DARIO vs MISON

August 8, 1989
FACTS: In 1986, Cory Aquino promulgated Proclamation No. 3,
"DECLARING A NATIONAL POLICY TO IMPLEMENT THE
REFORMS MANDATED BY THE PEOPLE..., the mandate of
the people to Completely reorganize the government.
In January 1987, she promulgated EO 127, "REORGANIZING
THE MINISTRY OF FINANCE".
Among other offices,
Executive Order No. 127 provided for the reorganization of the
Bureau of Customs and prescribed a new staffing pattern therefor.
In February 1987, a brand new constitution was adopted. On
January 1988, incumbent Commissioner of Customs Salvador
Mison issued a Memorandum, in the nature of "Guidelines on the
Implementation of Reorganization Executive Orders," prescribing
the procedure in personnel placement. It also provided that by
February 1988, all employees covered by EO 127 and the grace
period extended to the Bureau of Customs by the President on
reorganization shall be: a) informed of their re-appointment, or b)
offered another position in the same department or agency, or c)
informed of their termination.
Mison addressed several notices to various Customs officials
stating that they shall continue to perform their respective duties
and responsibilities in a hold-over capacity, and that those
incumbents whose positions are not carried in the new
reorganization pattern, or who are not re-appointed, shall be
deemed separated from the service. A total of 394 officials and
employees of the Bureau of Customs were given individual
notices of separation. They filed appeals with the CSC.
On June 1988, the CSC promulgated its ruling ordering the
reinstatement of the 279 employees, the 279 private respondents
in G.R. No. 85310. Commissioner Mison, represented by the
Solicitor General, filed a motion for reconsideration, which was
denied. Commissioner Mison instituted certiorari proceedings.
On June 10, 1988, Republic Act No. 6656, "AN ACT TO
PROTECT THE SECURITY OF TENURE OF CIVIL SERVICE
OFFICERS AND EMPLOYEES IN THE IMPLEMENTATION
OF GOVERNMENT REORGANIZATION," was signed into law
containing the provision:
Sec. 9. All officers and employees who are
found by the Civil Service Commission to
have been separated in violation of the
provisions of this Act, shall be ordered
reinstated or reappointed as the case may be
without loss of seniority and shall be entitled
to full pay for the period of separation. Unless
also separated for cause, all officers and
employees, including casuals and temporary
employees, who have been separated pursuant
to reorganization shall, if entitled thereto, be
paid the appropriate separation pay and
retirement and other benefitsxxx
On June 23, 1988, Benedicto Amasa and William Dionisio,
customs examiners appointed by Commissioner Mison pursuant
to the ostensible reorganization subject of this controversy,
petitioned the Court to contest the validity of the statute. On
October 21, 1988, thirty-five more Customs officials whom the
Civil Service Commission had ordered reinstated by its June 30,
1988 Resolution filed their own petition to compel the
Commissioner of Customs to comply with the said Resolution.

