EN BANC

[G.R. NO. 157950 : June 8, 2005]

LIBRADA D. TAPISPISAN, Petitioner, v. COURT OF APPEALS; CIVIL SERVICE COMMISSION; HON. RICARDO T. GLORIA,

Secretary, Department of Education, Culture and Sports (DECS); DR. NILO L. ROSAS, Regional Director, DECS-NCR; ATTY.
RICARDO T. SIBUG, Superintendent of Schools, Pasay City; MRS. ALICIA G. BENZON, Principal IV, Coordinating Principal, South
District, Pasay City; MRS. MYRNA TEVES, Teacher, Gotamco Elementary School, Pasay City; and MRS. AIDA RUMBAOA, Teacher,
Villanueva Elementary School, Pasay City, Respondents.

DECISION

CALLEJO, SR., J.:

Before the Court is the Petition for Review on Certiorari filed by Librada D. Tapispisan seeking the reversal of the Decision1 dated December 12,
2002 of the Court of Appeals (CA) in CA-G.R. SP No. 45485.

The assailed decision affirmed the resolutions of the Civil Service Commission (CSC) dismissing the petitioner's protest against the designation
of respondent Aida M. Rumbaoa as Officer-in-Charge (OIC)-Head Teacher of P. Villanueva Elementary School and respondent Myrna M. Teves
as OIC-Principal of Don Carlos Elementary School. The petitioner also seeks the reversal of the appellate court's Resolution dated April 10,
2003, denying her motion for reconsideration.

The factual and procedural antecedents of the case are as follows:

Petitioner Tapispisan is a public school teacher and has been occupying the position of Teacher III since September 1, 1992. She has been
teaching for the last thirty (30) years and is currently assigned at the Villamor Air Base Elementary School in Pasay City.

On May 30, 1995, respondent Atty. Ricardo T. Sibug (Schools Division Superintendent, Pasay City) issued Division Memorandum No. 33
designating respondent Rumbaoa as OIC-Head Teacher of P. Villanueva Elementary School and respondent Teves as OIC-Principal of Don
Carlos Elementary School, both schools are in Pasay City. Feeling that she had been unduly by-passed, petitioner Tapispisan filed with
respondent Sibug a protest contesting such designation. The latter, however, denied the protest. The petitioner then brought the matter to
respondent Dr. Nilo L. Rosas, Regional Director of the Department of Education, Culture and Sports (DECS) for National Capital Region (NCR)
who, likewise, denied the protest.

On December 11, 1995, the petitioner filed with the DECS a "Complaint/Protest Against the Illegal and Indiscriminate Appointment and
Promotion of Mesdames Aida Rumbaoa and Myrna Teves," docketed as Adm. Case No. 96-001. Together with respondents Rumbaoa and Teves,
also named as respondents were Dr. Rosas, Atty. Sibug and Mrs. Alicia G. Benzon (Principal IV, Coordinating Principal, South District).

In her complaint/protest, petitioner Tapispisan alleged that the designation of respondents Rumbaoa and Teves was made with evident favoritism
and in gross violation of Civil Service and DECS rules and regulations on promotions. The petitioner claimed that she was more qualified for
promotion than respondents Rumbaoa and Teves. She pointed out that in the 1994-1995 annual qualifying examination conducted for both
teachers and principals, she placed No. 4 in the Division List of Promotables for Head Teachers while the names of respondents Rumbaoa and
Teves did not appear therein. Nonetheless, they were the ones recommended and designated to the subject positions.

