Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 91602 February 26, 1991
HONORABLE SIMPLICIO C. GRIO, SIXTO P. DEMAISIP, SANTOS B. AGUADERA, MANUEL
B. TRAVIA and MANUEL M. CASUMPANG, petitioners,
vs.
CIVIL SERVICE COMMISSION, TEOTIMO ARANDELA, CIRILO GELVEZON, TEODULFO DATO-
ON, and NELSON GEDUSPAN, respondents.
Sixto P. Demaisip for petitioners.
Rex C. Muzones for private respondents.
Thelma A. Panganiban-Gaminde, Rogelio C. Limare and Normita M. Llamas-Villanueva for Civil
Service Commission.

GANCAYCO, J .:p
The main issue in this petition is whether or not the position of a provincial attorney and those of his
legal subordinates are primarily confidential in nature so that the services of those holding the said
items can be terminated upon loss of confidence.
The facts of this case are simple.
Petitioner Sixto Demaisip was the first appointed Provincial Attorney of Iloilo. He held this position
from April 3, 1973 up to June 2, 1986 when he offered to resign and his resignation was accepted by
the then Acting Governor. In his resignation letter, petitioner Demaisip recommended the elevation
of respondent Teotimo Arandela from Senior Legal Officer to Provincial Attorney. OIC Governor
Licurgo Tirador later on decided to appoint respondent Arandela as the Provincial Attorney.
Respondent Cirilo Gelvezon, on the other hand, was promoted from Legal Officer II to Senior Legal
Officer. Respondents Teodolfo Dato-on and Nelson Geduspan were appointed to the position of
Legal
Officer II.
On February 2, 1988, petitioner Simplicio Grio assumed office as the newly elected governor of
Iloilo. One month later, he informed respondent Arandela and all the legal officers at the Provincial
Attorney's Office about his decision to terminate their services. In his letter, petitioner Grio made
mention of an article pertaining to the Iloilo office of the Provincial Attorney which appeared in
the Panay News and which "undermined that trust and confidence" that he reposed on them.
Petitioner Demaisip was reappointed by Governor Grio as the Provincial Attorney, The latter, on the
other hand, arranged the replacements of the other legal officers. Respondent Cirilo Gelvezon was
replaced by petitioner Santos Aguadera, respondent Nelson Geduspan was replaced by petitioner
Manuel Casumpang and petitioner Manuel Travia took the place of respondent Teodolfo Dato-on.
On March 15, 1988, petitioner Governor Grio formally terminated the services of the respondents
herein on the ground of loss of trust and confidence. This action taken by the governor was
appealed by respondents to the Merit Systems Protection Board of the Civil Service Commission.
On March 9, 1989, the Merit Systems Board issued an Order declaring the respondents' termination
illegal and ordering that they be immediately restored to their positions with back salaries and other
emoluments due them. This was appealed by petitioner Grio to the Civil Service Commission.
In Resolution No. 89-736 dated October 9, 1989, the Civil Service Commission affirmed the Order of
the Merit Systems Protection Board, and directed that the respondents be restored to their former
legal positions and be paid back salaries and other benefits.
Petitioners filed a Motion for Reconsideration of the above-mentioned Decision of the Civil Service
Commission. The motion was denied on December 7, 1989 in Resolution No. 89-920.
Hence, this petition for review whereby petitioners seek the reversal of Resolution No. 89-736 of the
Civil Service Commission and Resolution No. 89-920 which denied the Motion for Reconsideration.
We shall first discuss whether the position of a provincial attorney is primarily confidential so that the
holder thereof may be terminated upon loss of confidence.
In Cadiente vs. Santos,
1
this Court ruled that the position of a city legal officer is undeniably one which
is primarily confidential in this manner:
In resolving the merits of the instant case, We find as an undeniable fact that the
position of a City Legal Officer is one which is "primarily confidential." This Court held
in the case of Claudio vs. Subido, L-30865, August 31, 1971, 40 SCRA 481, that the
position of a City Legal Officer is one requiring that utmost confidence on the part of
the mayor be extended to said officer. The relationship existing between a lawyer
and his client, whether a private individual or a public officer, is one that depends on
the highest degree of trust that the latter entertains for the counsel selected. As
stated in the case of Pinero vs. Hechanova, L-22562, October 22, 1966, 18 SCRA
417 (citing De los Santos vs. Mallare, 87 Phil. 289), the phrase "primarily
confidential" "denotes not only confidence in the aptitude of the appointee for the
duties of the office but primarily close intimacy which insures freedom of intercourse,
without embarrassment or freedom from misgivings of betrayals of personal trust on
confidential matters of state. (Emphasis supplied.)
The tenure of officials holding primarily confidential positions ends upon loss of
confidence, because their term of office lasts only as long as confidence in them
endure; and thus their cessation involves no removal (Corpus vs. Cuaderno, L-
23721, March 31, 1965, 13 SCRA 591-596). When such confidence is lost and the
officer holding such position is separated from the service, such cessation entails no
removal but an expiration of his term. In the case of Hernandez vs. Villegas, L-
17287, June 30, 1965, 14 SCRA 548, it was held
It is to be understood of course that officials and employees holding primarily
confidential positions continue only for so long as confidence in them endures. The
termination of their official relation can be justified on the ground of loss of
confidence because in that case their cessation from office involves no removal but
merely the expiration of the term of office two different causes for the termination
of official relations recognized in the Law of Public Officers.
In the case at bar, when the respondent City Mayor of Davao terminated the services
of the petitioner, he was not removed or dismissed. There being no removal or
dismissal it could not, therefore, be said that there was a violation of the
constitutional provision that "no officer or employee in the civil service shall be
suspended or dismissed except for cause as provided by law" (Article XII-B, Section
1 (3), 1973 Constitution).
The matter of expiration of a term of an officer holding a primarily confidential
position, as distinguished from a removal or dismissal, was further explained by this
Court, in the case of Ingles vs. Mutuc, L-20390, November 29, 1960, 26 SCRA 171,
in this wise:
When an incumbent of a primarily confidential position holds office at the pleasure of
the appointing power, and the pleasure turns into a displeasure, the incumbent is not
removed or dismissed from office his term merely expires, in much the same way
as an officer, whose right thereto ceases upon expiration of the fixed term for which
he had been appointed or elected, is not and cannot be deemed removed or
dismissed therefrom, upon expiration of said term.
The main difference between the former the primary confidential officer and the
latter is that the latter's term is fixed or definite, whereas that of the former is not pre-
fixed, but indefinite, at the time of his appointment or election, and becomes fixed
and determined when the appointing power expresses its decision to put an end to
the services of the incumbent. When this event takes place, the latter is not removed
or dismissed from office his term merely expired.
The foregoing merely elaborates what this Court, speaking thru Justice J.B.L. Reyes,
stressed in the case Corpus vs. Cuaderno, L-23721, March 31, 1965, 13 SCRA 591.
In said case We stated that:
The tenure of officials holding primarily confidential positions ends upon loss of
confidence, because their term of office lasts only as long as confidence in them
endures, and thus their cessation involves no removal.
2

In Besa vs. Philippine National Bank,
3
where petitioner, who was the Chief Legal Counsel with the rank
of Vice President of the respondent Philippine National Bank, questioned his being transferred to the
position of Consultant on Legal Matters in the Office of President, this Court, considering said position to
be primarily confidential held
It cannot be denied of course that the work of the Chief Legal Counsel of respondent
Bank, as of any lawyer for that matter, is impressed with a highly technical aspect. As
had been pointed out, however, it does not mean that thereby a client is precluded
from substituting in his stead another practitioner. That is his right; Ms decision to
terminate the relationship once made is impressed with the attribute of finality. The
lawyer cannot be heard to complain; it is enough that his right to compensation
earned be duly respected.
In that sense, it is equally clear that where the position partakes of the attributes of
being both technical and confidential, there can be no insistence of a fixed or a
definite term if the latter aspect predominates. To paraphrase the language of the
Chief Justice in the opinion previously cited, the incumbent of a primarily confidential
position, as was the case of petitioner, should realize that at any time the appointing
power may decide that his services are no longer needed. As thus correctly viewed,
Corpus v. Cuaderno cannot be read as lending support to petitioner's efforts to retain
his position as Chief Legal Counsel of respondent Bank, contrary to its wishes as so
explicitly declared in its Resolution No. 1053.
The question now is should the ruling in Cadiente be made applicable to a provincial attorney?
According to the petitioners, Cadiente must be applied because by the nature of the functions of a
provincial attorney and a city legal officer, their positions are both primarily confidential.
Respondents, on the other hand, maintain that since the Civil Service Commission has already
classified the position of private respondent Arandela as a career position and certified the same as
permanent, he is removable only for cause, and therefore Cadiente is not applicable.
We agree with the petitioners and answer the question earlier propounded in the affirmative. A city
legal officer appointed by a city mayor to work for and in behalf of the city has for its counterpart in
the province a provincial attorney appointed by the provincial governor. In the same vein, a
municipality may have a municipal attorney who is to be named by the appointing power. The
positions of city legal officer and provincial attorney were created under Republic Act No. 5185 which
categorized them together as positions of "trust", to wit:
Sec. 19. Creation of positions of Provincial Attorney and City Legal officer. To
enable the provincial and city governments to avail themselves of the full time
and trusted services of legal officers, the positions of provincial attorney and city
legal officer may be created and such officials shall be appointed in such manner as
is provided for under Section four of this Act. For this purpose the functions hitherto
performed by the provincial and city fiscals in serving as legal adviser and legal
officer for civil cases of the province and city shall be transferred to the provincial
attorney and city legal officer, respectively. (Emphasis supplied.)
4

By virtue of Republic Act No. 5185, both the provincial attorney and city legal officer serve as
the legal adviser and legal officer for the civil cases of the province and the city that they
work for. Their services are precisely categorized by law to be "trusted services."
A comparison of the functions, powers and duties of a city legal officer as provided in the Local
Government Code with those of the provincial attorney of Iloilo would reveal the close similarity of
the two positions. Said functions clearly reflect the highly confidential nature of the two offices and
the need for a relationship based on trust between the officer and the head of the local government
unit he serves. The "trusted services" to be rendered by the officer would mean such trusted
services of a lawyer to his client which is of the highest degree of trust.
5

The fact that the position of respondent Arandela as provincial attorney has already been classified
as one under the career service and certified as permanent by the Civil Service Commission cannot
conceal or alter its highly confidential nature. As in Cadiente where the position of the city legal
officer was duly attested as permanent by the Civil Service Commission before this Court declared
that the same was primarily confidential, this Court holds that the position of respondent Arandela as
the provincial attorney of Iloilo is also a primarily confidential position. To rule otherwise would be
tantamount to classifying two positions with the same nature and functions in two incompatible
categories. This being the case, and following the principle that the tenure of an official holding a
primarily confidential position ends upon loss of confidence,
6
the Court finds that private respondent
Arandela was not dismissed or removed from office when his services were terminated. His term merely
expired.
The attorney-client relationship is strictly personal because it involves mutual trust and confidence of
the highest degree, irrespective of whether the client is a private person or a government
functionary.
7
The personal character of the relationship prohibits its delegation in favor of another
attorney without the client's consent.
8

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

It is therefore possible to distinguish positions in the civil service where lawyers act as counsel in
confidential and non-confidential positions by simply looking at the proximity of the position in
question in relation to that of the appointing authority. Occupants of such positions would be
considered confidential employees if the predominant reason they were chosen by the appointing
authority is the latter's belief that he can share a close intimate relationship with the occupant which
measures freedom of discussion, without fear of embarrassment or misgivings of possible betrayal
of personal trust on confidential matters of state.
11

This implies that positions in the civil service of such nature would be limited to those not separated
from the position of the appointing authority by an intervening public officer, or series of public
officers, in the bureaucratic hierarchy. This is an additional reason why the positions of "City Legal
Officer" and "Private Secretary to the President" were considered primarily confidential by the
Court.
12
On the other hand, a customs policeman serving in the Harbor Patrol, in relation to the
Commissioner of Customs, and an executive assistant, stenographer, or clerk in the Office of the
President, were not considered so by the Court.
13

There is no need to extend the professional relationship to the legal staff which assists the
confidential employer above described. Since the positions occupied by these subordinates are
remote from that of the appointing authority, the element of trust between them is no longer
predominant. The importance of these subordinates to the appointing authority now lies in the
contribution of their legal skills to facilitate the work of the confidential employee. At this level of the
bureaucracy, any impairment of the appointing authority's interest as a client, which may be caused
through the breach of residual trust by any of these lower-ranked lawyers, can be anticipated and
prevented by the confidential employee, as a reasonably competent office head, through the
exercise of his power to "review, approve, reverse, or modify" their acts and decisions.
14
At this level,
the client can be protected without need of imposing upon the lower-ranked lawyers the fiduciary duties
inherent in the attorney-client relationship. Hence, there is now no obstacle to giving full effect to the
security of tenure principle to these members of the civil service.
Thus, with respect to the legal assistants or subordinates of the provincial attorney namely, Cirilo
Gelvezon, Teodolfo Dato-on and Nelson Geduspan, the Cadiente and Besa rulings cannot apply. To
recall, said cases specifically dealt with the positions of city legal officer of the city and chief legal
counsel of the PNB. There was no reference to their legal staff or subordinates. As head of their
respective departments, the city legal officer, the provincial attorney or the PNB chief legal counsel
cannot be likened to their subordinates. The latter have been employed due to their technical
qualifications. Their positions are highly technical in character and not confidential, so they are
permanent employees, and they belong to the category of classified employees under the Civil
Service Law. Thus, the items of Senior Legal Officer and Legal Officer II remain permanent as
classified by the Civil Service Commission. Consequently, the holders of the said items, being
permanent employees, enjoy security of tenure as guaranteed under the Constitution.
This notwithstanding, petitioners contend that respondents are estopped from protesting the
termination of their services because of their actions which, if taken together, would allegedly reveal
that they have accepted their termination, such as: applying for clearances, not remaining in office
and signing their payroll for March 15, 1988 acknowledging therein that their appointment
"terminated/expired."
We cannot agree with petitioners in this regard. The respondents did the above-mentioned acts
because their services were actually dispensed with by petitioner Governor Grio. As a
consequence of their termination, they could not remain in office and as required of any government
employee who is separated from the government service, they had to apply for clearances.
However, this did not mean that they believed in principle that they were validly terminated. The
same should not prevent them from later on questioning the validity of said termination.
The facts clearly show that respondents protested their termination with the Civil Service
Commission within a month from the time of their termination. The Court holds that the said protest
was filed within a reasonable period of time.
WHEREFORE, and in view of the foregoing, the petition is GRANTED with respect to the position of
provincial attorney of Iloilo. Respondent Teotimo Arandela is hereby ordered to vacate said position
upon the finality of this Decision. The Decision of the respondent Civil Service Commission
pertaining to respondents Cirilo Gelvezon, Teodolfo Dato-on and Nelson Geduspan is hereby
AFFIRMED.
SO ORDERED.











Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 173264 February 22, 2008
CIVIL SERVICE COMMISSION, petitioner,
vs.
NITA P. JAVIER, respondent.
D E C I S I O N
AUSTRIA-MARTINEZ, J .:
Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, seeking to
reverse the Decision
1
of the Court of Appeals (CA) dated September 29, 2005, as well as its Resolution of
June 5, 2006, in CA-G.R. SP No. 88568, which set aside the resolutions and orders of the Civil Service
Commission (CSC) invalidating the appointment of respondent as Corporate Secretary of the Board of
Trustees of the Government Service and Insurance System (GSIS).
The facts are undisputed.
According to her service record,
2
respondent was first employed as Private Secretary in the GSIS, a
government owned and controlled corporation (GOCC), on February 23, 1960, on a "confidential" status.
On July 1, 1962, respondent was promoted to Tabulating Equipment Operator with "permanent" status.
The "permanent" status stayed with respondent throughout her career. She spent her entire career with
GSIS, earning several more promotions, until on December 16, 1986, she was appointed Corporate
Secretary of the Board of Trustees of the corporation.
On July 16, 2001, a month shy of her 64
th
birthday,
3
respondent opted for early retirement and received
the corresponding monetary benefits.
4

On April 3, 2002, GSIS President Winston F. Garcia, with the approval of the Board of Trustees,
reappointed respondent as Corporate Secretary, the same position she left and retired from barely a year
earlier. Respondent was 64 years old at the time of her reappointment.
5
In its Resolution, the Board of
Trustees classified her appointment as "confidential in nature and the tenure of office is at the pleasure of
the Board."
6

Petitioner alleges that respondent's reappointment on confidential status was meant to illegally extend her
service and circumvent the laws on compulsory retirement.
7
This is because under Republic Act (R.A.)
No. 8291, or the Government Service Insurance System Act of 1997, the compulsory retirement age for
government employees is 65 years, thus:
Sec. 13. x x x
(b) Unless the service is extended by appropriate authorities, retirement shall be compulsory
for an employee at sixty-five (65) years of age with at least fifteen (15) years of service:
Provided, That if he has less than fifteen (15) years of service, he may be allowed to
continue in the service in accordance with existing civil service rules and regulations.
Under the civil service regulations, those who are in primarily confidential positions may serve even
beyond the age of 65 years. Rule XIII of the Revised Omnibus Rules on Appointments and Other
Personnel Actions, as amended, provides that:
Sec. 12. (a) No person who has reached the compulsory retirement age of 65 years can be
appointed to any position in the government, subject only to the exception provided under
sub-section (b) hereof.
x x x x
b. A person who has already reached the compulsory retirement age of 65 can still be
appointed to a coterminous/primarily confidential position in the government.
A person appointed to a coterminous/primarily confidential position who reaches the age of
65 is considered automatically extended in the service until the expiry date of his/her
appointment or until his/her services are earlier terminated.
8

It is for these obvious reasons that respondent's appointment was characterized as "confidential" by the
GSIS.
On October 10, 2002, petitioner issued Resolution No. 021314, invalidating the reappointment of
respondent as Corporate Secretary, on the ground that the
position is a permanent, career position and not primarily confidential.
9

On November 2, 2002, the CSC, in a letter of even date, through its Chairperson Karina Constantino-
David, informed GSIS of CSC's invalidation of respondent's appointment, stating, thus:
Records show that Ms. Javier was formerly appointed as Corporate Secretary in a
"Permanent" capacity until her retirement in July 16, 2001. The Plantilla of Positions shows
that said position is a career position. However, she was re-employed as Corporate
Secretary, a position now declared as confidential by the Board of Trustees pursuant to
Board Resolution No. 94 dated April 3, 2002.
Since the position was not declared primarily confidential by the Civil Service Commission or
by any law, the appointment of Ms. Javier as Corporate Secretary is hereby invalidated.
10

Respondent and GSIS sought to reconsider the ruling of petitioner. CSC replied that the position of
Corporate Secretary is a permanent (career) position, and not primarily confidential (non-career); thus, it
was wrong to appoint respondent to this position since she no longer complies with eligibility
requirements for a permanent career status. More importantly, as respondent by then has reached
compulsory retirement at age 65, respondent was no longer qualified for a permanent career
position.
11
With the denial of respondent's plea for reconsideration, she filed a Petition for Review with the
Court of Appeals.
On September 29, 2005, the CA rendered a Decision setting aside the resolution of petitioner invalidating
respondent's appointment.
12
The CA ruled that in determining whether a position is primarily confidential
or otherwise, the nature of its functions, duties and responsibilities must be looked into, and not just its
formal classification.
13
Examining the functions, duties and responsibilities of the GSIS Corporate
Secretary, the CA concluded that indeed, such a position is primarily confidential in nature.
Petitioner filed a motion for reconsideration, which was denied by the CA on June 5, 2006.
Hence, herein petition.
The petition assails the CA Decision, contending that the position of Corporate Secretary is a career
position and not primarily confidential in nature.
14
Further, it adds that the power to declare whether any
position in government is primarily confidential, highly technical or policy determining rests solely in
petitioner by virtue of its constitutional power as the central personnel agency of the government.
15

Respondent avers otherwise, maintaining that the position of Corporate Secretary is confidential in nature
and that it is within the powers of the GSIS Board of Trustees to declare it so.
16
She argues that in
determining the proper classification of a position, one should be guided by the nature of the office or
position, and not by its formal designation.
17

Thus, the Court is confronted with the following issues: whether the courts may determine the proper
classification of a position in government; and whether the position of corporate secretary in a GOCC is
primarily confidential in nature.
The Court's Ruling
The courts may determine the proper
classification of a position in government.
Under Executive Order No. 292, or the Administrative Code of 1987, civil service positions are currently
classified into either 1) career service and 2) non-career service positions.
18

Career positions are 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.
19

In addition, the Administrative Code, under its Book V, sub-classifies career positions according to
"appointment status," divided into: 1) permanent - which is issued to a person who meets all the
requirements for the positions to which he is being appointed, including the appropriate eligibility
prescribed, in accordance with the provisions of law, rules and standards promulgated in pursuance
thereof; and 2) temporary - which is issued, in the absence of appropriate eligibles and when it becomes
necessary in the public interest to fill a vacancy, to a person who meets all the requirements for the
position to which he is being appointed except the appropriate civil service eligibility; provided, that such
temporary appointment shall not exceed twelve months, and the appointee may be replaced sooner if a
qualified civil service eligible becomes available.
20

Positions that do not fall under the career service are considered non-career positions, which are
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 orsubject to his pleasure, or which is
limited to the duration of a particular project for which purpose employment was made.
21

Examples of positions in the non-career service enumerated in the Administrative Code are:
Sec. 9. Non-Career Service. - x x x
The Non-Career Service shall include:
(1) Elective officials and their personal or confidential staff;
(2) Secretaries and other officials of Cabinet rank who hold their 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 direction and supervision from the hiring agency;
and
(5) Emergency and seasonal personnel. (Emphasis supplied)
A strict reading of the law reveals that primarily confidential positions fall under the non-career service. It
is also clear that, unlike career positions, primarily confidential and other non-career positions do not have
security of tenure. The tenure of a confidential employee is co-terminous with that of the appointing
authority, or is at the latter's pleasure. However, the confidential employee may be appointed or remain in
the position even beyond the compulsory retirement age of 65 years.
22

Stated differently, the instant petition raises the question of whether the position of corporate secretary in
a GOCC, currently classified by the CSC as belonging to the permanent, career service, should be
classified as primarily confidential, i.e., belonging to the non-career service. The current GSIS Board
holds the affirmative view, which is ardently opposed by petitioner. Petitioner maintains that it alone can
classify government positions, and that the determination it made earlier, classifying the position of
GOCC corporate secretary as a permanent, career position, should be maintained.
At present, there is no law enacted by the legislature that defines or sets definite criteria for determining
primarily confidential positions in the civil service. Neither is there a law that gives an enumeration of
positions classified as primarily confidential.
What is available is only petitioner's own classification of civil service positions, as well as jurisprudence
which describe or give examples of confidential positions in government.
Thus, the corollary issue arises: should the Court be bound by a classification of a position as confidential
already made by an agency or branch of government?
Jurisprudence establishes that the Court is not bound by the classification of positions in the civil service
made by the legislative or executive branches, or even by a constitutional body like the petitioner.
23
The
Court is expected to make its own determination as to the nature of a particular position, such as whether
it is a primarily confidential position or not, without being bound by prior classifications made by other
bodies.
24
The findings of the other branches of government are merely considered initial and not
conclusive to the Court.
25
Moreover, it is well-established that in case the findings of various agencies of
government, such as the petitioner and the CA in the instant case, are in conflict, the Court must exercise
its constitutional role as final arbiter of all justiciable controversies and disputes.
26

Piero v. Hechanova,
27
interpreting R.A. No. 2260, or the Civil Service Act of 1959, emphasized how the
legislature refrained from declaring which positions in the bureaucracy are primarily confidential, policy
determining or highly technical in nature, and declared that such a determination is better left to the
judgment of the courts. The Court, with the ponenciaof Justice J.B.L. Reyes, expounded, thus:
The change from the original wording of the bill (expressly declared by law x x x to be policy
determining, 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 of 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, policy determining 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, x x x 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.
"I remember a case that has been decided by the Supreme Court involving the
position of a district engineer in Baguio, and there. precisely, the nature of the
position was in issue. It was the Supreme Court that passed upon the nature of the
position, and held that the President could not transfer the district engineer in Baguio
against his consent."
Senator Taada, therefore, proposed an amendment to section 5 of the bill, deleting the
words "to be" and inserting in lieu thereof the words "Positions which are by their nature"
policy determining, etc., and deleting the last words "in nature". Subsequently, Senator
Padilla presented an amendment to the Taada amendment by adopting the very words of
the Constitution, i.e., "those which are policy determining, primarily confidential and highly
technical in nature". The Padilla amendment was adopted, and it was this last wording with
which section 5 was passed and was enacted (Senate Journal, May 10, 1959, Vol. 11, No.
32, pp. 679-681).
It is plain that, at least since the enactment of the 1959 Civil Service Act (R. A. 2260), it is
the nature of the position which finally determines whether a position is primarily
confidential, policy determining or highly technical. Executive pronouncements can
be no more than initial determinations that are not conclusive in case of conflict. And it
must be so, or else it would then lie within the discretion of title Chief Executive to deny to
any officer, by executive fiat, the protection of section 4, Article XII, of the
Constitution.
28
(Emphasis and underscoring supplied)
This doctrine in Piero was reiterated in several succeeding cases.
29

Presently, it is still the rule that executive and legislative identification or classification of primarily
confidential, policy-determining or highly technical positions in government is no more than mere
declarations, and does not foreclose judicial review, especially in the event of conflict. Far from what is
merely declared by executive or legislative fiat, it is the nature of the position which finally determines
whether it is primarily confidential, policy determining or highly technical, and no department in
government is better qualified to make such an ultimate finding than the judicial branch.
Judicial review was also extended to determinations made by petitioner. In Grio v. Civil Service
Commission,
30
the Court held:
The fact that the position of respondent Arandela as provincial attorney has already been
classified as one under the career service and certified as permanent by the Civil Service
Commission cannot conceal or alter its highly confidential nature. As in Cadiente where the
position of the city legal officer was duly attested as permanent by the Civil Service
Commission before this Court declared that the same was primarily confidential, this Court
holds that the position of respondent Arandela as the provincial attorney of Iloilo is also a
primarily confidential position. To rule otherwise would be tantamount to classifying two
positions with the same nature and functions in two incompatible categories.
31

