REPUBLIC OF THE PHILIPPINES

CIVIL SERVICE COMMISSION

Constitution Hills, Quezon City

_______________________________,
Appellant,
-versus-

Case No.

THE EXECUTIVE SECRETARY

EDUARDO ERMITA,
Appellee.

Prefatory Statement

Integrity, competence, love of country and dedication to

public service are qualities expected of all public servants.

Yet,

those who possess these are often not only unrewarded, but also
punished for standing up for their principles.
where

politics

can

kill

public

servants

In a government
dedication

and

enthusiasm for service, the principles of merit, fitness, and

security of tenure as well as the rules of the Civil Service
Commission are often on a collision course with the demands of
politics and politicians.

This Appeal by Juan Miguel Luz is a classic case of a good

and honest civil servant, a Career Service Executive Officer, who
suffers the punishment of termination and later, a transfer, from
1

no less than the Office of the President for refusing to perform an

unlawful act and for doing what he believed was right.

The Appellant files this Appeal in the fervent hope that the
resolution of the issues in this case will enrich law and
jurisprudence, instill belief in justice and fairness and inspire the
few who remain vigilant in their fight against corruption.

The Case

This is an appeal from the Order of the Honorable Executive

Secretary reassigning Appellant Juan Miguel Luz, a Career Service
Executive Officer and Undersecretary, Finance & Administration of
the Department of Education (hereafter called DepED), to the
Department of Labor and Employment (hereafter called DOLE).

Timeliness of the Appeal

The Appellant received a copy of the Memorandum of the

Appellee Executive Secretary Eduardo Ermita (hereafter called
Executive Secretary) on 04 October 2005, hence this Appeal is
being filed on time. A certified true copy of this memorandum is
attached as Annex A.

The Parties

APPELLANT Juan Miguel Luz (hereafter called Appellant)

is a Filipino, of legal age, residing at 326 St. Joseph Street, North
Concha Cruz Circle, B.F. Executive Homes, Las Pinas City. He is a
Career Service Officer (CESO) and is fully qualified for the position
of Undersecretary of Education (Finance & Administration) which
he is currently occupying.

A certified true copy of his CESO

certification is attached as Annex B. Appellant may be served

with copies of pleadings, notices, orders and other issuances of
this Honorable Office through undersigned counsel.

APPELLEE Eduardo Ermita (hereafter referred to as the

Appellee) is the Executive Secretary who signed the order
reassigning the Appellant to the DOLE.

Facts of the Case

The Appellants
Qualifications

1.

Appellant has sterling qualifications for the position of

Undersecretary of the DepED.

His previous employment with

Government prior to his position in the DepED was with the

Presidential Management Staff (Office of the President) during the

Administration of President Corazon C. Aquino.

Outside of

government, the Appellant was the associate director of Philippine

Business for Social Progress (hereafter referred to as PBSP), the
largest social development NGO in the country, and in was a
professor at the Asian Institute of Management, one of Asias
leading business schools.

2.

As the associate director of PBSP from 1985-87 and

1993-95, he headed training, research and programs development

and organized and led the team that drafted the management plan
for the Third Elementary Education Project (TEEP) of the
Department of Education, Culture and Sports funded by the World
Bank.

3. In 1987, he was appointed Presidential Staff Director of

the Presidential Management Staff in the Office of the Presient
(hereafter referred to as PMS) during the administration of
President Corazon C. Aquino, where he stayed until mid-1991. As
head of the Regional Operations Group and the Political Affairs
Group, he worked on a number of major projects including local
government autonomy and the establishment of the Autonomous
Region in Muslim Mindanao.

Because of his experience with

PBSP, he was tasked with setting up the newly created Presidents

Social Fund (PSF), the source of the post-dated checks that figured
in the events antecedent to the Appellants termination and
4

subsequent reassignment from the DepED to the Department of

Labor and Employment (DOLE).

4. In January 1991, Appellant became a Career Executive

Service Officer upon the general instruction of President Aquino
that all presidential appointees secure a CESO eligibility and rank
to shield them from the vagaries of

political processes and

changes in presidential administrations and their particular

concerns related to appointments. (See Annex B hereof.)

5. After four years in government, Appellant returned to the

private sector. From 1995-97, he was vice president for corporate
affairs at the Far East Bank and Trust Company. From 1998 to
February 2002, he served as director of operations of the APEC
Business Advisory Council, the private sector advisory body to the
APEC Leaders. Concurrently, he was also an Associate Professor at
the Asian Institute of Management from 1997 to 2002.

6. As part of his community work, the Appellant served as

executive director of the Philippine National Museum Foundation,
a private sector foundation that raised funds for the renovation of
the National Museum in time for the countrys Centennial
celebrations in 1998.