Petitioner Tapispisan enumerated her credentials and qualifications,2 thus:

Degrees Completed : Bachelor of Science in Elem. Education (BSEd) FEU, 1970

Master of Arts in Industrial Education (MAIE) Adm. & Supervision, TUP, 1992

Civil Service Eligibility : Professional Board Exam< for Teachers, 71.06%, 1982

Competitive Exam, 90%, 1971

Classroom Teacher, 1971-1981

Positions Held : E.G.T., 1981-1992
Teacher III, 1992-Present

Achievements, Awards DECS Rating, 1993-1994, 94%

And Distinctions : as Teacher

Potential Teacher Rating 1994-1995, 9.8

Bronze Service Award Boys Scouts of the Phils., 1990

 Certificate of Merit
Villamor Air Base Elem. School, 1989

Recognition and Appreciation Nichols Air Base, 1979

The petitioner claimed that she completed her masters degree long before respondents Rumbaoa and Teves completed theirs and that she became
Teacher III ahead of them. However, in making their recommendation, respondents Benzon and Sibug allegedly disregarded these objective
factors or criteria for promotion and instead resorted to personal or relative factors, which are the weakest of the standards for evaluation, to favor
respondents Rumbaoa and Teves.

The petitioner thus prayed in her complaint/protest that the promotions of respondents Rumbaoa and Teves be recalled and that they be
disallowed from occupying, in acting capacity, the positions to which they were designated.

In their answer, respondents Benzon and Sibug asserted that the evaluation of the qualifications of the teachers considered for promotion was
made by a Division Section/Board of Promotions in accordance with Section 9,3 Rule VI, Omnibus Rules Implementing Book V of Executive
Order No. 2924 and other pertinent Civil Service Laws, and that the qualifications of each applicant was juxtaposed vis - à-vis the qualification
standards provided for in Sections 1 up to 7,5 Rule IV of the same omnibus rules.chanrobles virtual law library Respondents Benzon and Sibug
maintained that all the standards and procedures were complied with by the said Board of Promotions, which found petitioner Tapispisan
"wanting of qualification for the position of Head Teacher or Principal."

For her part, respondent Rumbaoa averred that she was already promoted as Elementary School Head Teacher III on March 15, 1995 and
subsequently re-assigned as OIC-Head Teacher of P. Villanueva Elementary School on May 30, 1995. Even with the new assignment, she retains
the position of Elementary School Head Teacher III assigned at Villamor Air Base Elementary School. The head of P. Villanueva Elementary
School is a Head Teacher, not a principal. Hence, her assignment thereat is not a promotion since it does not involve an increase in rank and
salary.

On the other hand, respondent Teves averred that she was promoted as Master Teacher II way back in 1987. Thereafter, when the principal of
Don Carlos Elementary School was on leave or assigned to other missions, respondent Teves would be designated OIC thereof. The head of the
said school is Principal I, which is lower in salary than that of Master Teacher II at Villamor Air Base Elementary School, which position she still
holds.

After evaluating the arguments of the parties, then Secretary of the DECS Hon. Ricardo T. Gloria issued the Order dated April 10, 1996
dismissing the complaint/protest as he found the appointment of respondents Rumbaoa and Teves as Head Teacher III and Master Teacher II,
respectively, as well as their subsequent designation as OIC-Head Teacher and OIC-Principal, respectively, to be in order.

Secretary Gloria based his conclusion on the findings that, with respect to respondent Teves, she was appointed Master Teacher II effective
February 18, 1987. This appointment had been attested by the CSC; hence, such final and completed promotional appointment could no longer be
the subject of protest nor set aside by recall. The bases of her appointment as Master Teacher II were respondent Teves' Performance Efficiency
Ratings, which had been "OUTSTANDING" for the last five consecutive years, and the several awards conferred on her by civic organizations,
including Outstanding Teacher of Pasay City in 1993. Also, the DECS Division authorities obviously had trust and confidence in respondent
Teves' competence and dedication as shown by the fact that they would designate her as OIC of Don Carlos Elementary School when its former
principal was on leave or on assignment elsewhere. It was emphasized that respondent Teves' designation as OIC-Principal of Don Carlos
Elementary School was of temporary nature, not a permanent movement from Villamor Air Base Elementary School nor a promotion. Being
temporary, it may be recalled any time.

Secretary Gloria found that, with respect to respondent Rumbaoa, she was appointed as Elementary School Head Teacher III on March 15, 1995,
which appointment was attested by the CSC. As such, it had become complete and final, which could no longer be a subject of belated protest or
withdrawn by recall.

