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*
G.R. No. 127182. January 22, 2001.

HON. ALMA G. DE LEON, Chairman, HON. THELMA P.

GAMINDE, Commissioner, and HON. RAMON P.
ERENETA, JR., Commissioner, Civil Service Commission,
and SECRETARY RAFAEL M. ALUNAN, III, Department
of Interior and Local Government, petitioners, vs. HON.
COURT OF APPEALS and JACOB F. MONTESA,
respondents.

Civil Service Law; Appointments; 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.—In the case at
bar, there is no question that private respondent does not have
the required CES eligibility. As admitted by

_______________

* EN BANC.

2 SUPREME COURT REPORTS ANNOTATED

De Leon vs. Court of Appeals

private respondent in his Comment, he is “not a CESO or a

member of the Career Executive Service.” In the case of Achacoso
v. Macaraig, et al., the Court held that: 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 And being so, it could be withdrawn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.
Same; Same; Private respondent’s appointment did not attain
permanency; He could be transferred or reassigned without
violating the constitutionally guaranteed right to security of
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tenure.—Evidently, private respondent’s appointment did not

attain permanency. Not having taken the necessary Career
Executive Service examination to obtain the requisite eligibility,
he did not at the time of his appointment and up to the present,
possess the needed eligibility for a position in the Career
Executive Service. Consequently, his appointment as Ministry
Legal Counsel-CESO IV/Department Legal Counsel and/or
Director III, was merely temporary. Such being the case, he could
be transferred or reassigned without violating the constitutionally
guaranteed right to security of tenure.

PETITION for review on certiorari of a decision of the

Court of Appeals.

The facts are stated in the opinion of the Court.

     The Solicitor General for the petitioners.
     Jacob F. Montesa for and in his own behalf.

YNARES-SANTIAGO, J.:

Can a person who lacks the necessary qualifications for a

public position be appointed to it in a permanent capacity?
Before the Court is a Petition for Review
1
on Certiorari
assailing the April
2
25, 1996 Decision, and November 20,
1996 Resolution of the Court of Appeals in CA-G.R. SP No.
38664, which set aside

_______________

1 Rollo, pp. 40-51.

2 Rollo, pp. 52-58.

VOL. 350, JANUARY 22, 2001 3

De Leon vs. Court of Appeals

3 4
Resolution Nos. 95S268 and 955201 of the Civil Service
Commission; and declared 5 as null and void—(1)
Department Order No. 94-370, issued by the Department
of Interior and Local Government, relieving private
respondent of his duties as Department Legal
Counsel/Director III and reassigning him as Director III
(Assistant Regional Director), Region XI; and (2)
Administrative Order No. 235 issued by then President
Fidel V. Ramos, dropping private respondent from the rolls
of public service, for serious neglect of duty and absences
without official leave.
On August 28, 1986, private respondent Atty. Jacob F.
Montesa, who is not a Career Executive Service Officer
(CESO) or a member of the Career Executive Service, was
appointed as “Ministry Legal Counsel-CESO IV in the
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Ministry of Local Government” (now Department of

Interior and Local Government [hereafter referred to as
Department]), by then Minister Aquilino Pimentel, Jr.
Private respondent’s appointment was approved as
permanent by the Civil Service Commission.
On July 25, 1987, then President Corazon C. Aquino
promulgated Executive Order No. 262, reorganizing the
Department. On April 8, 1988, then Secretary Luis T.
Santos, who succeeded Minister Pimentel, designated
Nicanor M. Patricio as Chief, Legal Service in place of
private respondent who, in turn, was directed to report to
the office of the Secretary to perform special assignments.
Consequently, private respondent filed before this Court6
a petition for quo warranto, docketed as G.R. No. 83470,
against then Secretary Luis T. Santos and Nicanor
Patricio. On September 26, 1990, we ruled in favor of
private respondent Montesa and ordered his reinstatement
to his former position.
Meanwhile, Republic Act No. 6758 (otherwise known as
the Salary Standardization Law) took effect on July 1,
1989. Pursuant thereto, the position of “Department
Service Chiefs,” which include the Department Legal
Counsel, was reclassified and ranked with

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3 Dated May 23, 1995; Rollo, pp. 65-67.