He also served as trustee of the Heritage

Conservation Society of the Philippines for two terms and is

currently a trustee of Museo Pambata ng Pilipinas.
5

7. With a Bachelors Degree in Liberal Arts from St. Marys

College of California1 , a La Salle Christian Brothers institution,
and a Masters Degree in Public Administration from the John F.
Kennedy School of Government, Harvard University, 2 Appellant has
expertise in the fields of community development, government
policy, business strategy and administration, and education
management. This is the reason why former DepED Secretary
Edilberto

de

Jesus

invited

him

to

rejoin

government

as

Undersecretary of Education in late 2002. Appellant accepted the

offer because he wanted to serve his country by contributing to
reforms in the DepED, which in the mid-to-late-1990s had the
reputation of being one of the most

corrupt

agencies in

government.

8. Appellant reactivated his CESO rank as confirmed by the

Career Executive Service Board. He took charge of the Finance and
Administration of the DepED in November 2002.

After Secretary

de Jesus left the DepED in August 2004, the Appellant continued

to serve under former Secretary Florencio B. Abad and OIC
Secretaries Ramon C. Bacani and Fe A. Hidalgo, successively.

Appellants contributions
to reform in the DepED
He graduated magna cum laude and garnered two awards for academic
excellence James L. Hagerty Award (School of Liberal Arts) and St. Thomas
Aquinas Award (Integral Program).
2
He was an Edward S. Mason Fellow in International Development.
1

9.

Appellant carried out major reforms in the areas of

finance and management systems. Notable among these were:

Providing

direct

funding

releases

from

the

National Treasury to fiscally-autonomous high

schools and school divisions through the Direct
Release System;

Establishing the DepED Procurement Service;

Drafting of a new textbook policy, as well as

designing and organizing the National Textbook
Delivery Program to ensure the timely delivery of
over 50 million quality textbooks to close to
42,000 elementary schools;

Decentralizing the payroll service of elementary

school teachers;

Fixing the automatic payroll deduction system;

Re-engineering

the

Departments

Provident

Funds3 in order to have a professional system

Forming Brigada Eskwela (National Schools

Maintenance Week), a project undertaking minor
repairs

of schools

stakeholders,
government
Brigada

the
units

Eskwela

involving
local
and

various

community,
the

private

significantly

school
local
sector.

minimized

The Department Provident Fund has a nationwide portfolio of P1.1 Billion in

16 regions)
3

problems encountered during school openings

10.

Since 2002, education reforms, both in terms of

financial management and support to academic programs of

schools, have helped establish the image of the Department of
Education as one of the five least corrupt national agencies in the
Social Weather Stations annual Enterprise Survey. This has been
cause for great pride in DepED considering that it was formerly
one of most corrupt agencies in the survey prior to that period. 4

11. In sum, the Appellant is a highly-educated, competent,

honest, and dedicated public servant. His knowledge, competence
and integrity enabled him to generate significant financial and
material support from the private sector for schools under the
Departments Adopt-a-School program.

12. Then came a defining moment in the Appellants career

in the DepED. His integrity was put to a test when he was asked
to accept post-dated checks amounting to P 20 Million from the
Office of the President purportedly intended for a scholarship
program of a congressman. Believing that these were against
government accounting and auditing rules as they were devoid of

During the entire PGMA Administration, no procurement, personnel or

financial scandal has rocked the Department. The lone scandal attributed to
the Department involved a controversial error-laden textbook procured a
decade ago but which are still in the schools. The Department recalled the
textbook and put in place a tighter textbook evaluation process to prevent
such errors from recurring in public school textbooks in the future.
4

documentation, he refused to do what he considered as highly

irregular and contrary to law. On September 9, 2005, the Appellant
decided to do the right thing and returned the checks to
Malacanang.

As the events unfolded, Malacanang lost no time in

punishing him.

Terminated by
Malacanang

13. Appellants worries started on 13 September 2005, when

his office received a letter from the Executive Secretary that read:
We wish to thank you for your services as Undersecretary,
Department of Education, effective immediately.

A copy of this

letter is attached as Annex C. Stunned by what was apparently

a termination letter, he sent a query to the Civil Service
Commission on 20 September 2005 asking whether or not he was
terminated and if such was proper. A copy of this letter is attached
as Annex D.

14.

On 21 September 2005 Civil Service Commission

(hereafter referred to as CSC) Chairperson Karina ConstantinoDavid wrote him a letter stating that:

For an undersecretary position, the qualifications are:

Bachelors degree, three (3) years supervisory
experience and Career Service Executive Eligibility
(CSEE) or Career Executive Eligibility (CESE).

Considering that you have met all the said

requirements, the status of your appointment is
permanent. As such, you have security of tenure to the
said position.
As a permanent official, you cannot be removed from
your position by virtue of a mere letter. You may only
be removed for cause as provided for by law, and after
due process. Considering that the termination letter
did not mention any cause or reason for your
termination, it is obvious that the Office of the
President was working under the mistaken assumption
that your appointment was not permanent and thus,
you may be separated from the service anytime or at a
moments notice.