Respondent Rumbaoa's appointment as Elementary School Head Teacher III was based on her Performance Efficiency Ratings, which had been
"OUTSTANDING" for the last four consecutive years (1991-1995), and her being recipient of several achievement awards for teaching
excellence at Villamor Air Base Elementary School. It was also noted that respondent Rumbaoa ranked No. 2 in the Division List of Promotables
for the school year 1993-1994, where she earned a total score of 63.19 while petitioner Tapispisan obtained 53.38. Thus, even if the following
school year (1994-1995) petitioner Tapispisan ranked No. 4 in the qualifying examination, the same did not affect the rank of respondent
Rumbaoa earned the previous year.

Secretary Gloria further observed that the appointment of respondent Rumbaoa as Elementary School Head Teacher III on March 15, 1995 took
place prior to the holding of the qualifying examination where petitioner Tapispisan ranked No. 4. Therefore, respondent Rumbaoa no longer had
to take the said examination having already been appointed Elementary School Head Teacher III prior thereto. Besides, performance ratings,
outstanding accomplishments, experience and specialized education and training comprise ninety percent (90%) of the whole ranking process. On
the other hand, the written examination is only one of the factors considered to determine the person's fitness for the position.
It was stressed by Secretary Gloria that respondent Rumbaoa's designation as OIC-Head Teacher of P. Villanueva Elementary School was merely
temporary, not a permanent transfer nor a promotion. Further, it did not remove her from her incumbent position as Head Teacher III at the
Villamor Air Base Elementary School.

Secretary Gloria concluded in the dispositive portion of the April 10, 1996 Order that:

IN VIEW of the foregoing disquisitions, the complaint/protest against the illegal and indiscriminate appointment and promotion of Mesdames
Aida M. Rumbaoa and Myrna M. Teves, Villamor Air Base Elementary School, Pasay City, belatedly filed by Mr[s]. Librada D. Tapispisan, is
hereby DISMISSED for having already prescribed and for lack of merit.6

Forthwith, petitioner Tapispisan elevated the case to the CSC where, in addition to her allegation that she was more qualified than respondents
Rumbaoa and Teves as their names did not appear in the 1994-1995 Division List of Promotables, the petitioner, likewise, contended that their
designation as OIC-Head Teacher and OIC-Principal, respectively, was made in violation of the ban on appointments and promotions during
election period.

In its Resolution No. 972501 dated April 14, 1997, the CSC dismissed petitioner Tapispisan's protest holding:

The protest must fail. Only appointments/promotions and not designation can be the subject of a protest. Designation, being temporary in nature,
does not amount to the issuance of an appointment, but is a mere imposition of additional duties. In the case of Martinez, Estrella V. (CSC
Resolution No. 95-3512), the Commission ruled as follows:

Obviously, Martinez had failed to distinguish between promotional appointment and designation or reassignment order. The latter merely
requires performance of additional duties and responsibilities. A promotional appointment may be the subject of a protest but a designation or
reassignment can be questioned only by the person so reassigned.

There being no appointment issued that can be subject of a protest, the instant protest must be dismissed.

WHEREFORE, the protest of Librada D. Tapispisan is hereby dismissed.7

Petitioner Tapispisan sought reconsideration thereof but her motion was denied for lack of merit by the CSC in its Resolution No. 973698 dated
August 28, 1997 which stated in part:

After a careful evaluation of the instant motion for reconsideration, the Commission finds no merit therein. Tapispisan failed to submit any legal
or factual reason which would warrant the modification or reversal of CSC Resolution No. 972501. On the other hand, Tapispisan actually
affirmed that there was no promotional appointments issued but Rumbaoa and Teves were merely issued temporary designations.

If it is true that there is the intention of the DECS to promote the protestees to their present assignments, then, Tapispisan must wait until the
appointments are actually issued. Otherwise, a protest at this time is premature.