The framers of the 1987 Constitution were of the same disposition. Section 2 (2) Article IX (B) of the
Constitution provides that:
Appointments in the civil service shall be made only according to merit and fitness to be
determined, as far as practicable, and, except to positions which are policy-determining,
primarily confidential, or highly technical, by competitive examination.
The phrase "in nature" after the phrase "policy-determining, primarily confidential, or highly technical" was
deleted from the 1987 Constitution.
32
However, the intent to lay in the courts the power to determine the
nature of a position is evident in the following deliberation:
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 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.
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 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.
33
(Emphasis supplied)
This explicit intent of the framers was recognized in Civil Service Commission v. Salas,
34
and Philippine
Amusement and Gaming Corporation v. Rilloraza,
35
which leave no doubt that the question of whether the
position of Corporate Secretary of GSIS is confidential in nature may be determined by the Court.
The position of corporate secretary in a government owned
and controlled corporation, currently classified as a permanent
career position, is primarily confidential in nature.
First, there is a need to examine how the term "primarily confidential in nature" is described
in jurisprudence. According to Salas,
36

Prior to the passage of the x x x Civil Service Act of 1959 (R.A. No. 2260), 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.
37
(Emphasis supplied)
However, Salas declared that since the enactment of R.A. No. 2260 and Piero,
38
it is the nature of the
position which finally determines whether a position is primarily confidential or not, without regard to
existing executive or legislative pronouncements either way, since the latter will not bind the courts in
case of conflict.
A position that is primarily confidential in nature is defined as early as 1950 in De los Santos v.
Mallare,
39
through theponencia of Justice Pedro Tuason, to wit:
x x x These positions (policy-determining, primarily confidential and highly technical
positions), involve the highest degree of confidence, or are closely bound up with and
dependent on other positions to which they are subordinate, or are temporary in nature. It
may truly be said that the good of the service itself demands that appointments coming
under this category be terminable at the will of the officer that makes them.
x x x x
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 insures freedom of [discussion, delegation
and reporting] without embarrassment or freedom from misgivings of betrayals of
personal trust or confidential matters of state. x x x
40
(Emphasis supplied)
Since the definition in De los Santos came out, it has guided numerous other cases.
41
Thus, it still stands
that a position is primarily confidential 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.
In classifying a position as primarily confidential, its functions must not be routinary, ordinary and day to
day in character.
42
A position is not necessarily confidential though the one in office may sometimes
handle confidential matters or documents.
43
Only ordinary confidence is required for all positions in the
bureaucracy. But, as held in De los Santos,[44]for someone holding a primarily confidential position, more
than ordinary confidence is required.
In Ingles v. Mutuc,
45
the Court, through Chief Justice Roberto Concepcion as ponente, stated:
Indeed, physicians handle confidential matters. Judges, fiscals and court stenographers
generally handle matters of similar nature. The Presiding and Associate Justices of the Court
of Appeals sometimes investigate, by designation of the Supreme Court, administrative
complaints against judges of first instance, which are confidential in nature. Officers of the
Department of Justice, likewise, investigate charges against municipal judges. Assistant
Solicitors in the Office of the Solicitor General often investigate malpractice charges against
members of the Bar. All of these are "confidential" matters, but such fact does not
warrant the conclusion that the office or position of all government physicians and all
Judges, as well as the aforementioned assistant solicitors and officers of the
Department of Justice are primarily confidential in character.
46
(Emphasis supplied)
It is from De los Santos that the so-called "proximity rule" was derived. A position is considered to be
primarily confidential when there is a primarily close intimacy between the appointing authority and the
appointee, which ensures the highest degree of trust and unfettered communication and discussion on
the most confidential of matters.
47
This means that where the position occupied is already remote from
that of the appointing authority, the element of trust between them is no longer predominant.
48
On further
interpretation in Grio, this was clarified to mean that a confidential nature would be limited to those
positions not separated from the position of the appointing authority by an intervening public officer, or
series of public officers, in the bureaucratic hierarchy.
49

Consequently, brought upon by their remoteness to the position of the appointing authority, the following
were declared by the Court to be not primarily confidential positions: City Engineer;
50
Assistant Secretary
to the Mayor;
51
members of the Customs Police Force or Port Patrol;
52
Special Assistant of the Governor
of the Central Bank, Export Department;
53
Senior Executive Assistant, Clerk I and Supervising Clerk I and
Stenographer in the Office of the President;
54
Management and Audit Analyst I of the Finance Ministry
Intelligence Bureau;
55
Provincial Administrator;
56
Internal Security Staff of the Philippine Amusement and
Gaming Corporation (PAGCOR);
57
Casino Operations Manager;
58
and Slot Machine Attendant.
59
All
positions were declared to be not primarily confidential despite having been previously declared such
either by their respective appointing authorities or the legislature.
The following were declared in jurisprudence to be primarily confidential positions: Chief Legal Counsel of
the Philippine National Bank;
60
Confidential Agent of the Office of the Auditor, GSIS;
61
Secretary of
the Sangguniang Bayan;
62
Secretary to the City Mayor;
63
Senior Security and Security Guard in the Office
of the Vice Mayor;
64
Secretary to the Board of a government corporation;
65
City Legal Counsel, City Legal
Officer or City Attorney;
66
Provincial Attorney;
67
Private Secretary;
68
and Board Secretary II of the
Philippine State College of Aeronautics.
69

In fine, a primarily confidential position is characterized by the close proximity of the positions of the
appointer and appointee as well as the high degree of trust and confidence inherent in their relationship.
Ineluctably therefore, the position of Corporate Secretary of GSIS, or any GOCC, for that matter, is a
primarily confidential position. The position is clearly in close proximity and intimacy with the appointing
power. It also calls for the highest degree of confidence between the appointer and appointee.
In classifying the position of Corporate Secretary of GSIS as primarily
confidential, the Court took into consideration the proximity rule together with the duties of the corporate
secretary, enumerated as follows:
70

1. Performs all duties, and exercises the power, as defined and enumerated in Section 4,
Title IX, P.D. No. 1146;
2. Undertakes research into past Board resolutions, policies, decisions, directives and other
Board action, and relate these to present matters under Board consideration;
3. Analyzes and evaluates the impact, effects and relevance of matters under Board
consideration on existing Board policies and provide the individual Board members with
these information so as to guide or enlighten them in their Board decision;
4. Records, documents and reproduces in sufficient number all proceedings of Board
meetings and disseminate relevant Board decisions/information to those units concerned;
5. Coordinates with all functional areas and units concerned and monitors the manner of
implementation of approved Board resolutions, policies and directives;
6. Maintains a permanent, complete, systematic and secure compilation of all previous
minutes of Board meetings, together with all their supporting documents;
7. Attends, testifies and produces in Court or in administrative bodies duly certified copies of
Board resolutions, whenever required;
8. Undertakes the necessary physical preparations for scheduled Board meetings;
9. Pays honoraria of the members of the Board who attend Board meetings;
10. Takes custody of the corporate seal and safeguards against unauthorized use; and
11. Performs such other functions as the Board may direct and/or require.
The nature of the duties and functions attached to the position points to its highly confidential
character.
71
The secretary reports directly to the board of directors, without an intervening officer in
between them.
72
In such an arrangement, the board expects from the secretary nothing less than the
highest degree of honesty, integrity and loyalty, which is crucial to maintaining between them "freedom of
intercourse without embarrassment or freedom from misgivings or betrayals of personal trust or
confidential matters of state."
73

The responsibilities of the corporate secretary are not merely clerical or routinary in nature. The work
involves constant exposure to sensitive policy matters and confidential deliberations that are not always
open to the public, as unscrupulous persons may use them to harm the corporation. Board members
must have the highest confidence in the secretary to ensure that their honest sentiments are always and
fully expressed, in the interest of the corporation. In this respect, the nature of the corporate secretary's
work is akin to that of a personal secretary of a public official, a position long recognized to be primarily
confidential in nature.
74
The only distinction is that the corporate secretary is secretary to the entire board,
composed of a number of persons, but who essentially act as one body, while the private secretary works
for only one person. However, the degree of confidence involved is essentially the same.
Not only do the tasks listed point to sensitive and confidential acts that the corporate secretary must
perform, they also include "such other functions as the Board may direct and/or require," a clear indication
of a closely intimate relationship that exists between the secretary and the board. In such a highly
acquainted relation, great trust and confidence between appointer and appointee is required.
The loss of such trust or confidence could easily result in the board's termination of the secretary's
services and ending of his term. This is understandably justified, as the board could not be expected to
function freely with a suspicious officer in its midst. It is for these same reasons that jurisprudence, as
earlier cited, has consistently characterized personal or private secretaries, and board secretaries, as
positions of a primarily confidential nature.
75

The CA did not err in declaring that the position of Corporate Secretary of GSIS is primarily confidential in
nature and does not belong to the career service.
The Court is aware that this decision has repercussions on the tenure of other corporate secretaries in
various GOCCs. The officers likely assumed their positions on permanent career status, expecting
protection for their tenure and appointments, but are now re-classified as primarily confidential
appointees. Such concern is unfounded, however, since the statutes themselves do not classify the
position of corporate secretary as permanent and career in nature. Moreover, there is no absolute
guarantee that it will not be classified as confidential when a dispute arises. As earlier stated, the Court,
by legal tradition, has the power to make a final determination as to which positions in government are
primarily confidential or otherwise. In the light of the instant controversy, the Court's view is that the
greater public interest is served if the position of a corporate secretary is classified as primarily
confidential in nature.
Moreover, it is a basic tenet in the country's constitutional system that "public office is a public
trust,"
76
and that there is no vested right in public office, nor an absolute right to hold office.
77
No
proprietary title attaches to a public office, as public service is not a property right.
78
Excepting
constitutional offices which provide for special immunity as regards salary and tenure, no one can
be said to have any vested right in an office.
79
The rule is that offices in government, except those
created by the constitution, may be abolished, altered, or created anytime by statute.
80
And any issues on
the classification for a position in government may be brought to and determined by the courts.
81

WHEREFORE, premises considered, the Petition is DENIED. The Decision of the Court of Appeals dated
September 29, 2005, in CA-G.R. SP No. 88568, as well as its Resolution of June 5, 2006 are
hereby AFFIRMED in toto.
No costs.
SO ORDERED.

Republic of the Philippines
Supreme Court
Manila


THIRD DIVISION


VILMA E. ROMAGOS, G.R. No. 156100
Petitioner,
Present:

YNARES-SANTIAGO, J.,
- versus - Chairperson,
AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
NACHURA, and
METRO CEBU WATER DISTRICT, REYES, JJ.
EDITHA D. LUZANO and
DULCE M. ABANILLA, Promulgated:
Respondents. September 12, 2007
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x


D E C I S I O N


AUSTRIA-MARTINEZ, J .:


Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the
July 5, 2002 Decision
[1]
of the Court of Appeals (CA) which dismissed the appeal
[2]
from Resolutions No.
010713
[3]
and No. 011222
[4]
of the Civil Service Commission (CSC); and the October 29, 2002 CA
Resolution
[5]
which denied the motion for reconsideration.

The antecedent facts are summarized as follows:
Metro Cebu Water District (MCWD) employed Vilma E. Romagos (Romagos) as Clerk-Processor
B. On August 9, 1999, MCWD barred Romagos from entering the work premises unless she undergoes
psychiatric treatment and is certified by her doctor to be mentally fit to work.
[6]
Thereafter, in a letter
dated December 1, 1999,
[7]
MCWD informed Romagos that, effective January 1, 2000, she was being
dropped from the rolls for mental incapacity as shown by the following evidence:

First, the incident reports submitted by MCWD
employees Samuela M. Suan,
[8]
Editha Luzano
[9]
and Jocelyn Lebumfacil
[10]
stating that,
during office hours on January 25, 1999, Romagos suddenly and without provocation
began rambling loudly and incoherently, causing alarm and anxiety among office visitors
and employees;

Second, the incident report issued by Jocelyn Lebumfacil
[11]
stating that, during
the August 4, 1999 HRD staff meeting, Romagos suddenly and without provocation
began rambling loudly and incoherently, thereby disrupting the meeting and causing
unease among the staff; and

Third, the November 18, 1989 Certification issued by Dr. Augustus
B. Costas that Romagos is suffering from Major Depression;
[12]
and the January 11, 1991
Certification of Dr. Renato D. Obra that Romagos is under treatment for Major
Depression.
[13]


MCWD also cited Romagos irregular attendance.
[14]


Romagos filed with the CSC Regional Office (CSCRO) a Complaint-Appeal,
[15]
questioning the
procedure and factual basis of her dismissal. The CSCRO dismissed the appeal in its Decision dated
June 23, 2000,
[16]
holding that the evidence cited by MCWD in its December 1, 1999 letter, as well as new
evidence presented by MCWD General Manager Dulce M. Abanilla (Abanilla), established
that Romagos was mentally incapacitated, thus:

Furthermore, there are other additional evidence submitted by General
Manager Abanilla showing that there were incidents which happened after August 20,
1999 involving Ms. Romagos where the latter was observed to again utter incoherent
words and become hysterical. A narration of the incidents which happened on
September 6 and 7, 1999 are contained in the affidavits executed by
Ms. Diosdada Faelnar and Atty. Vesmindo M. Santiago, the Chief of the Medical and
Dental Services and the Asst. General Manager for Administration, respectively. Even as
of December 1999, Ms. Romagos mental problems were still observed by the OIC of the
HRD, per the Inter-Office Memorandum dated December 21, 1999, with the latter even
going to the extent of asking for the assistance of the security guards out of fear on what
the appellant might do.