A copy of Chairperson Karina Constantino-Davids letter is

attached as Annex E.

15. On the same date, also responding to Appellants query,

Career Executive Service Board (hereafter referred to as CESB)
Executive Director Mary Ann Fernandez-Mendoza replied that
since the Appellant did not resign from his position, the letter from
the Office of the President could not be taken to mean termination
from the service, and that the Appellant may continue performing
his functions as Undersecretary of DepED. A copy of this letter is
attached as Annex F.

16.

Appellant immediately prepared a letter informing the

Office of the President that he was going to continue to perform his

duties and functions as Undersecretary of DepED with no
disrespect intended, and his concerns were focused principally on

10

continuing and expanding education reforms. A copy of this letter

is attached as Annex G.

17.

Two days later, on 23 September 2005, Malacaang

announced to the media that appellant had been terminated as

undersecretary (of education) but not as a CESO.

This was

modified as to be a reassignment to some other government

position of same rank.
Secretary,

who

stated

This was again modified by the Press

that

Appellant

had

resigned

as

Undersecretary. On the evening of 26 September 2005, the Press

Secretary was heard on radio stating that appellant was being
allowed to stay as Undersecretary of education.

Copies of the

newspaper clippings are attached as Annexes H, H-1, and H2.

18. On 4 October 2005, Appellant received a Memorandum

from the Appellee dated that same day that read: In the exigency
of service, you are hereby re-assigned from the Department of
Education (DepED) to the Department of Labor and Employment
(DOLE) to a position at least commensurate to your Career
Executive Service (CES) rank. (See Annex A)

Malacanangs
post dated checques
11

19.

The termination letter of the Executive Secretary

received on 13 September 2005 and the Memorandum dated 4

October 2005 were no doubt sparked by the refusal of the
Appellant to accept the POST-DATED checks from the Presidents
Social Fund (hereafter referred to as PSF) which were intended for
the scholarship program of Congressman Antonio Diaz (2nd
District, Zambales).

20. On 23 August 2005, the DepED received a letter from

Congressman Diaz stating that President Arroyo had approved P20
Million from the PSF to be used for the congressmans scholarship
fund in the 2nd District of Zambales. Included in the letter was the
first P5 Million as a handwritten check drawn against an
unmarked non-commercial account in the Land Bank branch in
Malacaang. A copy of this letter and the proof that this check
was deposited to the DepED OSEC Trust Account is attached as
Annexes I and I-1.

21. The DepEDs Chief Accountant, Mrs. Olivia San Pablo,

immediately called the Appellant to ask what to do with the check.
Baffled, he requested her to show him the check signed by Deputy
Executive Secretary (DES) Susana Vargas with the handwritten
amount and name of the payee, the Department of Education. The
check was dated 21 August 2005, a Sunday.
12

22.

Incredulous that Malacaang would issue such a

handwritten check, Appellant asked the accountant to call the

office of DES Vargas to inquire if this was in fact a genuine check.
After Mrs. San Pablo reported to him that the Office of the
President confirmed the existence of the check, the Appellant then
called Congressman Diazs Chief of Political Affairs staff, Ms. Cora
Maestre, to inquire about the purpose of the amount and the
manner of the disbursement.

According to Ms. Maestre, the fund

was to be distributed as scholarship assistance given to each

public high school student in the congressmans district at a rate
of P350 per student, notwithstanding the fact that public
education is free and requires no payment of fees.

23. The Appellant was then told that the P5 Million should
be transferred to the Zambales division office which would, in
turn, release the money to the congressmans office which would
then distribute the same to the student beneficiaries directly. To
liquidate this amount, each student was to have signed a list
similar to a teachers payroll list when the latter receive their
payslips and paychecks from the division.

24.

In a telephone conversation, DES Vargas told the

Appellant that she was not privy to the Presidents decisions on the
PSF but that the Fund was disbursed solely at the discretion of the
13

President.

Hence, she continued, the scholarship project as

discussed by the congressman must have been in accordance with

the Presidents instructions.

25.

Upon the request of DES Vargas, Appellant agreed to

have the first P5 Million check deposited into the DepED central
office trust fund but then instructed Ms. San Pablo, DepED chief
accountant, not to transfer any funds to the Division of Zambales
until the Department received in writing a clear program of work
and the process of disbursement and liquidation from the
congressmans office.

26.

On 2 September 2005, three similar checks of equal

amount (P5.0 M each) were forwarded to the DepED accounting

office from the Presidential Management Staff for deposit and
transfer to the same division of Zambales. The dates on these postdated checks were 3 September 2005, 3 December 2005, and 3
March 2006. A certified true copy of these checks are attached as
Annexes J. The Appellant noticed that all three were similarly
handwritten as the first check in August though they now bore two
signatures, those of DES Susana Vargas and Erlinda Bautista de
Leon as head of the PSF.