On the question of the earlier promotion of Rumbaoa to the position of Head Teacher III which Tapispisan raised in her motion for
reconsideration, the same should be dismissed outright. The appointment was supposed to have become effective on 15 March 1995. If
Tapispisan failed to question said appointment at the time it was issued then it has become final; hence, can no longer be the subject of protest.
Furthermore, other than her bare allegations, Tapispisan failed to submit evidence to support her charges of violation of the election ban.

WHEREFORE, the motion for reconsideration filed by Librada Tapispisan is hereby denied. Accordingly, CSC Resolution No. 97-2501 stands.8

Undaunted, petitioner Tapispisan filed with the CA a Petition for Certiorari seeking to annul and set aside the foregoing resolutions of the CSC.

In the assailed Decision dated December 12, 2002, the appellate court dismissed the petition. It found that respondents Rumbaoa and Teves were
merely designated in acting capacity to their respective positions. This designation thus could not be subject of a protest because, under Civil
Service laws, only appointments and promotions can be subject of a protest. In the same vein, such designation could not have been a prohibited
act during the election period because the ban only covers transfer of civil service officers or employees or new appointments, promotions or
giving salary increases.

Regarding the appointment of respondent Rumbaoa as Head Teacher III, the CA held that it was already too late in the day for the petitioner to
contest the same. Such appointment was made effective on March 15, 1995 but it was only on December 11, 1995, or some eight months later,
that petitioner Tapispisan filed her complaint/protest with the DECS. The appellate court affirmed the finding of respondent DECS Secretary that
respondent Rumbaoa possessed the necessary qualifications for the position of Head Teacher III. The CA also noted that petitioner Tapispisan did
not raise the issue about respondent Rumbaoa's appointment as Head Teacher III in her complaint filed with the DECS Secretary but that the
issue surfaced only when she sought the reconsideration of CSC Resolution No. 972501. An issue not previously raised below may not be raised
for the first time on appeal.
Petitioner Tapispisan filed a motion for reconsideration of the appellate court's decision but, in the assailed Resolution dated April 10, 2003, it
was denied as the arguments therein were mere rehash of the same arguments raised in the petition and which had already been passed upon and
addressed at length by the appellate court in its decision. Hence, petitioner Tapispisan's recourse to this Court alleging that:

Respondent Court of Appeals committed serious error when it upheld the findings of the Civil Service Commission that protest will not lie in
absence of appointment/promotion.

II

Respondent Court of Appeals committed serious error when it upheld the findings of the Civil Service Commission that the protest was filed out
of time.

III

Respondent Court of Appeals committed serious error when it did not rule that the Transfer/Designation of respondents R[u]mbaoa and Teves
made pursuant to the May 30, 199[5] Division Memorandum No. 33 were violative of COMELEC Resolution No. 2731 which expressly bans the
transfer of officers and employees in the civil service during the election period designated from January 8, 1995 to June 7, 1995.9

The petition must fail.

Before addressing the issues raised by petitioner Tapispisan, it must be emphasized that prior to their designation, respondents Rumbaoa and
Teves had been appointed as Head Teacher III and Master Teacher II, respectively. In his Order dated April 10, 1996, Secretary Gloria found
these appointments to be in order. In particular, the appointment of respondent Teves as Master Teacher II was upheld, thus:

[W]e find that there was basis for her [respondent Myrna Teves] promotion to Master Teacher II, effective February 18, 1987, as shown by her
Performance Efficiency Ratings, which have always been OUTSTANDING for five consecutive years, the several awards conferred upon her by
civic organizations, the most significant one being the Outstanding Teacher of Pasay City in 1993, and more importantly, the recognition, trust
and confidence reposed upon her by the DECS Division authorities in her competence and dedication as head of school through the designations
given to be the OIC of another school when its head is on leave or on assignment elsewhere.10

Respondent Rumbaoa's appointment as Head Teacher III on March 15, 1995 was similarly upheld by Secretary Gloria, thus:

As basis for her promotion, it is shown that the Performance Efficiency Ratings of respondent Rumbaoa for four consecutive school years, 1991-
1995, were all OUTSTANDING, besides being recipient of several achievement awards for teaching excellence at the Villamor Air Base
Elementary School. More so, respondent Rumbaoa ranked No. 2 in the Ranked List of Promotables for the school year 1993-1994, and the total
points earned by her is 63.19 while that of complainant Tapispisan, for the same school year is only 53.38. Thus, even if the following school
year, complainant Tapispisan ranked No. 4 in the Ranked List of Promotables, the same will not reduce or lessen the rank of respondent Rumbaoa
already earned the previous year.