Moreover, we note the different letters and reports/studies/ researches penned by
the appellant clearly manifesting her mental disorder. Her report to General
Manager Abanilla dated December 27 and 29, 1999 are incomprehensible, incoherent,
muddled and so disorganized that we cant help but conclude that indeed appellant is not
in her right frame of mind. This observa[tion] also holds true when we examine and
read the papers and letters written and prepared by the appellant dated August 6, 10, 30,
1999 and January 28, 1994.

x x x x

All of these foregoing discussion would clearly prove that appellant is really
suffering from some form of mental disorder and, as a natural consequence, she is
incapable of discharging her functions x x x.
[17]


In her motion for reconsideration, Romagos questioned the CSCRO for giving weight to new
evidence regarding her alleged abnormal behavior in September and December 1999, even when
MCWD neither cited said evidence in its December 1, 1999 letter nor disclosed them to her at any time
thereafter.
[18]


The CSCRO denied the motion for reconsideration in a Decision dated July 26, 2000.
[19]


Romagos appealed
[20]
to the CSC which issued Resolution No. 01-0713 dated March 29, 2001,
affirming the CSCRO decisions, to wit:

As culled from the records, several incidents (as evidenced by the reports
submitted by several officials and employees) occurred showing the abnormal behavior
of the appellant, two (2) of which are, as follows:

1. Incident Report dated January 25, 1999 of Mrs. Samuela M. Susan,
Senior Industrial Relations Development Officer A, the pertinent portion
of which states, I was stunned when the next thing I knew, she was
already behind me at a very close range and bombarded me with
insensible statements. I remained silent and intentionally observed what
would be her next move while she was at the height of her outburst of
deep seated anger and suspicion. She addressed to me all her
sentiments telling me about corruption, illegal practices, unfair practices
in a loud, emotionally charged voice.

2. Inter-Office Memorandum dated January 25, 1999
of Editha D. Luzano, Officer-in-Charge of the Human Resources
Department of the said agency, to wit, On January 25, 1999,
Ms. Vilma Romagos behavior became unstable again. She began
talking to herself and then started scolding other people in the HRD
office. Her actions caused anxieties to the other employees, thus
disturbing their work. Since December 1998, she has been behaving like
this.

Hence, the continuous abnormal behavior of Romagos cannot be denied. The
Commission is convinced that the dropping of the appellant from the rolls is justified.

On the issue of due process, the Commission is not convinced that the right
of Romagos to due process was violated. As specifically provided in Section 2, Rule XII
of the Rules abovementioned, notice shall be given to the employee containing a brief
statement of the nature of his incapacity to work, and moreover, the said notice of
separation shall be signed by the appointing authority or head of office. A perusal of the
Notice dated December 1, 1999, sent to Romagos reveals that these requirements were
strictly followed.
[21]


Her motion for reconsideration was denied by the CSC in Resolution No. 011222
[22]
dated July
18, 2001.

In a petition for review
[23]
with the CA, Romagos questioned the CSC Resolutions for insufficiency
of evidence and lack of due process. The CA issued the July 5, 2002 Decision assailed herein,
the dispositive portion of which reads:

WHEREFORE, finding the instant petition not impressed with merit, the same is
hereby DENIED DUE COURSE. Costs against petitioner.

SO ORDERED.
[24]


Romagos filed a motion for reconsideration but the CA denied the same in the
questioned October 29, 2002 Resolution.

Hence, the present Petition, raising the following issues:

i. Whether or not the Honorable Court of Appeals gravely abused its discretion
in failing to squarely rule upon an issue raised in the petition for review;

ii. Whether or not the Honorable Court of Appeals gravely abused its discretion
in lightly adopting the findings of fact of the Honorable Civil Service Commission Regional
Office without the documents and evidence, which were the very basis of
thelatters findings, brought before it for studied appreciation;
iii. Whether or not the Honorable Court of Appeals gravely abused its discretion
in adopting the findings of the Honorable Civil Service Commission Regional Office which
findings were based on evidence not disclosed to the petitioner, in violation of her right to
administrative due process;

iv. Whether or not the Honorable Court of Appeals gravely abused its discretion
in sustaining the petitioners dropping from the rolls when there is no shred of proof of the
alleged abnormal behavior manifested in continuing incapacity to work;

v. Whether or not the Honorable Court of Appeals gravely abused its discretion
in affirming the petitioners dropping from the rolls when the requirement of the rules are
not complied with;

vi. Whether or not the Honorable Court of Appeals and the Honorable
Commission gravely abused their discretion in holding that no prior notice or opportunity
to contest the alleged unauthorized absences, so included as ground in Ms. Romagos
separation letter, is required by law;

vii. Whether or not the Honorable Court of Appeals gravely abused its discretion
in not finding any bad faith on the part of Editha D. Luzon and Dulce M. Abanilla when
adequate evidence points to the contrary.
[25]


The foregoing issues actually boil down to the question: whether the CA correctly held that there
was proper procedure and substantial basis for MCWD (respondent) to declare petitioner mentally unfit
to work and drop her from the rolls.

Normally, we do not entertain such purely factual issues we avoid weighing conflicting
evidence, and substituting our evaluation for that of the lower courts and administrative or quasi-judicial
tribunals. We accord great respect, even finality, to the latters factual findings, especially when these
are adopted and confirmed by the CA; instead, we confine ourselves to merely reviewing and revising
their errors of law.
[26]
But when their findings are not supported by evidence,
[27]
we step in to review their
factual evaluation and correct their gross error.
[28]


In the present case, existing evidence controvert the CA finding that respondent correctly
declared petitioner mentally unfit. A review of its finding is called for.

Under Section 46, Book V of Executive Order (E.O.) No. 292,
[29]
one
of the causes for separation from government service of an officer or employee is mental
incapacity,
[30]
viz.:

Sec. 46. x x x (b) The following shall be grounds for disciplinary actions:
x x x (19) Physical or mental incapacity or disability due to immoral or vicious
habits. (Emphasis added)

Separation from the service for such cause is done by way of a disciplinary proceeding governed by Rule
II of CSC Memorandum Circular No. 19, series of 1999 (MC 19-99).
[31]
The minimum procedural
requirements thereof are: a) that notice of the charge be served on the officer or employee; and, b) that
the latter be given opportunity to be heard.

While Section 46 of E.O. No. 292 is silent on this matter, mental incapacity not arising from
immoral or vicious habits is also a cause for separation under Section 26
[32]
of E.O. No. 292 and Section
2(2), Article IX(B) of the 1987 Constitution,
[33]
which demand of government officers and employees
continuing merit and fitness. Separation from the service for such cause is carried out through a non-
disciplinary process governed by CSC Memorandum Circular No. 40,
[34]
series of 1998 (MC 40-98).

The only difference between the two modes of separation is that the first carries administrative
disabilities, such as forfeiture of retirement benefits and perpetual disqualification from employment in
the government
service,
[35]
while the second does not.
[36]
But both result in loss of employment a property right
protected under the due process clause.
[37]
Hence, even if considered a non-disciplinary mode of
separation, dropping from the rolls due to mental incapacity not arising from immoral or vicious habits is
subject to the requirements of due process,
[38]
as prescribed in the following provisions of MC 40-98:

Rule XII

Section 2. Dropping from the Rolls. Officers and employees who are either
habitually absent or have unsatisfactory or poor performance or have shown to be
physically and mentally unfit to perform their duties may be dropped from the rolls subject
to the following procedures:

x x x x

2.3 Physically and Mentally Unfit

a. An officer or employee who is continuously absent for more than one (1) year
by reason of illness may be declared physically unfit to perform his duties and the head of
office in the exercise of his sound judgment may consequently drop him from the rolls.

b. An officer or employee who is intermittently absent by reason of illness for at
least 260 working days during a 24-month period may also be declared physically unfit by
the head of office.

c. An officer or employee who is behaving abnormally for an extended
period which manifests continuing mental disorder and incapacity to work as
reported by his co-workers or immediate supervisor and confirmed by the head of
office, may likewise be dropped from the rolls.

For the purpose of the three (3) preceding paragraphs, notice shall be given
to the employee containing a brief statement of the nature of his incapacity to
work.

x x x x

2.6 This mode of separation from the service for unauthorized absences or
unsatisfactory or poor performance or physical and mental incapacity is non-disciplinary
in nature and shall not result in the forfeiture of any benefits on the part of the
official or employee nor in disqualifying him from employment in the government;

2.7 The written notice mentioned in the preceding paragraphs may be signed
by the person exercising immediate supervision over the official or employee. However,
the notice of separation shall be signed by the appointing authority or head of
office. (Emphasis ours)

Clearly, before an officer or employee may be dropped from the rolls for mental incapacity, the
following elements and process must obtain: first, that it has been observed that the subject officer or
employee has been behaving abnormally for an extended period; second, that it has been established
through substantial evidence that such abnormal behavior manifests a continuing mental disorder and
incapacity to work; third, that a written notice is issued by the subjects immediate supervisor, describing
the formers continuing mental disorder and incapacity to work and citing the reports of his co-workers or
immediate supervisor, as confirmed by the head of office; and finally, that another notice is issued by the
appointing authority or head of office, informing the subject of his separation from the service due to
mental incapacity.

Thus, a declaration of mental disorder does not automatically translate to a judgment of mental
incapacity to perform work. A window remains open for the affected officer or employee to counter
opinion on his mental condition and to show that his ability to work remains unimpaired. Only then may
the appointing authority or head of office decide on whether said officer or employee is no longer mentally
capable of performing his work and should be discharged. These requirements are designed to obviate
misuse of non-disciplinary modes of separation for petty vengeance or vicious harassment.

The procedure adopted by respondent in dropping petitioner from the rolls substantially complied
with the two-notice requirement of MC 40-98. Respondent issued to petitioner the August 5, 1999 letter,
requiring her to undergo psychiatric evaluation. Although the letter was addressed to petitioners spouse
(Mr. Romagos), petitioner was sufficiently notified for she even replied to said letter.
[39]


However, the factual bases relied upon by respondent in declaring petitioner mentally unfit to work
appear inadequate as they failed to comply with the elements and process provided for in the MC 40-98,
as earlier pointed out.

Petitioner protests the finding that she suffers from mental incapacity. She disputes the relevance
of the medical reports cited by respondent which refer to her mental condition in 1989 and 1991 but not to
her mental state or capacity to work at the time she was dropped from the rolls in 1999. She claims that
said medical reports have even been superseded by the August 20, 1999 Certification issued by
Dr. Renato D. Obra,
[40]
which reads:

This is to certify that Mrs. Vilma Romagos, 41 years old, married, an
employee of MCWD, sought consultation last Aug. 19, 1999 and today.

Psychotherapy done, she is advised to come back for check-up after one
month. Rec: Physically and mentally fit to go back to work.
[41]
(Emphasis added)

She also questions the finding that her purported abnormality has lasted for an extended period, pointing
out that respondents December 1, 1999 letter cited only two incidents in January and August 1999. She
impugns the validity of the admission of additional evidence referring to other incidents in September and
December 1999, of which she was never apprised.
[42]

We only partly agree.

Respondent sufficiently established that petitioner suffers from a mental disorder. There is
overwhelming evidence of this condition. The 1989 and 1991 medical certifications issued by
Dr. Costas and Dr. Obra establish that petitioner was diagnosed to be suffering from Major
Depression. The 1999 medical certification of Dr. Obra proves that, at the time of her separation from the
service, petitioner was undergoing psychiatric treatment. The incident reports submitted by respondents
employees uniformly indicate that petitioner is mentally disturbed. The latters own letters and reports also
reveal an abnormal mental condition.
[43]
Moreover, petitioners abnormal mental condition appears to be
in a continuing state, considering that she was first diagnosed to be suffering from Major Depression in
1989, yet, in 1999, she was still undergoing psychiatric evaluation.

The question, however, is whether respondent sufficiently proved that petitioners mental condition
has rendered her incapacitated to work as to justify her being dropped from the rolls.

It did not.

All that the 1989 and 1991 medical certifications established is that, during said periods, petitioner
was diagnosed to be suffering from Major Depression. These certifications hardly prove that petitioners
behavior manifests a continuing mental disorder and incapacity to work. In fact, the 1991 medical
certification of Dr. Obra points to the contrary for it states that petitioner may go back to work provided
that she will come back for check up as scheduled.
[44]
This view is bolstered by other documents of
record, which respondent did not dispute, such as petitioners school transcripts, indicating that from 1980
to 1995 the latter took a graduate course in business administration at
the Southwestern University.
[45]
Such endeavor negates the notion that from the time of her first diagnosis
in 1989 to the time of her separation in 1999, petitioner was suffering from a mental impediment to work.