27. The DepED accountant reported to the Appellant that

there was no accompanying documentation with the checks,
14

neither a Special Allotment Release Order (SARO) 5 nor a Notice of

Cash Allocation (NCA)6. Moreover, upon checking with both the
Department

of

Budget

and

Management

(DBM)

and

the

Commission on Audit (COA), she confirmed that the acceptance of

post-dated checks are against government rules on accounting and
auditing procedures. Upon the request of the Appellant in a letter
dated 06 September 2005, COA Assistant Commissioner Arcadio
Cuenco wrote a letter stating that:
Please be informed that the issuance and/or receipt
of post-dated checks by government agencies is
prohibited under GAO Circular No. 68-110 dated
October 10, 1968 pertinent portion of which states:
Checks presented for payment must be
drawn by the payor himself and made
payable to the agency or head of agency
Under no circumstance shall the following
checks be accepted: (a) checks drawn
payable to the name of the agency head or
any of its officers, (b) indorsed checks, (c)
postdated checks, (d) stale checks, and
(e) out-of-town checks, except those which
are drawn by the Government or its
instrumentalities. (emphasis supplied)

A certified copy of the letter of the to COA is attached as

Annex K. A certified copy of the letter of the Commission on
Audit to the Appellant is attached as Annex L.

28.

On 6 September 2005, the Appellant received a letter

The SARO is the notice from the DBM to a department that informs the latter that funds are now
allotted and can be obligated. In effect, the SARO provides the department with the authority to
spend funds.
6

The NCA is the notice from the DBM that the cash has been deposited or transferred to the
account of the department and can be drawn against. Only at this point in time can a check be
prepared and/or released to the payee.

15

from

Congressman

Antonio

Diaz

dated

September

2005

requesting for the transfer of the two cleared checks (21 August
2005 and 3 September 2005) from the DepED central office trust
account to the DepED Division Office of Iba, Zambales. A certified
true copy of this letter is attached as Annex M.

29.

Appellant called DES Vargas on 7 September 2005 to

inquire about the post-dated checks she signed personally

delivered by the congressmans staff. Her reply was startling. She
sounded perplexed by the Appellants query and asked what the
dates were on the checks. When asked why she did not know the
dates on the checks being the signatory, she told the Appellant
that she usually pre-signed blank checks for the PSF but would
give these directly to the President.

She said she was not privy

thereafter to the details of the checks nor of the projects for which
they were intended. Furthermore, she could not understand nor
explain why two of the checks would be post-dated.

30. On the same day the DepED Chief Accountant called

the Appellant with another urgent matter. The Presidential
Management

Staff

called

her

and

Mr.

Mandy

Ruiz,

the

departments Chief Budget Officer, to inquire if another PSF check

could be deposited directly to the division of Zamboanga del Sur
for the projects of Congressman Isidro Real, thus by-passing the
central office in an effort to cut down on the overall processing
16

time for the check.

31.

On 08 September 2005, Ms. Maestre of Congressman

Diazs office came to inquire if DepEd had deposited the first two
checks and if these could already be transferred to the division
office. The Appellant, not wanting to veer from the proper
accounting and auditing procedures, decided to return the four
checks to the Presidents Social Fund including the first one (21
August 2005) already deposited into the DepED central office trust
account and called the departments Chief Accountant, Chief
Budget Officer and Cashier to his office. The official receipt for the
second check (3 September 2005) was cancelled since this official
receipt had not yet been given to the Office of the President/PMS
and the check had yet to be deposited into the departments trust
account.

32. Early on 9 September 2005, Friday, a staff of PMS was

in the Appellants office waiting to pick up the three checks. The
appellant called Director Marietta Tamondong of the Presidential
Management Staff and informed her that the amount in the first
check which had already been deposited would likewise be
returned to PSF but through a DepED check. A certified copy of
the letter documenting the return of the checks is attached as
Annex N. That same day, Appellant informed OIC-Secretary Fe
Hidalgo of these developments and she concurred with his
17

decision.

33.

The day before, Ms. Yvonne Chua of the Philippine

Center for Investigative Journalism (hereafter referred to as PCIJ),

having heard of the post-dated checks from her Malacaang
source, came to see the Appellant to confirm if there were in fact
such checks received by the Department. This was confirmed by
the Appellant.

On 11 September 2005, Sunday, she posted the

story on the PCIJ weblog site which became a source of news for
other media organizations.