More importantly, respondent Rumbaoa, taking into consideration her leading rank for promotables for the school year 1993-1994, and the other
qualifications and achievements had already been promoted Elementary School [Head] Teacher III on March 15, 1995 prior to the holding of the
qualifying examinations wherein complainant Tapispisan ranked No. 4. Therefore, there was no need for her to take the examination, having been
already promoted to Elementary School [Head] Teacher III.11

The appointing power is vested in the Department Head/Secretary.12 Such power, however, may be delegated to the regional director subject to
the approval, revision, modification and reversal of the Department Secretary.13 It is not disputed that the appointments of respondents Rumbaoa
and Teves as Head Teacher III and Master Teacher II, respectively, had been made by the appropriate appointing authority. Further, such
appointments were duly attested by the CSC, which, under the Constitution, is the central personnel agency of the government charged with the
duty of determining questions of qualifications of merit and fitness of those appointed to the civil service.14 The appointing officer and the CSC
acting together, though not concurrently but consecutively, make an appointment complete.15 Accordingly, the appointments of respondents
Rumbaoa and Teves as Head Teacher III and Master Teacher II, respectively, are entitled to respect by the Court:

'[I]n the appointment or promotion of employees, the appointing authority considers not only their civil service eligibilities but also their
performance, education, work experience, trainings and seminars attended, agency examinations and seniority. Consequently, the appointing
authority has the right of choice which he may exercise freely according to his best judgment, deciding for himself who is best qualified among
those who have the necessary qualifications and eligibilities. The final choice of the appointing authority should be respected and left
undisturbed. Judges should not substitute their judgment for that of the appointing authority.16

The Court shall now address the contentions of petitioner Tapispisan regarding the designation of respondent Rumbaoa as OIC-Head Teacher of
P. Villanueva Elementary School and respondent Teves as OIC-Principal of Don Carlos Elementary School. Petitioner Tapispisan insists that
they are not qualified for the said positions contending that their names were not included in the 1994 Division List of Promotables because they
obtained failing marks in the qualifying examination conducted for the school year 1994-1995. Moreover, while their designation appears to be
temporary in nature, the intent to permanently appoint them to their respective assignments could be inferred from the tenor of Division
Memorandum No. 33.

Petitioner Tapispisan's arguments fail to persuade. As correctly held by the CA, it can be gleaned from the following rules of the CSC that only
appointments or promotions can be subject of a protest:

Sec. 40. Who and Where a Protest May Be Filed. - A qualified next-in-rank employee may file his protest with the Commission or any of its
Regional Offices where the protested appointment was acted upon, against such appointment made in favor of another if he is not satisfied with
the written special reason or reasons given by the appointing authority for such appointment.

To be considered as a "qualified next-in-rank" the employee should have been appointed permanent to a position previously determined to be
next-in-rank, and should meet the requirements for appointment thereto as previously determined by the appointing authority and approved by the
Commission.

Sec. 42. When to File Protest. - The protest may be filed with the Civil Service Commission within fifteen (15) days from notice by the protestant
of the issuance of the appointment or promotion. The protestant shall furnish the appointing authority or the office concerned a copy of his protest
and submit to the Commission proof of service thereof.