Another evidence of petitioner's continuing capacity to work despite her mental condition is her
performance ratings for 1996 and 1998, copies of which are of record.
[46]
In both evaluations, petitioners
work performance was rated very satisfactory. Petitioners ratee, Editha Luzano, even remarked about
an improvement in petitioners performance.
[47]


More telling is the August 20, 1999 medical certification issued by Dr. Obra which categorically
declared petitioner physically and mentally fit to go back to work.
[48]
It is bewildering that the CSCRO
belittled the significance of this certification, when it held:

As to the bearing to the case of the Certification of Dr. Obra dated August 20,
1999, we are of the view that it is not of sufficient weight to negate or outweigh the
actual observations of appellant's co-workers on her abnormal behavior. It cannot
be denied that the time a patient stays with the doctor during consultation and
check-up is so much less than the time co-workers spend with one another during
working hours. It cannot be denied also that stress-wise employees during working time
are subject to various work-related pressures. As the person who are with the appellant
in the workplace for a considerable length of time, co-workers are the ones who can
observe the actuations and behavior of the appellant especially when she is beset with
problems and pressures.
[49]


Such reasoning is flawed. To begin with, it was respondent which elicited the opinion of Dr. Obra when,
in a letter dated August 5, 1999, it required petitioner to undergo evaluation and conditioned her return to
work only upon being certified as mentally fit, thus:

This has reference to Mrs. Vilma Romagos observed abnormal behavior, We
know you are fully aware of this considering that every time she creates trouble,
Mrs. Faelnar always sought assistance from you. This year alone, she has been
behaving abnormally on three occasions specifically on January 25-30, July 12-16 and
the most recent incident was that of yesterday, August 4,
1999 during HRDs departmental meeting, per attached HRD report.

Thus, for our mutual benefit, you are advised to bring her to her
psychiatrist, Dr. Pureza Trinidad Onate or Dr. Renato D. Obra, for check-
up/treatment immediately. Starting on Monday, August 9, 1999, we regret that we
cannot allow entry for her. She may go back to work only when certified by her
doctor that she is already mentally fit.
[50]


Hence, respondent cannot impugn the August 20, 1999 medical certification of Dr. Obra merely because
said document is not favorable to it.

Moreover, respondent itself relied on the 1989 and 1991 medical certifications in declaring
petitioner mentally unfit to work. The CSCRO, CSC and CA also cited said medical certifications. There
is no reason for them not to assign equal probative value to the August 20, 1999 medical certification of
Dr. Obra.

In sum, the CA gravely erred in affirming the dismissal of petitioner. While there is no question that
at the time she was dropped from the rolls, petitioner was suffering from a protracted mental
disorder, the same did not render her incapable of performing her work. There was therefore an
incomplete cause or justification to drop her from the rolls.

Her separation from the service being invalid, petitioner is entitled to reinstatement to her former
position with payment of backwages computed in accordance with our ruling in Batangas State University
v. Bonifacio,
[51]
viz.:

The Court of Appeals correctly ordered respondents reinstatement. However, the
award of backwages and other monetary benefits should not be limited to 5 years and
must therefore be modified in line with the recent case of Civil Service Commission
v.Gentallan. We held in said case that an illegally dismissed government employee who
is later ordered reinstated is entitled to backwages and other monetary benefits from the
time of her illegal dismissal up to her reinstatement. This is only fair and just because an
employee who is reinstated after having been illegally dismissed is considered as not
having left her office and should be given the corresponding compensation at the time of
her reinstatement.

WHEREFORE, the petition is GRANTED. The July 5, 2002 Decision

and the October 29, 2002
Resolution of the Court of Appeals are REVERSED and SET ASIDE. The dropping from the rolls of
petitioner Vilma A. Romagosis DECLARED ILLEGAL and respondent Metro Cebu Water District
is DIRECTED to reinstate petitioner to her previous position and pay her backwages.

No costs.

SO ORDERED.

De Guzman v. Comelec
G.R. No. 129118 (July 19, 2000)
FACTS: Section 44 of the Voters Registration Act provided that no election officer shall hold office in a particular
municipality or city for more than 4 years. In accordance with it, the Comelec reassigned petitioners, who were
election officers to other stations. Petitioners argued that the law violated their security of tenure.

HELD: What the guarantee of security of tenure seeks to prevent is the capricious exercise of the power to
dismiss. Where it is the legislature which furnishes the ground for the transfer of a class of employees, no such
capriciousness can be raised for so long as the remedy proposed to cure a perceived evil is germane to the purpose
of the law.


THIRD DIVISION
[G.R. No. 119903. August 15, 2000]
HON. RICARDO T. GLORIA, in his capacity as SECRETARY, AND DIRECTOR NILO L.
ROSAS in his capacity as REGIONAL DIRECTOR, DEPARTMENT OF EDUCATION,
CULTURE AND SPORTS,petitioners, vs. HON. COURT OF APPEALS AND DR. BIENVENIDO
A. ICASIANO, respondents.
D E C I S I O N
PURISIMA, J .:
This is a petition for review on certiorari under Rule 45 of the Rules of Court brought by Secretary
and the Director for the National Capital Region of the Department of Education, Culture and
Sports (DECS), to question the decision
[1]
of the Court of Appeals in CA-G.R. SP No. 35505.
The Court of Appeals found the facts as follows:
"On June 29, 1989, petitioner [private respondent herein] was appointed Schools Division
Superintendent, Division of City Schools, Quezon City, by the then President Corazon C.
Aquino.
On October 10, 1994, respondent Secretary Gloria recommended to the President of the
Philippines that the petitioner be reassigned as Superintendent of the MIST [Marikina
Institute of Science and Technology], to fill up the vacuum created by the retirement of its
Superintendent, Mr. Bannaoag F. Lauro, on June 17, 1994.
On October 12, 1994, the President approved the recommendation of Secretary Gloria.
On October 13, 1994, a copy of the recommendation for petitioners reassignment, as
approved by the President, was transmitted by Secretary Gloria to Director Rosas for
implementation.
On October 14, 1994, Director Rosas, informed the petitioner of his reassignment,
effective October 17, 1994.
Petitioner requested respondent Secretary Gloria to reconsider the reassignment, but the
latter denied the request. The petitioner prepared a letter dated October 18, 1994 to the
President of the Philippines, asking for a reconsideration of his reassignment, and
furnished a copy of the same to the DECS. However, he subsequently changed his mind
and refrained from filing the letter with the Office of President.
On October 19, 1994, the petitioner filed the instant petition."
[2]

On October 26, 1994, the Court of Appeals denied private respondents prayer for the issuance of
a Temporary Restraining Order (TRO).
[3]

On November 22, 1994, it set aside its earlier resolution denying the prayer for the issuance of a
TRO; and thereafter, restrained the petitioners "from implementing the re-assignment of the
petitioner [private respondent herein] from incumbent Schools Division Superintendent of Quezon
City to Vocational Schools Superintendent of the Marikina Institute of Science and Technology."
[4]

On December 21, 1994, the Court of Appeals issued another resolution setting the hearing of the
petition for the issuance of a writ of preliminary injunction and enjoining the petitioners from
implementing the reassignment of the private respondent.
On March 28, 1995, it issued its assailed decision; holding as follows:
"WHEREFORE, for lack of a period or any indication that it is only temporary, the
reassignment of the petitioner from Schools Division Superintendent, Division of City
Schools, Quezon City, to Vocational Schools Superintendent of the Marikina Institute of
Science and Technology pursuant to the Memorandum of Secretary Ricardo T. Gloria to
the President of the Philippines dated 10 October 1994, is hereby declared to be violative
of petitioners right to security of tenure, and the respondents are hereby prohibited from
implementing the same.
SO ORDERED."
[5]

Petitioners are now before the Court seeking relief from the decision of the appellate court,
contending that:
I
RESPONDENT COURT OF APPEALS HAS ALLOWED ITSELF TO BE INSTRUMENTAL IN
PRIVATE RESPONDENTS CIRCUMVENTION OF THE PRESIDENTIAL IMMUNITY FROM
SUIT BY GIVING DUE COURSE AND GRANTING RELIEFS PRAYED FOR IN A SUIT
PURPORTEDLY FILED AGAINST PETITIONERS BUT ACTUALLY QUESTIONING AN ACT OF
THE PRESIDENT.
II
RESPONDENT COURT OF APPEALS HAS DECIDED A QUESTION OF SUBSTANCE IN A
WAY NOT IN ACCORD WITH LAW OR APPLICABLE DECISIONS OF THE SUPREME COURT
[6]

The pivotal issue for resolution here is whether the reassignment of private respondent from
School Division Superintendent of Quezon City to Vocational School Superintendent of MIST is
violative of his security of tenure? Petitioners maintain that there is no violation of security of
tenure involved. Private respondent maintains otherwise.
In taking favorable action on private respondents petition for prohibition, the Court of Appeals
ratiocinated:
"Notwithstanding the protestations of counsel for the respondents, the reassignment of
the petitioner to MIST appears to be indefinite. No period is fixed. No objective or
purpose, from which the temporariness of the assignment may be inferred, is set. In fact,
the recommendation of respondent Secretary Gloria to the President that the position of
superintendent of MIST will best fit his (petitioners) qualifications and experience. (Exh.
C-2) implies that the proposed reassignment will be indefinite."
[7]

Petitioners theorize that the present petition for prohibition is improper because the same attacks
an act of the President, in violation of the doctrine of presidential immunity from suit.
Petitioners contention is untenable for the simple reason that the petition is directed against
petitioners and not against the President. The questioned acts are those of petitioners and not of
the President. Furthermore, presidential decisions may be questioned before the courts where
there is grave abuse of discretion or that the President acted without or in excess of jurisdiction.
[8]

Petitioners submission that the petition of private respondent with the Court of Appeals is
improper for failing to show that petitioners constituted themselves into a "court" conducting a
"proceeding" and for failing to show that any of the petitioners acted beyond their jurisdiction in
the exercise of their judicial or ministerial functions, is barren of merit. Private respondent has
clearly averred that the petitioners acted with grave abuse of discretion amounting to lack of
jurisdiction and/or excess of jurisdiction in reassigning the private respondent in a way that
infringed upon his security of tenure. And petitioners themselves admitted that their questioned
act constituted a ministerial duty, such that they could be subject to charges of insubordination if
they did not comply with the presidential order. What is more, where an administrative
department acts with grave abuse of discretion, which is equivalent to a capricious and whimsical
exercise of judgment, or where the power is exercised in an arbitrary or despotic manner, there is
a justification for the courts to set aside the administrative determination thus reached.
[9]

Petitioners contend that the doctrine enunciated in Bentain vs. Court of Appeals
[10]
-- that "a
reassignment that is indefinite and results in a reduction in rank, status and salary, is in effect, a
constructive removal from the service" -- does not apply in the present case for the reassignment
in question was merely temporary, lasting only until the appointment of a new Vocational School
Superintendent of MIST.
After a careful study, the Court upholds the finding of the respondent court that the reassignment
of petitioner to MIST "appears to be indefinite". The same can be inferred from the
Memorandum
[11]
of Secretary Gloria for President Fidel V. Ramos to the effect that the
reassignment of private respondent will "best fit his qualifications and experience" being "an
expert in vocational and technical education." It can thus be gleaned that subject reassignment is
more than temporary as the private respondent has been described as fit for the (reassigned) job,
being an expert in the field. Besides, there is nothing in the said Memorandum to show that the
reassignment of private respondent is temporary or would only last until a permanent
replacement is found as no period is specified or fixed; which fact evinces an intention on the part
of petitioners to reassign private respondent with no definite period or duration. Such feature of
the reassignment in question is definitely violative of the security of tenure of the private
respondent. As held in Bentain:
"Security of tenure is a fundamental and constitutionally guaranteed feature of our civil
service. The mantle of its protection extends not only to employees removed without
cause but also to cases of unconsented transfers which are tantamount to illegal
removals (Department of Education, Culture and Sports vs. Court of Appeals, 183 SCRA
555; Ibanez vs. COMELEC, 19 SCRA 1002; Brillantes vs. Guevarra, 27 SCRA 138).
While a temporary transfer or assignment of personnel is permissible even without the
employees prior consent, it cannot be done when the transfer is a preliminary step
toward his removal, or is a scheme to lure him away from his permanent position, or
designed to indirectly terminate his service, or force his resignation. Such a transfer
would in effect circumvent the provision which safeguards the tenure of office of those
who are in the Civil Service (Sta. Maria vs. Lopez, 31 SCRA 651; Garcia vs. Lejano, 109
Phil. 116)."
[12]

Having found the reassignment of private respondent to the MIST to be violative of his security of
tenure, the order for his reassignment to the MIST cannot be countenanced.
WHEREFORE, the petition is hereby DENIED, and the Decision of the Court of Appeals in CA-
G.R. SP No. 35505 AFFIRMED. No pronouncement as to costs.
SO ORDERED.

