G.R. No. 93023
March 13, 1991
TOMAS D. ACHACOSO, petitioner
vs.
CATALINO MACARAIG and RUBEN D. TORRES, in their capacities as Executive
Secretary and Secretary of the Department of Labor and Employment (DOLE),
respectively; and JOSE N. SARMIENTO, respondents.
FACTS: The
petitioner invokes security of tenure against his claimed removal without legal
cause. The respondents assert he is not entitled to the guaranty because he is
not a career official.
Tomas D. Achacoso was appointed Administrator of
the Philippine Overseas Employment Administration on October 16, 1987, and
assumed office on October 27, 1987. On January 2, 1990, in compliance with a
request addressed by the President of the Philippines to "all Department
Heads, Undersecretaries, Assistant Secretaries, Bureau Heads," and other
government officials, he filed a courtesy resignation. This was accepted by the
President on April 3, 1990, "with deep regrets." On April 10, 1990,
the Secretary of Labor requested him to turn over his office to the Deputy
Administrator as officer in-charge. In a letter dated April 19, 1990, he
protested his replacement and declared he was not surrendering his office
because his resignation was not voluntary but filed only in obedience to the
President's directive. On the same date, respondent Jose N. Sarmiento was
appointed Administrator of the POEA, vice the petitioner. Achacoso was informed
thereof the following day and was again asked to vacate his office. He filed a
motion for reconsideration on April 23, 1990, but this was denied on April 30,
1990. He then came to this Court for relief.
In this petition for prohibition and mandamus,
this Court is asked to annul the appointment of Sarmiento and to prohibit the respondents
from preventing the petitioner from discharging his duties as Administrator of
the POEA.
Achacoso contends that he is a member of the Career
Service of the Civil Service and so enjoys security of tenure, which is one of
the characteristics of the Career Service as distinguished from the Non-Career
Service. Claiming to have the rank of
undersecretary, he says he comes under Article IV, Section 5 of P.D. 807,
otherwise known as the Civil Service Decree, which includes in the Career
Service:
3. Positions in the Career Executive
Service; namely, Undersecretary, Assistant Secretary, Bureau Director,
Assistant Bureau Director, Regional Director, Assistant Regional Director,
Chief of Department Service and other officers of equivalent rank as may be
identified by the Career Executive Service Board, all of whom are
In his Comment, the Solicitor General concedes that
the office of POEA Administrator is a career executive service position but
submits that the petitioner himself is not a career executive service official
entitled to security of tenure. He offers the following certification from the
Civil Service Commission to show that the petitioner did not possess the
necessary qualifications when he was appointed Administrator of the POEA in
1987:
Reference is also made to the following rules
embodied in Part III, Article IV, Integrated Reorganization Plan as approved by
P.D. 1 and amended by P.D. 336 and P.D. 337, on the career executive service:
c. Appointment. Appointment to
appropriate classes in the Career Service shall be made by the President from
a list of career executive eligibles recommended by the Board.
Such appointments shall be made on the basis of rank; provided that
appointments to the higher ranks which qualify the incumbents to assignments as
undersecretary and heads of the bureaus and offices and equivalent positions
shall be with the confirmation of the Commission on Appointments. The
President may, however, in exceptional cases, appoint any person who is not a
Career Executive Service eligible, provided that such appointee shall
subsequently take the required Career Executive Service examination and that he
shall not be promoted to a higher class until he qualifies in such examination.
(Emphasis supplied.)
ISSUE: WON
petitioner may not be removed from his office because he is a permanent
employee conferred with security of tenure
HELD: NO. It
is settled that a permanent appointment can be issued only "to a person
who meets all the requirements for the position to which he is being appointed,
including the appropriate eligibility prescribed." Achacoso did not. At
best, therefore, his appointment could be regarded only as temporary. And being
so, it could be withdrawn at will by the appointing authority and "at a moment's
notice," conformably to established jurisprudence.
The mere fact that a position belongs to the Career
Service does not automatically confer security of tenure on its occupant even
if he does not possess the required qualifications. Such right will have to
depend on the nature of his appointment, which in turn depends on his eligibility
or lack of it. A person who does not have the requisite qualifications for the
position cannot be appointed to it in the first place or, only as an exception
to the rule, may be appointed to it merely in an acting capacity in the absence
of appropriate eligibles.
The purpose of an acting or temporary appointment
is to prevent a hiatus in the discharge of official functions by authorizing a
person to discharge the same pending the selection of a permanent or another
appointee. The person named in an acting capacity
accepts the position under the condition that he shall surrender the office
once he is called upon to do so by the appointing authority.
There is a long line of cases affirming the rule
that:
. . . One
who holds a temporary appointment has no fixed tenure of office; his employment
can be terminated at the pleasure of the appointing power, there being no need
the show that the termination is for cause.
The petitioner contends that his appointment was
really intended to be permanent because temporary appointments are not supposed
to exceed twelve months and he was allowed to serve in his position for more than
three years. The case of Luego vs. Civil Service Commission is not applicable because the facts of
that case are different. The petitioner in Luego was qualified and
was extended a permanent appointment that could not be
withdrawn on the ground that it was merely temporary. In the case at bar, the
petitioner was not eligible and therefore could be appointed
at best only in a temporary capacity.
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