34. Deciding to return all of the checks that constituted the

P20M grant given to Congressman Diaz by the President through
the Presidents Social Fund, the Appellant, on 10 September 2005
cancelled the Disbursement Voucher for the first P5.0 M and
instructed Mrs. San Pablo, chief accountant, to return the amount
to the PSF using a DepED check. A certified copy of the cancelled
voucher with the Appellants marginal note (written instructions) is
attached as Annex O.

35. On 12 September 2005, the Appellant left for the United

States for a conference in New York City. That same day, the PCIJ
blog appeared in the Philippine Star. While the Appellant was in
the United States, OIC-Secretary Fe Hidalgo received a letter from
Cong. Antonio Diaz dated 13 September requesting for the release
18

of the first P5.0 M (date 21 August 2005).

This was eventually

released upon the instructions of OIC-Secretary Hidalgo. A

certified true copy of Cong. Diaz letter is attached as Annex P.
After the release of this amount, the DepED received a Deed of
Donation for the same P5.0M signed by Cabinet Secretary Ricardo
Saludo

and

Undersecretary

Ramon

Bacani

of

the

DepED,

notarized on 15 September 2005. A certified copy of this Deed of

Donation is attached as Annex Q.

36.

The next day, on 13 September 2005, the DepED

received the letter of termination of the Appellant from the

Executive Secretary. The OIC-Secretary called the Appellant on 16
September 2005 while he was still in New York to relay the news.
It will be noted that the letter of Cong. Diaz (See Annex N) was
received by the DepEd on that same day, 13 September 2005.

37. On 4 October 2006, Appellant received a Memorandum

signed by Executive Secretary Eduardo Ermita reassigning him
to the Department of Labor and Employment (DOLE), without
specifying a position or a definite period. On the same day, the
Appellant received a letter from DOLE Secretary Patricia Santo
Tomas dated 23 September 2005, stating that since the Appellant
was being moved from the DepED, she was requesting that he be

19

reassigned to her department. A certified true copy of this letter is

attached as Annex R.

38.

Hence, the Appellant files this Appeal contesting his

reassignment to the DOLE.

Arguments/Issues

I.
APPELLANT
DISMISSED

WAS

CONSTRUCTIVELY

II.
THE
ORDER
REASSIGNING
THE
APPELLANT TO THE DOLE WAS DONE
WITH GRAVE ABUSE OF DISCRETION,
THEREFORE UNLAWFUL
Appellant, a CESO, may be reassigned
or transferred only if the following
requirements
are
met:
a)
the
reassignment or transfer must be in the
interest of public service, b) without
reduction in rank or salary, and c) no
reassignment or transfer may be made
oftener than every two years, d) the
reassignment or transfer must be
effected only upon the availability of a
corresponding position.
III.

20

APPELLANTS TRANSFER WAS DONE IN

BAD FAITH, AND OBVIOUSLY FOR
POLITICAL REASONS

Discussion

I. Appellant was constructively dismissed

39. The 4 October 2005 Memorandum mandating the transfer

of Appellant states that :

In the exigency of service, you are hereby reassigned from the Department of Education (DepEd) to
the Department of Labor and Employment (DOLE) to a
position at least commensurate to your Career
Executive Service rank. (Emphasis supplied)

40.

The

Memorandum,

although

purportedly

merely

reassigning the Appellant to the DOLE, was obviously meant to

kick him out of DepED because of his refusal to tow Malacanangs
line. Especially when viewed in the context of the antecedent facts,
this transfer or reassignment is in reality a constructive
dismissal because the Memorandum does not specify what
position the Appellant will occupy in the DOLE and for how long he
would be reassigned there.

21

41. Furthermore, there is at present no vacant or available

position of Undersecretary in the DOLE. Without such a position,
the apparent intent of Malacanang is to float the Appellant as a
punishment, which is not allowed by the Civil Service Commission
(See, CSC Resolution No. 548, Aug. 10, 2004). Because the
purpose of the transfer order was to put Appellant on floating
status, the Appellant is deemed to be have been constructively
dismissed. This especially so since the Appellant would then find
his situation in the DOLE intolerable and humiliating such that he
would have to eventually resign from the government service.

42. The Constitution guarantees that no officer or employee

in the Civil Service shall be dismissed except for cause as provided
by law.7 This was blatantly violated by the Appellee, and his gross
bad faith, driven by political motive, is clear from the antecedent
facts. Furthermore, the Supreme Court has held in the case of
Pastor vs. Pasig8 that an indefinite assignment, such as that of
Appellant, is tantamount to a constructive dismissal. In said case,
petitioner, a budget officer, was assigned to Office of the Municipal
Administrator indefinitely. Her assignment was allegedly pending
the investigation of reports that she issued advice of allotments
without sufficient cash collection. In her ten-year assignment,
however, no investigation therefore was ever conducted. The
Supreme Court found such indefinite assignment as a form of
7
8

Art. IX-B, Sec. 2(3), 1987 Constitution.