Gloria v. CA
G.R. No. 119903 (August 15, 2000)
FACTS: Respondent was appointed School Division Superintendent, Division of City Schools, Quezon
City. Upon recommendation of the Secretary of Education, Culture and Sports, the President reassigned
him as Superintendent of the Marikina Institute of Science and Technology on the ground that he is an
expert in vocational and technical education. Respondent questioned the validity of his reassignment on
the ground that it is indefinite and it violated his security of tenure.

HELD: There is nothing to show that the reassignment of respondent is temporary. The evidence or
intention to reassign respondent had no definite period. It is violative of his security of tenure.


EN BANC
[G. R. No. 133132. January 25, 2000]
ALEXIS C. CANONIZADO, EDGAR DULA TORRES, and ROGELIO A. PUREZA, petitioners, vs.
HON. ALEXANDER P. AGUIRRE, as Executive Secretary, HON. EMILIA T. BONCODIN, as Secretary
of Budget and Management, JOSE PERCIVAL L. ADIONG, ROMEO L. CAIRME and VIRGINIA U.
CRISTOBAL, respondents.
D E C I S I O N
GONZAGA_REYES, J .:
The central issue posed before this Court in the present case is the constitutionality of Republic Act No.
8551 (RA 8551), otherwise known as the "Philippine National Police Reform and Reorganization Act of
1998,"
[1]
by virtue of which petitioners herein, who were all members of the National Police Commission
(NAPOLCOM), were separated from office. Petitioners claim that such law violates their constitutionally
guaranteed right to security of tenure.
The NAPOLCOM was originally created under Republic Act No. 6975 (RA 6975), entitled "An Act
Establishing The Philippine National Police Under A Reorganized Department Of The Interior And Local
Government, And For Other Purposes." Under RA 6975, the members of the NAPOLCOM were
petitioners Edgar Dula Torres, Alexis C. Canonizado, Rogelio A. Pureza and respondent Jose Percival L.
Adiong. Dula Torres was first appointed to the NAPOLCOM on January 8, 1991 for a six year term. He
was re-appointed on January 23, 1997 for another six years. Canonizado was appointed on January 25,
1993 to serve the unexpired term of another Commissioner which ended on December 31, 1995. On
August 23, 1995, Canonizado was re-appointed for another six years. Pureza was appointed on January
2, 1997 for a similar term of six years. Respondent Adiongs appointment to the NAPOLCOM was issued
on July 23, 1996. None of their terms had expired at the time the amendatory law was passed.
[2]

On March 6, 1998, RA 8551 took effect; it declared that the terms of the current Commissioners were
deemed as expired upon its effectivity. Pursuant thereto, President Ramos appointed Romeo L. Cairme
on March 11, 1998 as a member of the NAPOLCOM for a full six year term. On the same date, Adiong,
was given a term extension of two years since he had served less than two years of his previous term.
Cairme and Adiong both took their oaths of office on April 6, 1998.
[3]
Completing the membership of the
NAPOLCOM are Leo S. Magahum and Cleofe M. Factoran, who were appointed by President Estrada on
June 30, 1998 and who took their oaths of office on July 2, 1998.
[4]

According to petitioners, sections 4 and 8 of RA 8551 are unconstitutional. Section 4, amending section
13 of Republic Act No. 6975, provides -
SEC. 13. Creation and Composition. A National Police Commission, hereinafter
referred to as the Commission, is hereby created for the purpose of effectively
discharging the functions prescribed in the Constitution and provided in this Act. The
Commission shall be an agency attached to the Department for policy and program
coordination. It shall be composed of a Chairperson, four (4) regular Commissioners, and
the Chief of the PNP as ex-officio member. Three (3) of the regular Commissioners shall
come from the civilian sector who are neither active nor former members of the police or
military, one (1) of whom shall be designated as vice chairperson by the President. The
fourth regular Commissioner shall come from the law enforcement sector either active or
retired: Provided, That an active member of a law enforcement agency shall be
considered resigned from said agency once appointed to the Commission: Provided
further, That at least one (1) of the Commissioners shall be a woman. The Secretary of
the Department shall be the ex-officio Chairperson of the Commission, while the Vice
Chairperson shall act as the executive officer of the Commission.
Meanwhile, section 8 states that -
Upon the effectivity of this Act, the terms of office of the current Commissioners are
deemed expired which shall constitute a bar to their reappointment or an extension of
their terms in the Commission except for current Commissioners who have served less
than two (2) years of their terms of office who may be appointed by the President for a
maximum term of two (2) years.
Petitioners argue that their removal from office by virtue of section 8 of RA 8551 violates their security of
tenure.
It is beyond dispute that petitioners herein are members of the civil service, which embraces all branches,
subdivisions, instrumentalities, and agencies of the Government, including government-owned or
controlled corporations with original charters.
[5]
As such, they cannot be removed or suspended from
office, except for cause provided by law.
[6]
The phrase "except for cause provided by law" refers to "
reasons which the law and sound public policy recognize as sufficient warrant for removal, that is, legal
cause, and not merely causes which the appointing power in the exercise of discretion may deem
sufficient."
[7]

Public respondents insist that the express declaration in section 8 of RA 8551 that the terms of
petitioners offices are deemed expired discloses the legislative intent to impliedly abolish the
NAPOLCOM created under RA 6975 pursuant to a bona fide reorganization. In support of their theory,
public respondents cite the various changes introduced by RA 8551 in the functions, composition and
character of the NAPOLCOM as proof of Congress intention to abolish the body created under RA 6975
in order to replace it with a new NAPOLCOM which is more civilian in nature, in compliance with the
constitutional mandate. Petitioners posit the theory that the abolition of petitioners offices was a result of
a reorganization of the NAPOLCOM allegedly effected by RA 8551.
[8]

The creation and abolition of public offices is primarily a legislative function.
[9]
It is acknowledged that
Congress may abolish any office it creates without impairing the officers right to continue in the position
held
[10]
and that such power may be exercised for various reasons, such as the lack of funds
[11]
or in the
interest of economy.
[12]
However, in order for the abolition to be valid, it must be made in good faith, not for
political or personal reasons, or in order to circumvent the constitutional security of tenure of civil service
employees.
[13]

An abolition of office connotes an intention to do away with such office wholly and permanently, as the
word "abolished" denotes.
[14]
Where one office is abolished and replaced with another office vested with
similar functions, the abolition is a legal nullity. Thus, in U.P. Board of Regents v. Rasul
[15]
we said:
It is true that a valid and bona fide abolition of an office denies to the incumbent the right
to security of tenure. [De la Lanna v. Alba, 112 SCRA 294 (1982)] However, in this case,
the renaming and restructuring of the PGH and its component units cannot give rise to a
valid and bona fide abolition of the position of PGH Director. This is because where the
abolished office and the offices created in its place have similar functions, the abolition
lacks good faith. [Jose L. Guerrero v. Hon. Antonio V. Arizabal, G.R. No. 81928, June 4,
1990, 186 SCRA 108 (1990)] We hereby apply the principle enunciated in Cesar Z. Dario
vs. Hon. Salvador M. Mison [176 SCRA 84 (1989)] that abolition which merely changes
the nomenclature of positions is invalid and does not result in the removal of the
incumbent.
The above notwithstanding, and assuming that the abolition of the position of the PGH
Director and the creation of a UP-PGH Medical Center Director are valid, the removal of
the incumbent is still not justified for the reason that the duties and functions of the two
positions are basically the same. (underscoring supplied)
This was also our ruling in Guerrero v. Arizabal,
[16]
wherein we declared that the substantial identity in the
functions between the two offices was indicia of bad faith in the removal of petitioner pursuant to a
reorganization.
We come now to the case at bench. The question that must first be resolved is whether or not petitioners
were removed by virtue of a valid abolition of their office by Congress. More specifically, whether the
changes effected by RA 8551 in reference to the NAPOLCOM were so substantial as to effectively create
a completely new office in contemplation of the law. In answer to this query, the case of Mayor v.
Macaraig
[17]
is squarely in point.
In that case, the petitioners assailed the constitutionality of Republic Act No. 6715
[18]
insofar as it declared
vacant the positions of the Commissioners, Executive Labor Arbiters and Labor Arbiters of the National
Labor Relations Commission and provided for the removal of the incumbents upon the appointment and
qualification of their successors.
[19]
The Court held that the removal of petitioners was unconstitutional
since Republic Act No. 6715 did not expressly or impliedly abolish the offices of petitioners, there being
no irreconcilable inconsistency in the nature, duties and functions of the petitioners offices under the old
law and the new law. Thus:
Abolition of an office is obviously not the same as the declaration that that office is
vacant. While it is undoubtedly a prerogative of the legislature to abolish certain offices, it
can not be conceded the power to simply pronounce those offices vacant and thereby
effectively remove the occupants or holders thereof from the civil service. Such an act
would constitute, on its face, an infringement of the constitutional guarantee of security of
tenure, and will have to be struck down on that account. It can not be justified by the
professed "need to professionalize the higher levels of officialdom invested with
adjudicatory powers and functions, and to upgrade their qualifications, ranks, and
salaries or emoluments.
This is precisely what RA 8851 seeks to do - declare the offices of petitioners vacant, by declaring that
"the terms of office of the current Commissioners are deemed expired," thereby removing petitioners
herein from the civil service. Congress may only be conceded this power if it is done pursuant to a bona
fide abolition of the NAPOLCOM.
RA 8551 did not expressly abolish petitioners positions. In order to determine whether there has been an
implied abolition, it becomes necessary to examine the changes introduced by the new law in the nature,
composition and functions of the NAPOLCOM.
Under RA 6975, the NAPOLCOM was described as a collegial body within the Department of the Interior
and Local Government,
[20]
(Department) whereas under RA 8551 it is made "an agency attached to the
Department for policy and program coordination."
[21]
Contrary to what public respondents would have us
believe, this does not result in the creation of an entirely new office. In Mayor, the NLRC, prior to the
passage of the amendatory law, was also considered an integral part of the Department of Labor and
Employment. RA 6715, however, changed that by declaring that it shall instead "..be attached to the
Department of Labor and Employment for program coordination only." making it a more autonomous
body. The Court held that this change in the NLRCs nature was not sufficient to justify a conclusion that
the new law abolished the offices of the labor commissioners.
Another amendment pointed out by public respondents is the revision of the NAPOLCOMs composition.
RA 8551 expanded the membership of the NAPOLCOM from four to five Commissioners by adding the
Chief of the PNP as an ex-officio member. In addition, the new law provided that three of the regular
Commissioners shall come from the civilian sector who are neither active nor former members of the
police or military, and that the fourth regular Commissioner shall come from the law enforcement sector
either active or retired. Furthermore, it is required that at least one of the Commissioners shall be a
woman.
[22]
Again, as we held in Mayor, such revisions do not constitute such essential changes in the
nature of the NAPOLCOM as to result in an implied abolition of such office. It will be noted that the
organizational structure of the NAPOLCOM, as provided in section 20 of RA 6975 as amended by section
10 of RA 8551,
[23]
remains essentially the same and that, except for the addition of the PNP Chief as ex-
officio member, the composition of the NAPOLCOM is also substantially identical under the two laws.
Also, under both laws, the Secretary of the Department shall act as the ex-officio Chairman of the
Commission and the Vice-Chairman shall be one of the Commissioners designated by the President.
[24]