4 Dated August 22, 1995; Rollo, pp. 273-275.
5 Rollo, p. 60.
6 Montesa v. Santos, et al., 190 SCRA 50 (1990).

4 SUPREME COURT REPORTS ANNOTATED

De Leon vs. Court of Appeals

“Assistant Bureau Directors”

7
under the generic position
title of “Director III.”
Hence, in the execution of the decision of this Court in
G.R. No. 83470, respondent was reinstated to the 8
position:
“Department Legal Counsel and/or Director III.”
On July 26, 1994, then Secretary Rafael M. Alunan III,
citing as reasons the interest of public service and the
smooth flow of operations in the concerned offices, issued
Department Order No. 94-370, relieving private respondent
of his current duties and responsibilities and reassigning
him9 as “Director III (Assistant Regional Director), Region
XI.” Private respondent, however, did not report to his new
assigned position. Instead, he filed a 90-day sick leave, and
upon the expiration thereof on December 5, 1994, he
submitted a memorandum for then acting Secretary
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Alexander P. Aguirre, signifying his intention to re-assume

his position
10
as Department Legal Counsel/Chief, Legal
Services.
Thereupon, Acting Secretary
11
Aguirre, by memorandum
dated December 6, 1994, reiterated to private respondent
that the issuance of Department Order No. 94-370,
transferring him to Region XI, was in keeping with the
interest of the public service and of the Career Executive
Service (CES) provision on assignment, reassignment, and
transfer. Accordingly, private respondent was advised to
report to Region XI immediately.
Private respondent12
wrote a memorandum dated
December 12, 1994 requesting for a reconsideration of
Department Order No. 94-370, but to no avail. Private
respondent appealed to the Civil Service 13Commission and
the latter issued Resolution No. 95-3268, dated May 23,
1995 which sustained his reassignment to Region XI, on
the grounds that: 1) the subject reassignment was not
viola-

_______________

7 National Compensation Circular No. 58 implementing Sections 6 and

23 of R.A. No. 6758.
8 Rollo, p. 59.
9 Rollo, p. 60.
10 Rollo, p. 207.
11 Rollo, p. 61.
12 Rollo, pp. 62-64.
13 Rollo, pp. 65-67.

VOL. 350, JANUARY 22, 2001 5

De Leon vs. Court of Appeals

tive of the due process clause of the Constitution or of

private respondent’s right to security of tenure; 2) the
reassignment did not entail any reduction in rank or
status; 3) private respondent could be reassigned from one
station to another without his consent as the rule against
unconsented transfer applies only to an officer who is
appointed to a particular station, and not merely assigned
thereto. Private respondent’s motion for reconsideration of
the aforesaid Resolution was similarly denied by the
Commission
14
in Resolution No. 955201 dated August 22,
1995.
On October 10, 1995, the Department directed private
respondent to report to his new assigned post in Region XI,
stressing that his continued non-compliance with D.O. No.
94-370 is prejudicial to the interest of public service,
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particularly in Region XL Private respondent was also

warned that upon his failure to comply, the Department
shall be constrained to consider him on Absence Without
Leave (AWOL) and as 15
a consequence, drop him from the
rolls of public service.
Instead of complying therewith, private respondent, on
October 23, 1995, filed with the Court of Appeals a Petition
for Review with prayer for the issuance of a temporary
restraining order and/or preliminary injunction. No
restraining order or preliminary injunction, however, was
issued by the court.
On December 13, 1995, then President Fidel V. Ramos,
upon the recommendation of the Department, issued
Administrative Order No. 235, dropping private respondent
Atty. Jacob F. Montesa, Director III, Legal Service, from
the roster of public servants for 16
serious neglect of duty and
absences without leave (AWOL).
On April 25, 1996, the Court of Appeals rendered its
decision in favor of private respondent, holding as follows:

WHEREFORE, the petition is GRANTED. Department Order No.

94-370 in so far as it affects petitioner, Jacob F. Montesa, is
hereby declared null and void. Petitioner is hereby ordered
retained in his position as “Chief Legal Service” or “Department
Legal Counsel” in the DILG,

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14 Rollo, pp. 273-275.

15 Rollo, p. 340.
16 Rollo, pp. 346-348.

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De Leon vs. Court of Appeals

without loss of seniority, rank, emolument and privileges. The

DILG Secretary is hereby ordered to release to petitioner his
withheld salaries corresponding to the period July 15-21, 1995
and his back salaries, if also withheld, corresponding to the period
July 22, 1995 to September 27, 1995.
Finding that petitioner has not paid the amount of P500.00 as
deposit for costs (page 1, Rollo), he is hereby ordered to pay the
same to the Clerk of this Court within five (5) days from receipt of
this decision 17
SO ORDERED.