Cesar Dario was one of the Deputy Commissioners of the Bureau

of Customs until his relief on orders of Commissioner Mison on
January 26, 1988. In essence, he questions the legality of his
dismissal, which he alleges was upon the authority of Section 59
of Executive Order No. 127 (SEC. 59. New Structure and Pattern.
Upon approval of this Executive Order, the officers and
employees of the Ministry shall, in a holdover capacity, continue
to perform their respective duties and responsibilities and receive
the corresponding salaries and benefits unless in the meantime
they are separated from government service pursuant to Executive
Order No. 17 (1986) or Article III of the Freedom Constitution.
Incumbents whose positions are not included therein or who are
not reappointed shall be deemed separated from the service.
Those separated from the service shall receive the retirement
benefits to which they may be entitled.
A provision he claims the Commissioner could not have legally
invoked. He avers that he could not have been legally deemed to
be an "incumbent whose position is not included therein or who is
not reappointed to justify his separation from the service. He
contends that neither the Executive Order (under the second
paragraph of the section) nor the staffing pattern proposed by the
Secretary of Finance abolished the office of Deputy
Commissioner of Customs, but, rather, increased it to three. Nor
can it be said, so he further maintains, that he had not been
"reappointed" (under the second paragraph of the section)
because "reappointment therein presupposes that the position to
which it refers is a new one in lieu of that which has been
abolished or although an existing one, has absorbed that which
has been abolished."
He claims, finally, that under the
Provisional Constitution, the power to dismiss public officials
without cause ended on February 25, 1987, and that thereafter,
public officials enjoyed security of tenure under the provisions of
the 1987 Constitution.
Vicente Feria asserts his security of tenure and that he cannot be
said to be covered by Section 59 of Executive Order No. 127,
having been appointed on April 22, 1986 - during the effectivity
of the Provisional Constitution. He adds that under Executive
Order No. 39, "ENLARGING THE POWERS AND
FUNCTIONS OF THE COMMISSIONER OF CUSTOMS," the
Commissioner of Customs has the power "to appoint all Bureau
personnel, except those appointed by the President," and that his
position, which is that of a Presidential appointee, is beyond the
control of Commissioner Mison for purposes of reorganization.
Provisions of Section 16, Article XVIII (Transitory Provisions)
explicitly authorize the removal of career civil service employees
"not for cause but as a result of the reorganization pursuant to
Proclamation No. 3 dated March 25, 1986 and the reorganization
following the ratification of this Constitution. For this reason,
Mison posits, claims of violation of security of tenure are
allegedly no defense. That contrary to the employees' argument,
Section 59 of Executive Order No. 127 is applicable (in
particular, to Dario and Feria), in the sense that retention in the
Bureau, under the Executive Order, depends on either retention of
the position in the new staffing pattern or reappointment of the
incumbent, and since the dismissed employees had not been
reappointed, they had been considered legally separated.
Moreover, Mison proffers that under Section 59 incumbents are
considered on holdover status, "which means that all those
positions were considered vacant."

The Commissioner's two petitions are direct challenges to three

rulings of the Civil Service Commission: (1) the Resolution,
dated June 30, 1988, reinstating the 265 customs employees
above-stated; (2) the Resolution, dated September 20, 1988,
denying reconsideration; and (3) the Resolution, dated November
16, 1988, reinstating five employees.
ISSUE: WON Section 16 of Article XVIII of the 1987
Constitution is a grant of a license upon the Government to
remove career public officials it could have validly done under an
"automatic"-vacancy-authority and to remove them without
rhyme or reason. (NO)
RATIO: The State can still carry out reorganizations provided
that it is done in good faith. Removal of career officials without
cause cannot be done after the passing of the 1987 Constitution.
Section 16 Article XVIII, of the 1987 Constitution:
Sec. 16. Career civil service employees
separated from the service not for cause but as
a result of the reorganization pursuant to
Proclamation No. 3 dated March 25, 1986 and
the reorganization following the ratification of
this Constitution shall be entitled to
appropriate separation pay and to retirement
and other benefits accruing to them under the
laws of general application in force at the time
of their separation. In lieu thereof, at the option
of the employees, they may be considered for
employment in the Government or in any of its
subdivisions, instrumentalities, or agencies,
including government-owned or controlled
corporations and their subsidiaries. This
provision also applies to career officers whose
resignation, tendered in line with the existing
policy.
The above is a mere recognition of the right of the Government to
reorganize its offices, bureaus, and instrumentalities. Under
Section 4, Article XVI, of the 1935 Constitution. Transition
periods are characterized by provisions for "automatic" vacancies.
They are dictated by the need to hasten the passage from the old
to the new Constitution free from the "fetters" of due process and
security of tenure.
Since 1935, transition periods have been characterized by
provisions for "automatic" vacancies. We take the silence of the
1987 Constitution on this matter as a restraint upon the
Government to dismiss public servants at a moment's notice. If
the present Charter envisioned an "automatic" vacancy, it should
have said so in clearer terms. Plainly the concern of Section 16 is
to ensure compensation for "victims" of constitutional revamps whether under the Freedom or existing Constitution - and only
secondarily and impliedly, to allow reorganization.