Finally, the powers and duties of the NAPOLCOM remain basically unchanged by the amendments.
Under RA 6975, the Commission has the following powers and functions:
(a) Exercise administrative control over the Philippine National Police;
(b) Advise the President on all matters involving police functions and administration;
(c) Foster and develop policies and promulgate rules and regulations, standards and
procedures to improve police services based on sound professional concepts and
principles;
(d) Examine and audit, and thereafter establish the standards for such purposes on a
continuing basis, the performance, activities, and facilities of all police agencies
throughout the country;
(e) Prepare a police manual prescribing rules and regulations for efficient organization,
administration, and operation, including recruitment, selection, promotion and retirement;
(f) Establish a system of uniform crime reporting;
(g) Conduct surveys and compile statistical data for the proper evaluation of the efficiency
and effectiveness of all police units in the country;
(h) Render to the President and to Congress an annual report on its activities and
accomplishments during the thirty (30) days after the end of the calendar year, which
shall include an appraisal of the conditions obtaining in the organization and
administration of police agencies in the municipalities, cities and provinces throughout the
country, and recommendation for appropriate remedial legislation;
(i) Approve or modify plans and programs on education and training, logistical
requirements, communications, records, information systems, crime laboratory, crime
prevention and crime reporting;
(j) Affirm reverse or modify, through the National Appellate Board, personnel disciplinary
actions involving demotion or dismissal from the service imposed upon members of the
Philippine National Police by the Chief of the Philippine National Police;
(k) Exercise appellate jurisdiction through the regional appellate boards over
administrative cases against policemen and over decisions on claims for police benefits;
(l) Recommend to the President, through the Secretary, within sixty (60) days before the
commencement of each calendar year, a crime prevention;
(m) Prescribe minimum standards for arms, equipment, and uniforms and, after
consultation with the Philippine Heraldry Commission, for insignia of ranks, awards and
medals of honor;
(n) Issue subpoena and subpoena duces tecum in matters pertaining to the discharge of
its own powers and duties, and designate who among its personnel can issue such
processes and administer oaths in connection therewith; and
(o) Perform such other functions necessary to carry out the provisions of this Act and as
the President may direct.
Meanwhile, the NAPOLCOMs functions under section 5 of RA 8551 are:
a) Exercise administrative control and operational supervision over the Philippine
National Police which shall mean the power to:
1) Develop policies and promulgate a police manual prescribing rules and regulations for
efficient organization, administration, and operation, including criteria for manpower
allocation, distribution and deployment, recruitment, selection , promotion, and retirement
of personnel and the conduct of qualifying entrance and promotional examinations for
uniformed members;
2) Examine and audit, and thereafter establish the standards for such purposes on a
continuing basis, the performance, activities and facilities of all police agencies
throughout the country;
3) Establish a system of uniform crime reporting;
4) Conduct an annual self-report survey and compile statistical date for the accurate
assessment of the crime situation and the proper evaluation of the efficiency and
effectiveness of all police units in the country;
5) Approve or modify plans and programs on education and training, logistical
requirements, communications, records, information systems, crime laboratory, crime
prevention and crime reporting;
6) Affirm, reverse or modify, through the National Appellate Board, personnel disciplinary
actions involving demotion or dismissal from the service imposed upon members of the
Philippine National Police by the Chief of the Philippine National Police;
7) Exercise appellate jurisdiction through the regional appellate boards over
administrative cases against policemen and over decisions on claims for police benefits;
8) Prescribe minimum standards for arms, equipment, and uniforms and after
consultation with the Philippine Heraldry Commission, for insignia of ranks, awards, and
medals of honor. Within ninety (90) days from the effectivity of this Act, the standards of
the uniformed personnel of the PNP must be revised which should be clearly distinct from
the military and reflective of the civilian character of the police;
9) Issue subpoena and subpoena duces tecum in matters pertaining to the discharge of
its own powers and duties, and designate who among its personnel can issue such
processes and administer oaths in connection therewith;
10) Inspect and assess the compliance of the PNP on the established criteria for
manpower allocation, distribution, and deployment and their impact on the community
and the crime situation, and therewith formulate appropriate guidelines for maximization
of resources and effective utilization of the PNP personnel;
11) Monitor the performance of the local chief executives as deputies of the Commission;
and
12) Monitor and investigate police anomalies and irregularities.
b) Advise the President on all matters involving police functions and administration;
c) Render to the President and to the Congress an annual report on its activities and
accomplishments during the thirty (30) days after the end of the calendar year, which
shall include an appraisal of the conditions obtaining in the organization and
administration of police agencies in the municipalities, cities and provinces throughout the
country, and recommendations for appropriate remedial legislation;
d) Recommend to the President, through the Secretary, within sixty (60) days before the
commencement of each calendar year, a crime prevention program; and
e) Perform such other functions necessary to carry out the provisions of this Act and as
the President may direct."
Clearly, the NAPOLCOM continues to exercise substantially the same administrative, supervisory, rule-
making, advisory and adjudicatory functions.
Public respondents argue that the fact that the NAPOLCOM is now vested with administrative control and
operational supervision over the PNP, whereas under RA 6975 it only exercised administrative control
should be construed as evidence of legislative intent to abolish such office.
[25]
This contention is bereft of
merit. Control means "the power of an officer to alter or modify or set aside what a subordinate officer had
done in the performance of his duties and to substitute the judgment of the former for the that of the
latter."
[26]
On the other hand, to supervise is to oversee, to have oversight of, to superintend the execution
of or the performance of a thing, or the movements or work of a person, to inspect with authority; it is the
power or authority of an officer to see that subordinate officers perform their duties.
[27]
Thus, the power of
control necessarily encompasses the power of supervision and adding the phrase "operational
supervision" under the powers of the NAPOLCOM would not bring about a substantial change in its
functions so as to arrive at the conclusion that a completely new office has been created.
Public respondents would have this Court believe that RA 8551 reorganized the NAPOLCOM resulting in
the abolition of petitioners offices. We hold that there has been absolutely no attempt by Congress to
effect such a reorganization.
Reorganization takes place when there is an alteration of the existing structure of government offices or
units therein, including the lines of control, authority and responsibility between them.
[28]
It involves a
reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy
of functions.
[29]
Naturally, it may result in the loss of ones position through removal or abolition of an office.
However, for a reorganization to be valid, it must also pass the test of good faith, laid down in Dario v.
Mison:
[30]

...As a general rule, a reorganization is carried out in "good faith" if it is for the purpose of
economy or to make bureaucracy more efficient. In that event, no dismissal (in case of a
dismissal) or separation actually occurs because the position itself ceases to exist. And in
that case, security of tenure would not be a Chinese wall. Be that as it may, if the
"abolition," which is nothing else but a separation or removal, is done for political reasons
or purposely to defeat security of tenure, or otherwise not in good faith, no valid
"abolition" takes place and whatever "abolition" is done, is void ab initio. There is an
invalid "abolition" as where there is merely a change of nomenclature of positions, or
where claims of economy are belied by the existence of ample funds.
It is exceedingly apparent to this Court that RA 8551 effected a reorganization of the PNP, not of the
NAPOLCOM. They are two separate and distinct bodies, with one having supervision and control over the
other. In fact, it is the NAPOLCOM that is given the duty of submitting a proposed reorganization plan of
the PNP to Congress.
[31]
As mentioned earlier, the basic structure of the NAPOLCOM has been preserved
by the amendatory law. There has been no revision in its lines of control, authority and responsibility,
neither has there been a reduction in its membership, nor a consolidation or abolition of the offices
constituting the same. Adding the Chief of the PNP as an ex-officio member of the Commission does not
result in a reorganization.
No bona fide reorganization of the NAPOLCOM having been mandated by Congress, RA 8551, insofar as
it declares the terms of office of the incumbent Commissioners, petitioners herein, as expired and
resulting in their removal from office, removes civil service employees from office without legal cause and
must therefore be struck down for being constitutionally infirm.
Petitioners are thus entitled to be reinstated to office. It is of no moment that there are now new
appointees to the NAPOLCOM. It is a well-entrenched principle that when a regular government
employee is illegally dismissed, his position never became vacant under the law and he is considered as
not having left his office. The new appointments made in order to replace petitioners are not valid.
[32]

At this juncture, we note that it is alleged by public respondents that on June 30, 1998, Canonizado
accepted an appointment by President Estrada as the Inspector General of Internal Affairs Services (IAS)
of the PNP, pursuant to sections 40 and 41 of RA 8551 and that he took his oath of office before the
President on July 7, 1998. However, this is a mere allegation on the part of public respondents of which
this Court cannot take judicial notice. Furthermore, this issue has not been fully ventilated in the pleadings
of the parties. Therefore, such allegation cannot be taken into consideration by this Court in passing upon
the issues in the present case.
Petitioners also assail the constitutionality of section 4 of RA 8551 insofar as it limits the law enforcement
sector to only one position on the Commission and categorizes the police as being part of the law
enforcement sector despite section 6 of Article XVI of the Constitution which provides that the police force
shall be civilian in character. Moreover, it is asserted by petitioners that the requirement in section 4 that
one of the Commissioners shall be a woman has no rational basis and is therefore discriminatory. They
claim that it amounts to class legislation and amounts to an undue restriction upon the appointing power
of the President as provided under section 16 of Article VII of the Constitution.
[33]

In view of our ruling upon the unconstitutionality of petitioners removal from office by virtue of section 8 of
RA 8551, we find that there is no longer any need to pass upon these remaining constitutional questions.
It is beyond doubt that the legislature has the power to provide for the composition of the NAPOLCOM
since it created such body. Besides, these questions go into the very wisdom of the law, and
unquestionably lie beyond the normal prerogatives of the Court to pass upon.
[34]

WHEREFORE, we grant the petition, but only to the extent of declaring section 8 of RA 8551
unconstitutional for being in violation of the petitioners right to security of tenure. The removal from office
of petitioners as a result of the application of such unconstitutional provision of law and the appointment
of new Commissioners in their stead is therefore null and void. Petitioners herein are entitled to
REINSTATEMENT and to the payment of full backwages to be reckoned from the date they were
removed from office.
[35]

SO ORDERED.

EN BANC
[G.R. No. 133132. February 15, 2001]
ALEXIS C. CANONIZADO, EDGAR DULA TORRES and ROGELIO A. PUREZA, petitioners, vs. HON.
ALEXANDER P. AGUIRRE, as Executive Secretary, HON. EMILIA T. BONCODIN as
Secretary of Budget and Management, JOSE PERCIVAL L. ADIONG, ROMEO L. CAIRME
and VIRGINIA U. CRISTOBAL, respondents.
RESOLUTION
GONZAGA-REYES, J .:
Respondents are seeking a reconsideration of the Courts 25 January 2000 decision, wherein we
declared section 8 of Republic Act No. 8551 (RA 8551) to be violative of petitioners constitutionally
mandated right to security of tenure. As a consequence of our ruling, we held that petitioners removal as
Commissioners of the National Police Commission (NAPOLCOM) and the appointment of new
Commissioners in their stead were nullities and ordered the reinstatement of petitioners and the payment
of full backwages to be computed from the date they were removed from office.
[1]

Some of the errors assigned by the Solicitor General, acting in behalf of respondents, in the motion
for reconsideration have been more than adequately discussed and disposed of by this Court and hence,
do not merit further attention.
Respondents insist that the Court should take judicial notice of then President Estradas appointment
of Alexis C. Canonizado to the position of Inspector General of the Internal Affairs Service (IAS) of the
Philippine National Police (PNP) on 30 June 1998, and of Canonizados acceptance and of his having
qualified for such position by taking his oath on 2 July 1998 before then Department of Interior and Local
Government Undersecretary Ronaldo Puno and again, on 7 July 1998, this time before the President,
since these partake of official acts of the Executive Department, which are matters of mandatory judicial
notice, pursuant to section 1 of Rule 129 of the Rules of Court.
[2]
By accepting such position, respondents
contend that Canonizado is deemed to have abandoned his claim for reinstatement to the NAPOLCOM
since the offices of NAPOLCOM Commissioner and Inspector General of the IAS are incompatible.
Although petitioners do not deny the appointment of Canonizado as Inspector General, they maintain
that Canonizados initiation and tenacious pursuance of the present case would belie any intention to
abandon his former office. Petitioners assert that Canonizado should not be faulted for seeking gainful
employment during the pendency of this case. Furthermore, petitioners point out that from the time
Canonizado assumed office as Inspector General he never received the salary pertaining to such
position, annexing to their comment a certification issued by the Finance Service Office of the PNP
stating this fact.
[3]

Abandonment of an office is the voluntary relinquishment of an office by the holder, with the intention
of terminating his possession and control thereof.
[4]
In order to constitute abandonment of office, it must be
total and under such circumstances as clearly to indicate an absolute relinquishment.
[5]
There must be a
complete abandonment of duties of such continuance that the law will infer a
relinquishment.
[6]
Abandonment of duties is a voluntary act;
[7]
it springs from and is accompanied by
deliberation and freedom of choice.
[8]
There are, therefore, two essential elements of abandonment: first,
an intention to abandon and second, an overt or external act by which the intention is carried into
effect.
[9]

Generally speaking, a person holding a public office may abandon such office by nonuser or
acquiescence.
[10]
Non-user refers to a neglect to use a right or privilege or to exercise an
office.
[11]
However, nonperformance of the duties of an office does not constitute abandonment where
such nonperformance results from temporary disability or from involuntary failure to
perform.
[12]
Abandonment may also result from an acquiescence by the officer in his wrongful removal or
discharge, for instance, after a summary removal, an unreasonable delay by an officer illegally removed
in taking steps to vindicate his rights may constitute an abandonment of the office.
[13]
Where, while
desiring and intending to hold the office, and with no willful desire or intention to abandon it, the public
officer vacates it in deference to the requirements of a statute which is afterwards declared
unconstitutional, such a surrender will not be deemed an abandonment and the officer may recover the
office.
[14]

By accepting the position of Inspector General during the pendency of the present case - brought
precisely to assail the constitutionality of his removal from the NAPOLCOM - Canonizado cannot be
deemed to have abandoned his claim for reinstatement to the latter position. First of all, Canonizado did
not voluntarily leave his post as Commissioner, but was compelled to do so on the strength of section 8 of
RA 8551, which provides
Upon the effectivity of this Act, the terms of office of the current Commissioners are deemed expired
which shall constitute a bar to their reappointment or an extension of their terms in the Commission
except for current Commissioners who have served less than two (2) years of their terms of office who
may be appointed by the President for a maximum terms of two (2) years.
In our decision of 25 January 2000, we struck down the abovequoted provision for being violative of
petitioners constitutionally guaranteed right to security of tenure. Thus, Canonizado harbored no willful
desire or intention to abandon his official duties. In fact, Canonizado, together with petitioners Edgar Dula
Torres and Rogelio A. Pureza, lost no time disputing what they perceived to be an illegal removal; a few
weeks after RA 8551 took effect on 6 March 1998, petitioners instituted the current action on 15 April
1998, assailing the constitutionality of certain provisions of said law. The removal of petitioners from their
positions by virtue of a constitutionally infirm act necessarily negates a finding of voluntary
relinquishment.
The next issue is whether Canonizados appointment to and acceptance of the position of Inspector
General should result in an abandonment of his claim for reinstatement to the NAPOLCOM. It is a well
settled rule that he who, while occupying one office, accepts another incompatible with the first, ipso
facto vacates the first office and his title is thereby terminated without any other act or
proceeding.
[15]
Public policy considerations dictate against allowing the same individual to perform
inconsistent and incompatible duties.
[16]
The incompatibility contemplated is not the mere physical
impossibility of one persons performing the duties of the two offices due to a lack of time or the inability to
be in two places at the same moment, but that which proceeds from the nature and relations of the two
positions to each other as to give rise to contrariety and antagonism should one person attempt to
faithfully and impartially discharge the duties of one toward the incumbent of the other.
[17]