Both petitioners and private respondent moved for

reconsideration. In his Motion for Clarification and/or
Partial Motion for Reconsideration, private respondent
prayed for “backwages to cover the period from October 5,

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1995 up to his actual reinstatement to office, the period

from August 1, 1994 to July 14, 1995 having been covered
by approved leave of absences with pay, while the period
July 15-21, 1995 is the period where his name was included
in the payroll but release of his salary was illegally
withheld by private respondent Alunan on July 21, 1995,
and the period of July 22 to October 4, 1995 is the period
where respondent Alunan withheld his salary even before
CSC Resolution No. 18
95-9201 (should be No. 95-3268)
became executory.” Respondent likewise prayed for the
award of RATA during the period of his illegal dismissal.
Petitioners, on the other hand, posited that the decision
of the Court of Appeals is not confluent with
Administrative Order No. 235, issued on December 13,
1995 by then President Ramos which dropped petitioner
from the roster of public servants. They further argued that
until and unless the said Order is declared illegal and/or
invalid, the presumption is in favor of its validity and it is
incumbent upon private respondent to comply therewith so
as not to prejudice the public service.
On November 20, 1996, the Court of Appeals issued the
assailed resolution modifying its April 25, 1996 decision,
thus:

WHEREFORE, premises considered, the Motion for

Reconsideration filed by public respondents is hereby DENIED for
lack of merit. Peti-

_______________

17 Rollo, pp. 50-51.

18 Rollo, pp. 53-54.

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De Leon vs. Court of Appeals

tioner’s Motion for Clarification and/or Partial Motion for

Reconsideration is hereby GRANTED. The dispositive portion of
the decision is hereby modified to read as follows:

WHEREFORE, the petition is GRANTED. Department Order No. 94-370

in so far as it affects petitioner, Jacob Montesa, and Administrative
Order No. 235 are hereby declared null and void. Petitioner is hereby
ordered reinstated to his position as “Chief, Legal Service” or
“Department Legal Counsel” in the DILG, without loss of seniority, rank,
emolument and privileges. The DILG Secretary is hereby ordered to
release to petitioner his withheld salaries and backwages, including
allowances (RATA) and other benefits, to which petitioner would have
been entitled had he not been illegally removed, corresponding to the
period July 15, 1995 up to his actual reinstatement to office.
19
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19
SO ORDERED.

Dissatisfied, petitioners filed the instant petition with this

Court, contending that:

RESPONDENT COURT GRAVELY ERRED IN RULING THAT

RESPONDENT MONTESA’S REASSIGNMENT IS ACTUALLY
AN UNCONSENTED TRANSFER.

II

RESPONDENT COURT GRAVELY ERRED IN RULING

THAT RESPONDENT MONTESA’S “TRANSFER” CHANGES
HIS APPOINTMENT FROM PERMANENT TO TEMPORARY
AND VIOLATES HIS CONSTITUTIONAL RIGHT TO
SECURITY OF TENURE.

III

RESPONDENT COURT GRAVELY ERRED AND

COMMITTED GRAVE ABUSE OF DISCRETION IN ORDERING
THE REINSTATEMENT OF RESPONDENT MONTESA IN
OPEN DISREGARD OF ADMINISTRATIVE ORDER NO. 235
ISSUED BY THE PRESIDENT OF THE PHILIPPINES
DROPPING HIM FROM THE ROSTER OF PUBLIC SERVANTS.

________________

19 Rollo, pp. 57-58.

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De Leon vs. Court of Appeals

IV

RESPONDENT COURT GRAVELY ERRED IN RULING THAT

RESPONDENT MONTESA IS ENTITLED TO BACKWAGES,
INCLUDING RATAAND OTHER BENEFITS,
CORRESPONDING TO THE PERIOD20FROM JULY 15, 1995 UP
TO HIS ACTUAL REINSTATEMENT.

Succinctly put, the pivot of inquiry here boils down to the

nature of the appointment of private respondent Atty.
Jacob F. Montesa.
At the outset, it must be stressed that the position of
Ministry Legal Counsel-CESO IV is embraced in the
Career Executive Service. Under the Integrated
Reorganization Plan, appointment thereto shall be made as
follows:

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c. Appointment. Appointment to appropriate classes in the Career

Executive Service shall be made by the President from a list of
career executive eligibles recommended by the Board. Such
appointments shall be made on the basis of rank; provided that
appointments to the higher ranks which qualify the incumbents
to assignments as undersecretary and heads of bureaus and
offices and equivalent positions shall be with the confirmation of
the Commission on Appointments. The President may, however,
in exceptional cases, appoint any person who is not a Career
Executive Service eligible; provided that such appointee shall
subsequently take the required Career Executive Service
examination and that he shall not be promoted to a higher class
until he qualifies in such examination.
At the initial implementation of this Plan, an incumbent who
holds a permanent appointment to a position embraced in the
Career Executive Service shall continue to hold his position, but
may not advance to a higher class of position in the Career
Executive Service unless or until
21
he qualifies for membership in
the Career Executive Service.

