Regional Director of the LTO in Region V, the same position being occupied by respondent. Pursuant thereto, DOTC Undersecretary Herminio B. Coloma, Jr., as Officer-in-Charge of the Department, issued a Memorandum directing petitioner General to assume the said office immediately and for respondent Roco to report to the Office of the Secretary "for further instructions." Accordingly, petitioner General assumed office on September 16, 1999. Aggrieved, respondent Roco filed before the Court of Appeals a petition for quo warranto with prayer for the issuance of a writ of preliminary injunction and/or temporary restraining order. The Court of Appeals issued a TRO enabling respondent Roco to reassume the disputed office. After the lapse of 60 days, there being no writ of preliminary injunction issued, petitioner General again assumed the said office. On March 10, 2000, the Court of Appeals rendered a decision affirming the appointment of respondent Roco to the Office of Regional Director of the LTO, Region V, nullified the appointment of petitioner General and ordered him to vacate the subject post in favor of respondent Roco.2Upon motion of respondent Roco, the Court of Appeals issued a writ of execution pending appeal.3 From the Court of Appeals' decision, two separate petitions for review under Rule 45 were filed before this Court. The first one, which was filed by General against Roco, was docketed as G.R. No. 143366; while the second petition was filed by the Solicitor General on behalf of the Executive Secretary, the Secretary, Undersecretary and Assistant Secretary of the DOTC, also against Roco, and was docketed as G.R. No. 143524. On June 26, 2000, the Court issued a Resolution in G.R. No. 143366 directing the parties to maintain the status quo ante.4 Both petitions were later consolidated. The thrust of respondent's argument is that a career executive service (CES) eligibility is all that an employee needs to acquire security of tenure in the service; and that appointment to a CES rank is not necessary for the acquisition of such security of tenure. On the other hand, petitioners in G.R. No. 143524 and G.R. No. 143366, claim that CES eligibility alone will not suffice. Petitioners contended that unless and until an employee in the career executive service is appointed to the appropriate CES rank, he acquires no security of tenure. The petitions are impressed with merit. Section 27 (1), of the Civil Service Law (Subtitle A, Title I, Book V of E.O. No. 292), provides: (1) Permanent status. A permanent appointment shall be issued to a person who meets all the requirements for the position to which he is being appointed, including the appropriate eligibility prescribed, in accordance with the

LUIS MARIO M. vs. RAMON S. ROCO, respondent.

X --------------------------------------------------X G.R. No. G.R. No. 143524 January 29, 2001

THE EXECUTIVE SECRETARY, SECRETARY OF TRANSPORTATION and COMMUNICATIONS, UNDERSECRETARY FOR STAFF SERVICES of the DOTC and the ASSISTANT SECRETARY for LAND TRANSPORTATION, petitioners, vs. RAMON S. ROCO, respondent. YNARES-SANTIAGO, J.: Respondent Ramon S. Roco was appointed by then President Fidel V. Ramos on August 26, 1996 as Regional Director of the land Transportation Office (LTO) in Region V, a position equivalent to CES rank level V. He forthwith began to assume and discharge the

provisions of law, rules and standards promulgated in pursuance thereof. In the career executive service, the acquisition of security of tenure which presupposes a permanent appointment is governed by the rules and regulations promulgated by the CES Board,5 thus: Career Executive Service Eligibility Passing the CES examination entitles the examinee to a conferment of a CES eligibility and the inclusion of his name in the roster of CES eligibles. Conferment of CES eligibility is done by the Board through a formal Board Resolution after an evaluation is done of the examinee's performance in the four stages of the CES eligibility examinations. xxx xxx xxx

if comparable to that of Bureau Regional Director if comparable to that of a Bureau Assistant Regional Director