There is no question that the positions of NAPOLCOM Commissioner and Inspector General of the
IAS are incompatible with each other. As pointed out by respondents, RA 8551 prohibits any personnel of
the IAS from sitting in a committee charged with the task of deliberating on the appointment, promotion,
or assignment of any PNP personnel,
[18]
whereas the NAPOLCOM has the power of control and
supervision over the PNP.
[19]
However, the rule on incompatibility of duties will not apply to the case at bar
because at no point did Canonizado discharge the functions of the two offices simultaneously.
Canonizado was forced out of his first office by the enactment of section 8 of RA 8551. Thus, when
Canonizado was appointed as Inspector General on 30 June 1998, he had ceased to discharge his
official functions as NAPOLCOM Commissioner. As a matter of fact, it was on this same date that Leo S.
Magahum and Cleofe M. Factoran were appointed as NAPOLCOM Commissioners by then President
Estrada, to join Romeo L. Cairme and Jose Percival L. Adiong - who were earlier appointed and given a
term extension, respectively, by then President Ramos - thereby completing the appointments of the
four regular members of the NAPOLCOM, pursuant to section 4
[20]
of the amendatory law. Thus, to
reiterate, the incompatibility of duties rule never had a chance to come into play for petitioner never
occupied the two positions, of Commissioner and Inspector General, nor discharged their respective
functions, concurrently.
At this juncture, two cases should be mentioned for their factual circumstances almost nearly
coincide with that of petitioners. The first is Tan v. Gimenez
[21]
wherein petitioner Francisco Tan, a public
school teacher, was required to resign by the Commissioner of Civil Service for gross misconduct. Tan
appealed to the Civil Service Board of Appeals, which reversed the decision of the Commissioner and
acquitted him of the charge. During the pendency of Tans appeal, he worked as a clerk in the Office of
the Provincial Treasurer of Leyte. The Court held that accepting this second position did not constitute
abandonment of his former position because -
[h]e was ordered to resign from the service with prejudice to reinstatement pursuant to the decision of the
Commissioner of Civil Service and by virtue thereof was prevented from exercising the functions of his
position and receiving the corresponding compensation therefor. While thus deprived of his office and
emoluments thereunto appertaining the petitioner had to find means to support himself and his family.
The fact that during the time his appeal was pending and was thus deprived of his office and salary, he
sought and found employment in another branch of the government does not constitute abandonment of
his former position. To deny him the right to collect his back salaries during such period would be
tantamount to punishing him after his exoneration from the charge which caused his dismissal from the
service. x x x
Very similar to Tan is the case of Gonzales v. Hernandez.
[22]
In this 1961 case, petitioner Guillermo
Gonzales sought reinstatement to his former position as attorney-general of the Investigation and Secret
Service Division of the Department of Finance. As in Tan, Gonzales was compelled to resign from office
by the Commissioner of Civil Service, who found him guilty of disreputable conduct. During the pendency
of his appeal with the Civil Service Board of Appeals, petitioner applied for and accepted employment as
an emergency helper in the Government Service Insurance System. The Board of Appeals eventually
modified the Commissioners finding by lowering the penalty from removal from office to suspension of
two months without pay. In response to the question of whether Gonzales was deemed to have
abandoned his position by accepting another position in the GSIS, the Court held that
Plaintiffs position in the GSIS was temporary in nature, during the period of an emergency only. He had
the right to live during the pendency of his appeal and naturally the right to accept any form of
employment. In any case as the court below found, this temporary employment is not incompatible with
his old position; he could resign this temporary position any time as soon as his case has been definitely
decided in his favor. x x x
Although the Court found that the second position accepted by Gonzales was only temporary in nature,
the rule on incompatibility of duties makes no such distinction between a permanent or temporary second
office. Moreover, the Court still invoked the rationale previously cited in Tan - that petitioners right to
live justified his acceptance of other employment during the pendency of his appeal. The Court held that
Gonzaless second position was not incompatible with the first since he could resign from the second
position when the case is finally decided in his favor and before he re-assumes his previous office.
As in the Tan and Gonzales cases, Canonizado was compelled to leave his position as
Commissioner, not by an erroneous decision, but by an unconstitutional provision of law. Canonizado,
like the petitioners in the above mentioned cases, held a second office during the period that his appeal
was pending. As stated in the Comment filed by petitioners, Canonizado was impelled to accept this
subsequent position by a desire to continue serving the country, in whatever capacity.
[23]
Surely, this
selfless and noble aspiration deserves to be placed on at least equal footing with the worthy goal of
providing for oneself and ones family, either of which are sufficient to justify Canonizados acceptance of
the position of Inspector General. A contrary ruling would deprive petitioner of his right to live, which
contemplates not only a right to earn a living, as held in previous cases, but also a right to lead a useful
and productive life. Furthermore, prohibiting Canonizado from accepting a second position during the
pendency of his petition would be to unjustly compel him to bear the consequences of an unconstitutional
act which under no circumstance can be attributed to him. However, before Canonizado can re-assume
his post as Commissioner, he should first resign as Inspector General of the IAS-PNP.
Respondents also raise some questions regarding the execution of the Courts decision. They cite
the fact that because there are three petitioners who were ordered reinstated and four persons currently
acting as NAPOLCOM commissioners, namely Romeo L. Cairme, Jose Percival L. Adiong,
[24]
Leo S.
Magahum and Cleofe M. Factoran,
[25]
it is unclear who of the current commissioners will be replaced by
petitioners. Respondents point out that the execution of the decision becomes particularly complicated
when it comes to Adiong, who was a member of the NAPOLCOM under Republic Act No. 6975 (RA
6975), but was removed therefrom and subsequently re-appointed for a two-year term, pursuant to RA
8551. According to respondents, given Adiongs peculiar situation, it is unclear whether the latter should
also be entitled to reinstatement as a result of the assailed decision.
[26]
Adiong, on his own behalf, filed a
Motion for Clarification
[27]
with this Court contending that, if the Court should uphold the declaration of
nullity of section 8 of RA 8551, then he is also entitled to reinstatement to the NAPOLCOM pursuant to
his appointment under RA 6975.
An unconstitutional act is not a law; it confers no rights, imposes no duties, and affords no
protection.
[28]
Therefore, the unavoidable consequence of the Courts declaration that section 8 of RA 8551
violates the fundamental law is that all acts done pursuant to such provision shall be null and void,
including the removal of petitioners and Adiong from their positions in the NAPOLCOM and the
appointment of new commissioners in their stead. When a regular government employee is illegally
dismissed, his position does not become vacant and the new appointment made in order to replace him is
null and void ab initio.
[29]
Rudimentary is the precept that there can be no valid appointment to a non-
vacant position.
[30]
Accordingly, Adiongs appointment on 11 March 1998 for a term of two years, pursuant
to section 8 of RA 8551, is null and void. However, he should now be permitted to enjoy the remainder of
his term under RA 6975. Therefore, based on our foregoing disquisition, there should no longer be any
doubt as to the proper execution of our 25 January 2000 decision all the Commissioners appointed
under RA 8551 should be removed from office, in order to give way to the reinstatement of petitioners and
respondent Adiong.
Respondents insist that the present case is similar to a quo warranto proceeding since petitioners
prayed for the removal of the incumbent commissioners and for their reinstatement. Therefore, they claim
that Magahum and Factoran should have been impleaded as respondents and given the opportunity to
defend their positions.
[31]
We disagree. First and foremost, the petition filed before this Court sought a
ruling on the constitutionality of sections 4 and 8 of RA 8551. The inevitable consequence of this Courts
declaration that section 8 of said law is unconstitutional is the removal of Adiong, Cairme, Magahum and
Factoran from the NAPOLCOM and the reinstatement thereto of petitioners, including Adiong, although
under his original appointment under RA 6975. As discussed earlier, an unconstitutional law is not a law
at all; it is in legal contemplation, as inoperative as though it had never been passed. There being no
vacancy created in the first place in the office of the NAPOLCOM, the appointments of Magahum,
Factoran, Cairme and Adiong pursuant to RA 8551 are legal nullities, which cannot be the source of any
rights.
[32]
It is noted that Magahum and Factoran were appointed after more than two months from the time
the present petition was filed with the Court, which explains why they were originally not impleaded. Had
they been interested in defending the validity of their appointments, Magahum and Factoran could have
filed a motion to intervene with this Court. It is highly improbable that they were not aware of the present
petition since their colleagues, Cairme and Adiong, were respondents therein. The fact that they did not
intervene could only mean that they were willing to be bound by the Courts decision in this case. In
addition, it is noted that respondents did not raise this issue when they filed their comment to the petition
on 21 September 1998, even though at that time both Magahum and Factoran were already appointed,
albeit invalidly, to the NAPOLCOM. Only after the promulgation of our 25 January 2000 decision did
respondents belatedly insist that Magahum and Factoran should be made parties to this case. It is not for
a party to participate in the proceedings, submit his case for decision and accept the judgment if it is
favorable to him but attack it for any reason when it is adverse.
[33]

In the event that the Court should affirm its decision, respondents pray that the Court apply the ruling
in Mayor v. Macaraig
[34]
which provided that
In G.R. No. 91547, and G.R. No. 91730, the removal of petitioners Rosario G. Encarnacion, Daniel M.
Lucas, Jr., Ceferino E. Dulay, and Conrado Maglaya as Commissioners of the NLRC is ruled
unconstitutional and void; however, to avoid displacement of any of the incumbent Commissioners now
serving, it not appearing that any of them is unfit or has given cause for removal, and conformably to the
alternative prayer of the petitioners themselves, it is ORDERED that said petitioners be paid all salaries,
benefits and emoluments accruing to them for the unexpired portions of their six-year terms and allowed
to enjoy retirement benefits under applicable laws, pursuant to RA No. 910 and this Courts Resolution
in Ortiz v. Commission on Elections, G.R. No. 79857, 161 SCRA 812; x x x
We cannot grant respondents prayer for the application of the abovequoted dispositive portion
of Mayor in G.R. No. 91547 and G.R. No. 91730 to the case at bar based on one crucial point of
distinction unlike in Mayor, petitioners herein did not make any alternative prayer for the payment of the
salaries, benefits, and emoluments accruing to them for the unexpired portions of their terms in lieu of
reinstatement. Contrary to respondents contention, the general prayer of petitioners for such other
reliefs just and equitable cannot be deemed as an alternative to their specific prayer for reinstatement.
We agree with petitioners view that any remedy necessarily included in this general phrase should be
consistent with the specific prayers of petitioners.
Finally, respondents contend that the re-appointment of petitioners under RA 6975 violates section
16
[35]
of such law.
[36]
Once again, respondents did not raise this issue in their comment to the petition, and
are therefore estopped from doing so at this late stage. Moreover, the validity of the appointments under
RA 6975 was never the issue in this case and accordingly, the Court will not pass upon the same.
WHEREFORE, respondents motion for reconsideration is hereby DENIED. However, it is hereby
clarified that our 25 January 2000 decision mandates the reinstatement of Jose Percival L. Adiong to the
NAPOLCOM, together with petitioners herein, pursuant to his appointment under RA 6975.
SO ORDERED.

Canonizado v. Aguirre
323 SCRA 312
FACTS: Petitioners were incumbent commissioners of the National Police Commission when
Republic Act. No. 8851, otherwise known as the PNP Reform and Reorganization Act of 1998,
took effect. Section 8 of Republic Act. No. 8851 provided that the terms of office of the
incumbent commissioners were deemed expired. Petitioners claimed that this violated their
security of tenure.

HELD: Petitioners are members of the civil service. Republic Act No. 8551 did not expressly
abolish the positions of petitioners. Under RA No. 6975, the National Police Commission was
under the Department of Interior and Local Government, while under Republic Act. No. 8551 it
is made an agency attached to the Department of Interior and Local Government. The
organizational structure and the composition of the National Police Commission remain
essentially the same except for the addition of the Chief of PNP as ex-officio member. The
powers and duties of the National Police Commission remain basically unchanged. No bona
fide reorganization of the NPC having been mandated by Congress and insofar as RA 8851
declares the office of the petitioner as expired resulting in their separation from office, it is
tantamount to removing civil service employees from office without legal cause therefore, it must
be struck down for being constitutionally infirm.