that we are merely continuing what the revolutionary Constitution

of the Revolutionary Government had started. We are through
with reorganization under the Freedom Constitution - the first
stage. We are on the second stage - that inferred from the
provisions of Section 16 of Article XVIII of the permanent basic
document.
After February 2, 1987, incumbent officials and employees have
acquired security of tenure.
The present organic act requires that removals "not for cause"
must be as a result of reorganization. As we observed, the
Constitution does not provide for "automatic" vacancies. It must
also pass the test of good faith. 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.
The Court finds that Commissioner Mison did not act in good
faith since after February 2, 1987 no perceptible restructuring of
the Customs hierarchy - except for the change of personnel - has
occurred, which would have justified (all things being equal) the
contested dismissals. There is also no showing that legitimate
structural changes have been made - or a reorganization actually
undertaken, for that matter - at the Bureau since Commissioner
Mison assumed office, which would have validly prompted him
to hire and fire employees.
With respect to Executive Order No. 127, Commissioner Mison
submits that under Section 59 thereof, "Those incumbents whose
positions are not included therein or who are not reappointed shall
be deemed separated from the service." He submits that because
the 394 removed personnel have not been "reappointed," they are
considered terminated. To begin with, the Commissioner's
appointing power is subject to the provisions of Executive Order
No. 39. Under Executive Order No. 39, the Commissioner of
Customs may "appoint all Bureau personnels except those
appointed by the President." Thus, with respect to Deputy
Commissioners Cesar Dario and Vicente Feria, Jr., Commissioner
Mison could not have validly terminated them, they being
Presidential appointees.

In order to be entitled to the benefits granted under Section 16 of

Article XVIII of the Constitution of 1987, two requisites, one
negative and the other positive, must concur, to wit: 1. The
separation must not be for cause, and 2. The separation must be
due to any of the three situations mentioned.

That Customs employees, under Section 59 of Executive Order

No. 127 had been on a mere holdover status cannot mean that the
positions held by them had become vacant. The occupancy of a
position in a holdover capacity was conceived to facilitate
reorganization and would have lapsed on 25 February 1987
(under the Provisional Constitution), but advanced to February 2,
1987 when the 1987 Constitution became effective. After the said
date the provisions of the latter on security of tenure govern.

By its terms, the authority to remove public officials under the

Provisional Constitution ended on February 25, 1987, advanced
by jurisprudence to February 2, 1987. It can only mean, then, that
whatever reorganization is taking place is upon the authority of
the present Charter, and necessarily, upon the mantle of its
provisions and safeguards. Hence, it cannot be legitimately stated

DISPOSITIVE: Resolutions of the CSC are affirmed. Petitions

of employees are GRANTED. Petitions of Mison are
DISMISSED. Commissioner of Customs is ordered to
REINSTATE employees he removed and those he appointed as
replacements are ordered to VACATE their posts subject to
payment of lawful benefits.

360 SCRA 718 Law on Public Officers Security of Tenure in a

Public Office No Vested Right to a Public Office Power to
Create and Destroy Public Office
During the time of President Corazon Aquino, she created the
Economic Intelligence and Investigation Bureau (EIIB) to
primarily conduct anti-smuggling operations in areas outside the
jurisdiction of the Bureau of Customs. In the year 2000, President
Estrada issued an order deactivating the EIIB. He subsequently
ordered the employees of EIIB to be separated from the
service. Thereafter, he created the Presidential Anti-Smuggling
Task Force Aduana, which EIIB employees claim to be
essentially the same as EIIB. The employees of EIIB, through the
Buklod ng Kawaning EIIB, invoked the Supreme Courts power
of judicial review in questioning the said orders. EIIB employees
maintained that the president has no power to abolish a public
office, as that is a power solely lodged in the legislature; and that
the abolition violates their constitutional right to security of
tenure.
ISSUE: Whether or not the petition has merit.
HELD: No. It is a general rule that the power to abolish a public
office is lodged with the legislature. The exception is when it
comes to agencies, bureaus, and other offices under the executive
department, the president may deactivate them pursuant to control
power over such offices, unless such office is created by the
Constitution. This is also germane to the presidents power to
reorganize the Office of the President. Basis of such power also
has its roots in two laws i.e., PD 1772 and PD 1416. These
decrees expressly grant the President of the Philippines the
continuing authority to reorganize the national government,
which includes the power to group, consolidate bureaus and
agencies, to abolish offices, to transfer functions, to create and
classify functions, services and activities and to standardize
salaries and materials.
Also, it cannot be said that there is bad faith in the abolition of
EIIB. EIIB allocations has always exceeded P100 million per
year. To save the government some money, it needed to abolish it
and replace it with TF Aduana which has for its allocation just
P50 million. Further, TYF Aduana is invested more power that
EIIB never had, i.e., search and seizure and arrest.
Lastly, EEIB employees right to security of tenure is not
violated. Since there is no bad faith in the abolition of EIIB, such
abolition is not infirm. Valid abolition of offices is neither
removal nor separation of the incumbents. If the public office
ceases to exist, there is no separation or dismissal to speak of.
Indeed, there is no such thing as an absolute right to hold office.
Except 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 or its salary.
Larin vs. Executive Secretary
Facts: Sandiganbayan convicted Aquilino Larin, Assistant
Commissioner of the Excise Tax Service of BIR for grave
misconduct and imposed the penalty of dismissal. M.O. 164 was
issued by the President which provides for the creation of an
executive committee to investigate the administrative charge
against Larin. Petitioner was directed to file his position paper.
Larin filed his position paper alleging that he is not
administratively liable or criminally culpable of the charges. The
President issued E.O. 132 which mandates the streamlining of
BIR wherein some positions and functions are abolished,
renamed, decentralized or transferred to another office. The
Excise Tax Service of which is Larin was Assistant
Commissioner was one of those offices abolished.