Sec. 47. Dismissal of Protest. - A protest shall be dismissed on any of the following grounds:

(d) No appointment has actually been issued to the protestee - .17

The CSC, in its Resolution No. 972501 dated April 14, 1997 dismissing petitioner Tapispisan's protest, declared that "only
appointments/promotions and not designation can be the subject of a protest. Designation, being temporary in nature, does not amount to the
issuance of an appointment, but is a mere imposition of additional duties."18 This construction given by the CSC should be given great weight and
respect. As this Court has time and again ruled: "[a]lthough technically not binding and controlling on the courts, the construction given by the
agency or entity charged with the enforcement of a statute should be given great weight and respect, particularly so if such construction - has
been observed and acted on for a long period of time."19

Indeed, there is a marked difference between an appointment and a designation. The Court had the occasion to expound the distinction in this
wise:

Appointment may be defined as the selection, by the authority vested with the power, of an individual who is to exercise the functions of a given
office. When completed, usually with its confirmation, the appointment results in security of tenure for the person chosen unless he is replaceable
at pleasure because of the nature of his office. Designation, on the other hand, connotes merely the imposition by law of additional duties of an
incumbent official - . It is said that appointment is essentially executive while designation is legislative in nature.

Designation may also be loosely defined as an appointment because it, likewise, involves the naming of a particular person to a specified public
office. That is the common understanding of the term. However, where the person is merely designated and not appointed, the implication is that
he shall hold the office only in a temporary capacity and may be replaced at will by the appointing authority. In this sense, the designation is
considered only an acting or temporary appointment, which does not confer security of tenure on the person named.20

The designation of respondent Rumbaoa as OIC-Head Teacher of P. Villanueva Elementary School and respondent Teves as OIC-Principal of
Don Carlos Elementary School merely imposed on them additional duties on top of those corresponding to their incumbent positions at Villamor
Air Base Elementary School. Such designation did not confer upon them security of tenure in the positions which they occupy in "acting"
capacity. This point was underscored by Secretary Gloria as he explained that the designation of respondents Rumbaoa and Teves as OIC-Head
Teacher and OIC-Principal, respectively, was temporary in nature, not a permanent transfer nor a promotion.

As a corollary, such designation did not violate Resolution No. 2731 dated December 5, 1994 of the Commission on Elections, which declared as
a prohibited act the transfer of officers and employees in the civil service during the election period from January 8, 1995 up to June 7, 1995.
Transfer is defined as "a movement from one position to another which is of equivalent rank, level or salary without break in service involving
the issuance of an appointment."21 The designation of respondents Rumbaoa and Teves did not involve a movement from one position to another.
Neither did it involve the issuance of any appointment to the said positions in their favor. In fact, respondents Rumbaoa and Teves retained their
incumbent positions at the Villamor Air Base Elementary School. As such, their designation could not be considered as a "transfer" within the
meaning of a prohibited act during the election period.

Even granting arguendo that a protest may be properly lodged against a designation, petitioner Tapispisan's protest against the designation of
respondents Rumbaoa and Teves on the ground that she is more qualified must still fail. In her 4th Indorsement22 dated August 10, 1995,
respondent Benzon, as Principal IV, Coordinating Principal of the South District, clarified that respondent Teves was considered for designation
as OIC-Principal of Don Carlos Elementary School because of her orientation and training. Aside from occupying the position of Master Teacher
II, respondent Teves carried with her three years of work experience as officer-in-charge of the same school. Respondent Benzon, likewise,
justified the designation of respondent Rumbaoa as OIC-Head Teacher of P. Villanueva Elementary School stating that she was qualified therefor
having been duly appointed Head Teacher III effective March 15, 1995. Further, she ranked No. 2 in the Division List of Promotables for the
school year 1993-1994.

Respondent Benzon's explanations were well taken by respondent Sibug, Schools Division Superintendent, in his 5th Indorsement23 dated August
15, 1995 and by respondent Rosas, Regional Director of the DECS for NCR in his 6th Indorsement24 dated September 1, 1995, as both officials
recommended the dismissal of petitioner Tapispisan's protest. As stated earlier, in his Order dated April 10, 1996, Secretary Gloria did dismiss
petitioner Tapispisan's protest.