V VI

As a general rule, a CES eligible will be recommended for appointment to the rank equivalent of the level of his managerial responsibility if his performance rating is Satisfactory or higher. If the performance rating is Outstanding, he will be recommended one rank higher than his level of managerial responsibility. (Emphasis supplied) So also, pertinent provisions of the Integrated Reorganization Plan,6 read: c. Appointment. Appointment to appropriate classes in the Career Executive Service shall be made by the President from a list of career executive eligibles recommended by the Board. Such appointments shall be made on the basis of rank; provided that appointments to higher ranks which qualify the incumbents to assignments as undersecretary and heads of bureaus and offices and equivalent positions shall be with the confirmation of the Commission on Appointments. The President may, however, in exceptional cases, appoint any person who is not a Career Executive Service eligible; provided that such appointee shall subsequently take the required Career Executive Service examination and that he shall not be promoted to a higher class until he qualifies in such examination. xxx xxx xxx

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. There are six (6) ranks in the CES ranking structure. The highest rank is that of a Career Executive Service Officer I (CESO I), while the lowest is that of CESO VI. The appropriate CESO rank to which a CES eligible may be appointed depends on two major qualification criteria, namely: (1) level of managerial responsibility; and, (2) performance. Performance is determined by the official's performance rating obtained in the annual CESPES. On the other hand, managerial responsibility is based on the level of the general duties and responsibilities which an eligible is performing, as follows: Levels of Duties and Responsibilities if level of managerial responsibilities are comparable to that of an Undersecretary If comparable to that of an Assistant Secretary if comparable to that of a Bureau Director, or a Department Regional Director if comparable to that of an Assistant Bureau Director, Department Assistant Regional Director or Department Service Chief Rank Equivalent I II III IV

e. Assignments Reassignments and Transfers. Depending upon their ranks, members of the Service shall be assigned to occupy positions 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 Board on the basis of the members' functional expertise. As clearly set forth in the foregoing provisions, two requisites must concur in order that an employee in the career executive service may attain security of tenure, to wit: a) CES eligibility; and b) Appointment to the appropriate CES rank. In addition, it must be stressed that the security of tenure of employees in the career executive service (except first and secondlevel employees in the civil service), pertains only to rank and not to the office or to the position to which they may be appointed. Thus, a career executive service officer may be transferred or reassigned from one position to another without losing his rank which follows him wherever he is transferred or reassigned. In

fact, a CESO suffers no diminution of salary even if assigned to a CES position with lower salary grade, as he is compensated according to his CES rank and not on the basis of the position or office he occupies.7 In the case at bar, there is no question that respondent Ramon S. Roco, though a CES eligible, does not possess the appropriate CES rank, which is CES rank level V, for the position of Regional Director of the LTO (Region V). Falling short of one of the qualifications that would complete his membership in the CES, respondent cannot successfully interpose violation of security of tenure. Accordingly, he could be validly reassigned to other positions in the career executive service. Thus, in Achacoso v. Macaraig,8 the Court held that: It is settled that a permanent appointment can be issued only "to a person who meet all the requirement for the position to which he is being appointed, including the appropriate eligibility prescribed." Achacoso did not. At best, therefore, his appointment could be regarded only as temporary. And being so, it could be withdrawn at will by the appointing authority and "at a moment's notice," conformably to established jurisprudence. xxx xxx xxx

Chapter I, Article IV, paragraph 5(c), of the Integrated Reorganization Plan "the President may, in exceptional cases, appoint any person who is not a Career Executive Service eligible; provided that such appointee shall subsequently take the required Career Executive Service examination and that he shall not be promoted to a higher class until he qualified in such examination." Evidently, the law allows appointment of those who are not CES eligible, subject to the obtention of said eligibility, in the same manner that the appointment of respondent who does not possess the required CES rank (CES rank level V) for the position of Regional Director of the LTO, is permitted in a temporary capacity.1wphi1.nt WHEREFORE, the petition is GRANTED, and the March 10, 2000 Decision and the June 9, 2000 Resolution of the Court of Appeals in CA-G.R. SP No. 55000, is SET ASIDE. The petition for quo warranto and prohibition filed by respondent is hereby DISMISSED. SO ORDERED. DE LEON vs. CA Hon. Alma G. De Leon Chairman, Hon. Thelma P. Gaminde Commissioner, Civil Service Commission, and Secretary Rafael M. Alunan III, Department of Interior and Local Government, petitioners, vs. Hon. Court of Appeals and Jacob F. Montesa, respondent. CASE: For resolution is private respondents motion for reconsideration of the January 22, 2001 Decision of the Court, which reversed and set aside the Decision of the Court of Appeals and reinstated Resolution of the Civil Service Commission FACTS:

The mere fact that a position belongs to the Career Service does not automatically confer security of tenure on its occupant even if he does not possess the required qualifications. Such right will have to depend on the nature of his appointment, which in turn depends on his eligibility or lack of it. A person who does not have the requisite qualifications for the position cannot be appointed to it in the first place or, as an exception to the rule, may be appointed to it merely in an acting capacity in the absence of appropriate eligibles. The appointment extended to him cannot be regarded as permanent even if it may be so designated. Moreover, under the mobility and flexibility principles9 of the Integrated Reorganization Plan, CES personnel may be reassigned or transferred from one position to another, thus: e. Assignments, Reassignments and Transferees Any provision of law to the contrary notwithstanding, members of the Career Executive Service may be reassigned or transferred from one position to another and from one department, bureau or office to another; provided that such reassignment or transfer is made in the interest of public service and involves no reduction in rank or salary; provided, further, that no member shall be reassigned or transferred oftener than every two years; and provided, furthermore, that if the officer concerned believes that his reassignment or transfer is not justified, he may appeal his case to the President.10 One last point. Respondent capitalizes on the fact that petitioner Luis Mario M. General is not a CES eligible. The absence, However, of such CES eligibility is of no moment. As stated in Part III,

In the decision sought to be reconsidered, the court ruled that private respondents appointment on August 28, 1986, as Ministry Legal Counsel CESO IV of the Ministry of Local Government was temporary. Applying the case of Achacoso v. Macaraig, it was held that since the private respondent was not a Career Executive Service eligible, his appointment did not attain permanency because he did not possess the required CES eligibility for the CES position to which he was appointed to, thus he can be transferred or resigned without violating his right to security of tenure. March 19, 1992 Court issued a Minute Resolution holding that Achacoso v. Macaraig is not applicable to the case of private respondent because there was no Career Executive Service Board during the Freedom Constitution or at the time of appointment of petitioner. Therefore, having met all the requirements for the position to which he was appointed, he cannot be

removed in violation of the constitutional guarantee on security of tenure and due process.

Private respondent contends that the nature of his appointment can no longer be passed upon and controverted in the present case considering that said issue had already been settled in the foregoing Minute Resolution of the Court, as stated in Rule 39, Sec. 47, parC of the Rules of Court. Rule 39, Sec. 47, parC of the Rules of Court once an issue has been adjudicated in a valid judgment of a competent court, it can no longer be controverted anew and should be finally laid to rest.

ISSUE: WON the Court possess any rights to re-examine the case despite what was stated in the Rules of Court? YES RULING/HELD:

The Court is not precluded from re-examining its own ruling and rectifying errors of judgment if blind and stubborn adherence to res judicata would involve the sacrifice of justice to technicality. It must be stressed that this is not the first time that the principle of res judicata has been set aside in favor of substantial justice, which is afterall the avowed purpose of all law and jurisprudence. With regards to the issue of the private respondents designation: A CES eligibility is not a requirement in the case of private respondent, the mobility and flexibility concepts in the assignment of personnel in CES, which allow transfer or reassignment of CES personnel to other CES position without violating his right to security of tenure. WHEREFORE, in view of all the foregoing, the instant motion for reconsideration is DENIED with FINALITY.