382 SCRA 232 (2002).

22

constructive dismissal which left petitioner virtually on a floating

status. Moreover, the Supreme Court held that an employees
illegal removal cannot be carried out in the guise of a transfer for
the good of public service, thus:
There is no question that we recognize the
validity and indispensable necessity of the well
established rule that for the good of public service and
whenever public interest demands, [a] public official
may be temporarily assigned or detailed to other duties
even over his objection without necessarily violating
his fundamental and legal rights to security of tenure
in the civil service. But as we have already stated,
such cannot be undertaken when the transfer of the
employee is with a view to his removal and if the
transfer is resorted to as a scheme to lure the
employee away from his permanent position because
such attitude is improper as it would in effect result
in a circumvention of the prohibition which safeguards
the tenure of office of those who are in the civil
service.9
43. Similarly, in Gloria vs. Court of Appeals10 and Padolino
vs. Fernandez,11 the Supreme Court held that an indefinite
assignment, i.e. one which does not indicate a particular duration
or does not appear to be temporary, violates a civil servants
security of tenure.

44. In addition, in Bentain vs. Court of Appeals, 12 the

Supreme Court did not hesitate to declare a transfer motivated by
purposes

other

than

the

exigencies

of

public

interest

as

tantamount to an illegal dismissal. In the said case, petitioner, the

Citing Cruz. Vs. Navarro, 66 SCRA 79, 90 (1975).
338 SCRA 5.
11
342 SCRA 442.
12
G.R. No. 89452, June 9, 1992.
9

10

23

Chief Security Officer of the University of the Philippines was

indefinitely assigned to work full time on the UP Police Force
operationalization project. After completing his work in the said
project and after the university legal counsel recommended that he
be restored to his position as Chief Security Officer, said position
was immediately abolished. Noting the timeliness of the abolition,
the Supreme Court properly concluded that the order was issued
to prevent petitioner from returning to his former position and
ruled:

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 transfer would in effect
circumvent the provision which safeguards the tenure
of office of those who are in the Civil Service.13

II. The order reassigning the

Appellant to the DOLE
was done with grave abuse
of discretion, therefore unlawful.

45. Appellee cannot justify his action on the pretext that

Appellants transfer is covered by the mobility principle sanctioned
by this Honorable Commission. While we can grant that CESOs
may be transferred, this can only be done if several requirements

13

Citing Sta. Maria vs. Lopez, 31 SCRA 651; Garcia vs. Lejano, 109 Phil. 116.

24

are met, and always in good faith.

While the Appellee has the

authority to transfer a CESO, he cannot do so in grave abuse of

discretion. The application of the mobility principle to CESOs was
specifically laid down in the Revised Policy on Security of Tenure in
the Career Executive Service (Revised Policy),14 to wit:

RESOLVED FURTHER, that notwithstanding the

permanent status of appointment of a third level
official, he/she is covered by the mobility principle
enshrined under Article IV, Part III of the Integrated
Reorganizational Plan, as approved by Presidential
Decree No. 1, as amended, dated September 24, 1972,
quoted herein as follows:
e. Assignments,
Transfers
xxx

Reassignments

xxx

and

xxx

Any provision of law to the contrary

notwithstanding, members of the Career
Executive Service may be reassigned or
transferred from one position to another;
provided that such reassignment or
transfer is made in the interest of public
service and involves no reduction in rank
or salary; provided, further, that no
member shall be reassigned or transferred
oftener than every two years.
RESOLVED FURTHERMORE, to ensure compliance to
(sic) the above-quoted mobility principle, reassignment
or transfer shall be effected only upon the
availability of the corresponding position, it being
understood that a floating status is not within the
contemplation of this principle. Assignment to a CESO
pool shall not be considered as a floating status.
(Emphasis supplied)

14

Career Executive Service Board Resolution No. 548, August 10, 2004.

25

46. Based on the foregoing resolution, the reassignment or

transfer of a CESO must comply with the following requisites:

a.

It must be made in the interest of public service;

b.

It must involve no reduction in rank or salary;

c.

It must not be made within two years from the

employees last transfer or reassignment; and

d.

It must be effected only upon the availability of a

corresponding position.

47. The Office of the President, represented by the Appellee,

miserably failed to satisfy the first and the fourth requisite. Worse,
its action reeks of the unmistakable smell of malice.

The

Appellees mere invocation of the clause in the exigency of service

does not make the Appellants transfer lawful, in the absence of
any convincing proof thereof. The burden of proof is on the part of
the Appellee who seeks to deprive the Appellant of his work, his
right to property.