Corollarily, the required Career Executive Service

eligibility may be then acquired in the following manner:

________________

20 Rollo, p. 27.
21 Part III, Chapter I, Art. IV, par. 5(c); Pursuant to Presidential
Decree No. 1.

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De Leon vs. Court of Appeals

Career Executive Service Eligibility

Passing the CES examination entitles the examinee to a
conferment of a CES eligibility and the inclusion of his name in
the roster of CES eligibles. Conferment of CES eligibility is done
by the Board through a formal Board Resolution after an
evaluation of the examinee’s performance
22
in the four stages of the
CES eligibility examinations.

In the case at bar, there is no question that private

respondent does not have the required CES eligibility. As
admitted by private respondent in his Comment, he is “not
a CESO or a member of the Career Executive Service.”
23
In the case of Achacoso v. Macaraig, et al., the Court
held that:

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

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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 Court, having considered these submissions and the
additional arguments of the parties in the petitioner’s Reply and
the Solicitor-General’s Rejoinder, must find for the respondents.
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 appointment extended to
him cannot be regarded as permanent even if it may be so
designated.

Evidently, private respondent’s appointment did not attain

permanency. Not having taken the necessary Career
Executive Service examination to obtain the requisite
eligibility, he did not at the time of his appointment and up
to the present, possess the needed

________________

22 CES Handbook, pp. 5-6.

23 195 SCRA 235, 239-240 (1991).

10

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De Leon vs. Court of Appeals

eligibility for a position in the Career Executive Service.

Consequently, his appointment as Ministry Legal Counsel-
CESO IV/Department Legal Counsel and/or Director III,
was merely temporary. Such being the case, he could be
transferred or reassigned without violating the
constitutionally guaranteed right to security of tenure.
Private respondent capitalizes on his lack of CES
eligibility by adamantly contending that the mobility and
flexibility concepts in the assignment
24
of personnels under
the Career Executive Service do not apply to him because
he is not a Career Executive Service Officer. Obviously, the
contention is without merit. As correctly pointed out by the
Solicitor General, non-eligibles holding permanent
appointments to CES positions were never meant to
remain immobile in their status. Otherwise, their lack of
eligibility would be a premium vesting them with

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permanency in the CES positions, a privilege even their

eligible counterparts do not enjoy.
Then too, the cases on unconsented transfer invoked by
private respondent find no application in the present case.
To reiterate, private respondent’s appointment is merely
temporary; hence, he could be transferred or reassigned to
other positions without violating his right to security of
tenure.
WHEREFORE, based on the foregoing, the Petition is
GRANTED. The April 25, 1996 Decision and the November
20, 1996 Resolution of the Court of Appeals in CA-G.R. SP
No. 38664 are REVERSED and SET ASIDE. Resolution
Nos. 953268 and

_______________

24 Assignments, Reassignments and Transferees . . .

Any provision of law to the contrary notwithstanding, members of the Career

Executive Service may be reassigned or transferred from one position to another
and from one department, bureau or office to another; provided that such
reassignment or transfer is made in the interest of public service and involves no
reduction in rank or salary; provided, further, that no member shall be reassigned
or transferred oftener than every two years; and provided, furthermore, that if the
officer concerned believes that his reassignment or transfer is not justified, he may
appeal his case to the President (Integrated Reorganization Plan, Part III, Chap. I,
Art. IV, par. 5[e]).

11

VOL. 350, JANUARY 22, 2001 11

People vs. De Leon

955201 of the Civil Service Commission are REINSTATED.

No pronouncement as to costs.
SO ORDERED.

          Davide, Jr. (C.J.), Bellosillo, Melo, Puno, Vitug,

Kapunan, Mendoza, Panganiban, Quisumbing, Pardo,
Buena, Gonzaga-Reyes, De Leon, Jr. and Sandoval-
Gutierrez, JJ., concur.

Petition granted, judgment and resolution reversed and

set aside. CSC Resolution Nos. 953268 and 955201
reinstated.

Note.—The Civil Service Commission is empowered to

take appropriate action on all appointments and other
personnel actions and such power “includes the authority
to recall an appointment initially approved in disregard of
applicable provisions of Civil Service law and regulations.”

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(Mathay, Jr. vs. Civil Service Commission, 312 SCRA 91

[1999])

——o0o——

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