Clearly, the designation of respondents Rumbaoa and Teves was well within the prerogative of the said respondents DECS officials. It behooves
the Court to refrain from unduly interfering with the exercise of such administrative prerogative. After all, it is well settled that administrative
decisions on matters within the jurisdiction of administrative bodies are entitled to respect and can only be set aside on proof of grave abuse of
discretion, fraud or error of law.25 None of these vices has been shown as having attended the designation of respondents Rumbaoa and Teves.

Considering the foregoing disquisition, the Court no longer finds it necessary to resolve the issue relating to the timeliness of petitioner
Tapispisan's protest.

In fine, the appellate court committed no reversible error when it affirmed the resolutions of the CSC dismissing the protest filed by petitioner
Tapispisan and upholding the designation of respondent Rumbaoa as OIC-Head Teacher of P. Villanueva Elementary School and respondent
Teves as OIC-Principal of Don Carlos Elementary School.

WHEREFORE, the petition is DENIED. The Decision dated December 12, 2002 and Resolution dated April 10, 2003 of the Court of Appeals
in CA-G.R. SP No. 45485 are AFFIRMED in toto.

SO ORDERED.

G.R. No. 154674             May 27, 2004

THE CIVIL SERVICE COMMISSION, petitioner,

vs.
FELICISIMO O. JOSON, JR., in his capacity as former Administrator of the Philippine Overseas Employment Administration
(POEA), respondent.

DECISION

CALLEJO, SR., J.:

This is a petition for review on certiorari of the Decision1 of the Court of Appeals dated August 12, 2002 reversing Resolution No. 002778 of the
Civil Service Commission (CSC) which denied the respondent’s request for payment of the salary of Priscilla Ong, as Executive Assistant IV in
the Office of the Philippine Overseas Employment Administrator (POEA) for the period of July 1, 1995 to October 31, 1995.

The antecedents are as follows.

On July 1, 1995, Respondent Felicisimo O. Joson, Jr., then Administrator of the Philippine Overseas Employment Administration (POEA)
appointed Priscilla Ong as Executive Assistant IV in his office under a contractual status. The appointment was made after the Department of
Budget and Management (DBM) thru Director Miguel B. Doctor2 approved his request for the creation of a contractual position of Executive
Assistant IV at the Office of the POEA Administrator, effective not earlier than July 1, 1995.

Subsequently, respondent Joson wrote the CSC requesting exemption from the rule requiring appointees to confidential staff positions to meet the
prescribed educational qualification.3 The educational requirement for the position of Executive Assistant is a "Bachelor’s degree relevant to the
job"4 and Priscilla Ong was not a college degree holder.

Acting upon this request, the petitioner CSC issued Resolution No. 956978 on November 2, 1995, approving the appointment of Ong under
a Coterminous Temporary status:

In this case, it is clear that Ong does not meet the educational qualification for the position of Executive Assistant IV. However,
considering that Ong has to her credit 65 units leading to a Bachelor’s degree and that the said position is coterminous with the
appointing authority and belongs to his confidential/personal staff, the proposed appointment of Ong may be allowed under
Coterminous Temporary status.
 WHEREFORE, the instant request of Administrator Felicisimo O. Joson, Jr. is hereby granted. Accordingly, the appointment of
Priscilla E. Ong to the position of Executive Assistant IV, POEA, may be approved under Coterminous Temporary status.5

However, on February 6, 1996, Director Nelson Acebedo of the CSC National Capital Region (NCR) issued a post audit report on the issuance of
Ong’s appointment made on July 1, 1995, and invalidated the same. A motion for reconsideration was filed, stressing, among others, that the
Department of Budget Management (DBM) allowed the POEA to create such a position not earlier than July 1, 1995 and that no less than the
petitioner itself approved the appointment under a coterminous temporary status. Upon the instructions of Director Acebedo, the effectivity of
Ong’s appointment was changed from July 1, 1995 to November 2, 1995.6

Considering the said adjustment in the effectivity date of Ong’s appointment, the respondent then requested approval for the payment of her
salary for services rendered for the period of July 1, 1995 to October 31, 1995.