48. That Appellant is purportedly needed at the DOLE, as

Secretary Patricia Sto. Tomas claims in her letter to Appellee, is
NOT an exigency of service which warrants Appellants transfer.
Secretary Sto. Tomas letter itself belies any pretense that the
transfer order of the Appellant was in the interest of public service.
On the contrary, said letter acknowledges that Appellee already
sought to remove Appellant from the DepED from the very start,

26

and upon knowing the same, Secretary Sto. Tomas requested that
the Appellant be transferred to her department, perhaps intending
to make the transfer less painful for the Appellant, or at least, so
that he has a friendly Secretary to work with, considering that she
and the Appellant are both alumni of the Kennedy School of
Government.

49. In fact, Secretary Sto. Tomas made the request to the

Appellee only because she had been informed of Appellants
removal from the DepEd. Obviously, the DOLE Secretarys alleged
request is a mere afterthought intended to subterfuge Appellees
original plan to get rid of Appellant.

50. The reassignment of the Appellant therefore, can in no

way be seen as in the interest of public service. The truth is, the
public will be better served if Appellant remains as DepEd
Undersecretary. The Office of the President is well aware that until
now, the DepED is without a Secretary. DepED is mandated to
have four (4) undersecretaries and four (4) assistant secretaries. 15
However, DepEd presently has only three (3) undersecretaries, only
two (2) of whom are functioning as such since the third is the
officer-in-charge of the department. Of the two functioning
undersecretaries, one is co-terminus or non-career.

51. On the other hand, the DOLE has three (3) career
undersecretaries, one of whom assumed office only last 30
15

Republic Act No. 9155, Governance of Basic Education Act of 2001.

27

September 2005. There is no vacant or available Undersecretary

position in the DOLE.

In addition, DOLE is allowed three (3)

plantilla Assistant Secretary positions, two (2) of which are already

filled-up.

52. The fourth requisite for a lawful transfer of a CESO was

likewise violated by the Appellee.

If the Appellant is transferred to

DOLE, he will be placed in a humiliating situation because he will

not get the same rank and status of Undersecretary.

Given the

situation of both departments, how can the DOLEs need for

Appellants services take priority over that of the DepEd?

53. Moreover, the Office of the President could not possibly

be blind to the successful reforms spearheaded by the Appellant in
the DepEd, particularly on fiscal and administrative management.
With Appellants outstanding performance, his transfer to another
department with a completely different and unrelated function for
which he was not trained all the more becomes illogical.

54. It is therefore not difficult to conclude that Appellants

honesty, professionalism and independence in the performance of
his duties as the Undersecretary in charge of the finances of the
government agency with the biggest budget, having P118 Billion as
of 2004, prompted the Office of the President to underhandedly
remove him from the DepEd.

And for what purpose? Not only to

28

punish him, but to serve also as a lesson to others who may be of

like mind.

55. While the transfer of Career Executive Service Officers is

allowed, this can be lawfully done only if the above-mentioned
requirements are existing, and always in good faith.

We can be

guided by a case with similar issues involving the transfer of Atty.

Virgina L. Trinidad, CESO IV, who was an Assistant Commissioner
in the Bureau of Internal Revenue, who was reassigned to a
position that does not exist. In the case of Trinidad, Virginia L. Re
Appeal, Reassignment, the CSC ruled in favor of the Appellant in
its Resolution No. 030669 ( 10 June 2003), stating that:

While it is true that reassignment is a

management prerogative which the Commission does
not normally interfere with, the same is true only, as
held in CSC Resolution No. 96-3651, absent the
showing of grave abuse of discretion. In other words,
grave abuse of discretion must be clearly shown in
order that the Commission may take up the cudgels
for the employee reassigned (MONTIEL, Rolando, CSC
Resolution No. 94-1006, February 17, 1994. The
authority under the law is not intended as a
convenient weapon for the appointing authority to
harass or oppress a subordinate on the pretext of
advancing and promoting public interest (INHAYES,
Oscar J., CSC Resolution No. 98-16-08, June 24,
1998).

III. Appellants transfer was done in

bad faith, and obviously for political
reasons

29

56. A careful examination of the events that transpired prior

to Appellants transfer clearly shows that Appellees act was tainted
with bad faith, motivated by purely political reasons. Quite clearly,
the Appellant was removed because he was an obstacle to the
wishes of the President that she distributes the Presidential Social
Fund with no restrictions, and even when funds are not available,
hence the post-dated checks.

The Palace demands blind

obedience, and this the Appellant could not give.

57. Appellee very well knew that Appellant is a CESO with a

constitutionally guaranteed right to security of tenure, yet it
sought to dismiss Appellant through a termination letter dated 13
September 2005, only four (4) days after Appellant decided to
transfer back to the PSF the three (3) checks supposedly for
Congressman Diaz. The timing betrays Malacanangs political
motives behind Appellants termination.