Issue: WN the President have the power to reorganize the BIR or

to issue the questioned E.O. 132.
Ruling: The President is authorized to effect organizational
changes including the creation of offices in the department or
agency concerned. According to Sec 48 of RA 7645 The heads of
departments, bureaus and offices and agencies are hereby directed
to identify their respective activities which are no longer essential
in the delivery of public services and which may be scaled down,
phased out or abolished, subject to civil rules and regulations.
Actual scaling down, phasing out or abolition of the activities
shall be effective pursuant to Circulars or Orders issued for the
purpose by the Office of the President. P.D. 1772 which amended
P.D. 1416expressly grant the President of the Philippines the
continuing authority to reorganize the national government,
which includes the power to group, consolidate bureaus and
agencies, to abolish offices, to transfer functions, to create and
classify functions, services and activities and to standardize
salaries and materials. The validity of these two decrees are
unquestionable. The 1987 Constitution clearly provides that "all
laws, decrees, executive orders, proclamations, letters of
instructions and other executive issuances not inconsistent with
this Constitution shall remain operative until amended, repealed
or revoked." So far, there is yet no law amending or repealing
said decrees.

Bagaoisan vs. National Tobacco

Facts: President Estrada issued E.O 29 which provides for the
mandating the streamlining of NTA and issued E.O 36 thereafter
amending E.O. 29 providing for the increasing of the staffing
pattern from 400 to not exceeding 750 positions affected. NTA
prepared and adopted a New Organization Structure and Staffing
Position (OSSP). Petitioners are from NTA Batac, Ilocos Norte
who received individual notices of termination. They filed a
position for certiorari, prohibition and mandamus. RTC ordered
NTA to appoint petitioners in the new OSSP to positions similar
or comparable to their respective of former assignments.
Issue: WN the President, through the issuance of an Executive
Order can validly carry out the reorganization of the NTA.
Ruling: the President, based on existing laws, had the authority to
carry out a reorganization in any branch or agency of the
executive department. The general rule has always been that the
power to abolish a public office is lodged with the legislature.
This proceeds from the legal precept that the power to create
includes the power to destroy. A public office is either created by
the Constitution, by statute, or by authority of law. Thus, except
where the office was created by the Constitution itself, it may be
abolished by the same legislature that brought it into existence.
The exception, however, is that as far as bureaus, agencies or
offices in the executive department are concerned, the Presidents
power of control may justify him to inactivate the functions of a
particular office, or certain laws may grant him the broad
authority to carry out reorganization measures. Section 48 of RA
7645 provides that actual scaling down, phasing out or abolition
of the activities shall be effected pursuant to Circulars or Orders
issued for the purpose by the Office of the President.