58. Both the CSC and the CESB have written the Appellant
that termination of a CESO without cause and due process of law
is illegal. Hence, in a desperate and fraudulent attempt to lend a
semblance of legality to Appellants removal from the DepEd,
Malacanang qualified on 23 September 2005, i.e. ten (10) days
after the issuance of the termination letter, that Appellant was
terminated as undersecretary (of education) but not as CESO
(Annex I hereof). Malacanang later changed its stance and

30

disguised the termination as a reassignment to some other

government position of the same rank.

59. Malacanangs cover-up did not end with its conflicting

declarations.

Knowing

that

the

termination

(disguised

as

reassignment) is patently illegal, Malacanang deviously made it

appear that Appellant resigned and that it merely allowed
Appellant to continue its services as some form of accommodation.
Worse, Malacanang declared all these through press releases,
obviously to humiliate Appellant before the public.

60. This Honorable Commission should not and cannot

sanction such dismissal tainted by bad faith. Just like any other
employer, the government cannot transfer an employee as a result
of discrimination, in bad faith or as a form of punishment without
sufficient cause.16 As this Honorable Commission has consistently
ruled, (t)he authority (to transfer employees) under the law is not
intended to harass or oppress a subordinate on the pretext of
advancing and promoting public interest17.

61. The Supreme Court has protected government employees

from political vendetta. In Pangilinan vs. Maglaya,18 the Acting
Executive Director of the Land Transportation Office was separated
from service the day after his public exposes on the anomalies
16

Philippine American Life and General Insurance Co. vs. Gramaje, G.R. No. 156963, November
11, 2004.
17
Civil Service Commission Resolution No. 030669, June 10, 2003 citing CSC Resolution No.
98-16-08, June 24, 1998.
18
G.R. No. 104216, August 20, 1993.

31

involving his superiors and his threat to file cases against them.
Although the Supreme Court admitted that it was constrained by
law to uphold the termination of a temporary employee, it did not
hesitate to express its disapproval of the real political motives
behind dismissals and declare that the removal, in fact, constitutes
grave abuse of discretion:

It is not difficult to see that the petitioner was

replaced because of his expos and his threat to bring
charges against his superiors. His relief was clearly
an act of punishment if not personal vengeance.
This is not denied. The respondents, while invoking
the law to justify his separation, have made no effort
whatsoever to justify their motives.
xxx

xxx

xxx

It would be a sorry day, indeed, if a civil

servant could be summarily removed from his
position for the "sin" of complaining about the
irregularities of his superiors. This would not only
impair the integrity of the civil service but also
undermine the campaign to encourage the public,
including those in the civil service, to expose and
denounce venality in government.
Pangilinan's denunciation of the non-reflective
license plates was not the act of a rabble-rouser or a
publicity-seeker. The record shows that he quietly
brought the matter to the attention of his superiors,
giving reasons for his misgivings. They took no action.
Feeling frustrated, he sought the attention of the
media and told them of his objection to the nonreflective license plates. He cited the laws that he
claimed had been violated. He narrated his efforts to
prevent their violation. He spoke of the indifference of
his superiors. In doing all these, he was exercising his
right as a citizen, and especially as a civil servant, to
denounce official misconduct and improve the public
service.

32

xxx

xxx

xxx

Pangilinan
was
separated
the
day
immediately following his press conference. The
Court sees the action as a retaliation. The public
respondents say they were merely terminating his
incumbency in accordance with existing law. The
Court sees that termination as a punishment.
Under the expanded definition of judicial
power in Article VIII, Section 1, of the
Constitution, the Court can declare the acts of the
public respondents as tainted with grave abuse of
discretion and therefore invalid. (Emphasis
supplied)
62. In this case, Appellant faces a formidable opponent, and
powerless, he can only take refuge in the arms of the law. Under a
Rule of Law not even the highest officer of the land should be
allowed to disregard the Constitution, the law and the rights of
civil servants.

No amount of political power nor threat of

punishment should be able to intimidate civil servants into loyal

submission, blind obedience, and conspiracy to commit unlawful
acts.

Prayer
WHEREFORE, in view of the foregoing, it is respectfully
prayed that the Order dated 4 October 2005 signed by the
Appellee, ordering Appellants transfer to the DOLE be nullified as
illegal and that Appellant be retained as Undersecretary for
Finance and Administration of the Department of Education.

The Appellant prays for other relief that are just and
33

equitable in the premises.

Quezon City, 14 October 2005.

Counsel for Appellant:

_____________________________
_____________________________
_____________________________

_____________________________
_____________________________
_____________________________

_____________________________
_____________________________
_____________________________

Copy furnished:
Secretary Eduardo Ermita
Office of the Executive Secretary
Malacanang Palace
Manila City

Registered Mail No. ___

Date __________________

EXPLANATION ON MODE OF SERVICE

For lack of personnel, a copy of foregoing Memorandum on

Appeal was served by registered mail, rather than by the preferred
mode of personal service.

34

______________________________

35