Larin vs. Executive Secretary

GR. No. L- 112745, October 16, 1997

FACTS:
The Sandiganbayan convicted petitioner Aquilino T.
Larin, Revenue Specific Tax Officer, then Assistant
Commissioner of the Bureau of Internal Revenue and his coaccused of the crimes of violation of some provisions of the
National Internal Revenue Code and R.A 3019. His conviction
was reported to the President of Philippines through a
memorandum. Sr. Deputy Executive Secretary Leonardo
Quisumbing acting under the authority of the President issued
Memorandum Order No. 164 which provides for the creation of
an executive Committee to investigate the administrative charge
against petitioner. The petitioner questioned the administrative
complaint filed against him.
Meanwhile, the President issued E.O. No. 132 which
mandates for the streamlining of the Bureau of Internal Revenue.
Under said order, some positions and functions are either
abolished, renamed, decentralized or transferred to other offices,
while other offices are also created. The Excise Tax Service, of
which the petitioner was the Assistant Commissioner, was one of
those offices that was abolished. Consequently, under A.O. No.
101, petitioner was found guilty of grave misconduct in the
administrative charge and imposed upon him the penalty of
dismissal with forfeiture of his leave credits and retirement
benefits including disqualification for reappointment in the
government service. Petitioner questioned his unlawful removal
from office. Petitioner challenged the authority of the President to
dismiss him from office. He argued that in so far as presidential
appointees who are Career Executive Service Officers, the
President exercises only the power of control not the power to
remove. He likewise assailed that he was removed as a result of
the reorganization made by the Executive Department in the BIR
pursuant to E.O. No. 132. He claimed that there is yet no law
enacted by Congress which authorizes the reorganization by the
Executive Department of executive agencies, particularly the
BIR. On the other hand, the respondents contended that since
petitioner is a presidential appointee, he falls under the
disciplining authority of the President. Respondents claimed that
he was not dismissed by virtue of EO 132 but because he was
found guilty of grave misconduct in the administrative cases filed
against him.
ISSUES:
1. Is the President has the power to discipline the
petitioner?
2. Is the petitioners acquittal in the criminal case
entails the dismissal of the administrative charge
against him?
3. Is the reorganization of the BIR pursuant to EO No.
132 tainted with bad faith?
DECISION:
1. YES
Petitioner is a presidential appointee who
belongs to career service of the Civil Service. Being a
presidential appointee, he comes under the direct
disciplining authority of the President. This is in line
with the well settled principle that the power to remove
is inherent the power to appoint conferred to the
President by Sec. 16, Art. VII of the Constitution. Thus,
Memorandum Order No. 164, which created a
committee to investigate the administrative charge
against petitioner, was issued pursuant to the power of
removal of the President.

This power of removal, however, is not an

absolute one which accepts no reservation. Under the
Administrative Code of 1987, career service is
characterized by the existence of security of tenure, as
contra-distinguished from non-career service whose
tenure is co-terminus with that of the appointing
authority or subject to his pleasure, or limited to a
period specified by law or to the duration of a particular
project for which purpose the employment was made.
The fact that petitioner is a presidential appointee does
not give the appointing authority the license to remove
him at will or at his pleasure for it is admitted fact that
he is likewise a career service officer who under the law
is the recipient of tenurial protection, thus, may only be
removed for a cause and in accordance with procedural
due process.
2.

YES

Where the very basis of the administrative

case against petitioner is his conviction in the criminal
action which was later on set aside by this Court upon a
categorical and clear finding that the acts for which he
was administratively held liable are not unlawful and
irregular, the acquittal of the petitioner in the criminal
case necessarily entails the dismissal of the
administrative action against him, because in such a
case, there is no more basis nor justifiable reason to
maintain the administrative suit.
3.

YES

While the Presidents power to reorganize

cannot be denied, this does not mean however that the
reorganization itself is properly made in accordance
with law. Well-settled is the rule that reorganization is
regarded as valid provided it is pursued in good faith.
Thus, in Dario vs. Mison, this Court has had the
occasion to clarify that: As a general rule, a
reorganization is carried out in good faith if it is for
the purpose of economy or to make the bureaucracy
more efficient. In that event no dismissal or separation
actually occurs because the position itself ceases to
exist. And in that case the 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.