The petitioner denied the request for the payment of Ong’s salary in Resolution No. 974094 dated October 16, 1997.7 Citing Rep. Act No. 7430
also known as the Attrition Law which, in part, states that no appointment shall be made to fill up a vacancy unless an authority has been granted
by it,8 the petitioner posited that the authority to fill the position was granted only on November 2, 1995 when it issued CSC Resolution No.
956978. The request for the payment of salary referred to the period prior to the date of authority to fill the position; such claim cannot, therefore,
be allowed. The petitioner concluded that, as the appointing authority, it is the respondent who shall be personally liable for the payment of
salaries as provided in Item 5(a), Part I, CSC MC No. 38, s. 1993, which states:

5. Liability of Appointing Authority and Other Officers

a. The appointing authority shall be personally liable for the salary of appointees whose appointments have been
disapproved for violation of pertinent laws such as RA 7041 and RA 7430.9

The respondent filed a motion for reconsideration, averring that Ong was appointed to a newly-created position which does not require any such
authority from the petitioner. The respondent emphasized in his motion that the DBM approved the creation of the position for Ong. He asserted
that, if at all, it is the POEA who should be liable under the principle of quantum meruit since the latter was the one benefited. Thus:

Admittedly, the herein movant requested an Authority to fill the said position which was not necessary under the premise since the
position involved was a newly created position. In the first place, the Department of Budget and Management through the Director of
CPCB granted the request for the creation of said position due to the dire need and necessity of said provision. POEA could not have
transgressed any provision of RA 7430 and its implementing rules when POEA appointed Ms. Ong to the said newly created position
on July 1, 1995….

… POEA should pay Ms. Ong for her services since POEA was the one benefited not the herein movant in his personal capacity. The
principle of quantum meruit dictates that not only is the one who rendered services who should paid (sic) but equally important, is that
the one benefited from such services must be the one who should pay the services. If the herein movant would be made personally
liable to pay for her services, just the same, it is tantamount to unjust enrichment on the part of the government at the movant’s
expense…10

On June 8, 1998, the petitioner issued Resolution No. 981399 denying the respondent’s motion for reconsideration.11 It affirmed its ruling that the
effectivity date of Ong’s appointment should be reckoned from November 2, 1995 when it granted the authority to the respondent to fill the
position, and not July 1, 1995 as asserted by the respondent. It also declared that Ong’s appointment was not included in the POEA’s Report on
Personnel Action (ROPA) submitted to the petitioner for the month of July 1995:

POEA, as an accredited agency is mandated by CSC rules to submit within fifteen (15) days of each ensuing month to the Civil
Service Regional office of Field Office concerned two copies of Monthly Report on Personnel Action, together with certified true
copy of appointments acted upon (Item, 2.2.7, Rule V, CSC Memorandum Circular No. 27, s. 1994). In the instant case, POEA failed
to comply with this rule when it did not include the appointment of Ong in its July ROPA.12

The petitioner also held that the POEA only submitted Ong’s appointment in its ROPA for the month of November 1995. Such belated report
rendered the appointment in July ineffective.13 The petitioner concluded that there was clearly no legal basis for the payment of Ong’s salary prior
to November 2, 1995, and that the principle of quantum meruit invoked by the respondent was not applicable.

The respondent moved for a clarification of CSC Resolution No. 981399, pointing out that the petitioner did not rule on the matter of POEA’s
alleged violation of the Attrition Law, particularly on the failure to secure "prior authority to fill." The respondent asserted that the POEA’s
alleged failure to include the proposed appointment of Ong in its July 1995 ROPA was justified because Ong’s appointment was still the subject
of a request for exemption from the requirement of Memorandum Circular (MC) No. 38, s. 1993. The respondent received CSC Resolution No.
956978 approving Ong’s appointment under a coterminous temporary status only on November 5, 1995; hence, the appointment was included
only in the November ROPA. The respondent pointed out that the task and duty of preparing and submitting the monthly ROPA lies with the
officials of the Personnel Department of the POEA. Finally, the respondent averred, if there was, indeed, a failure to comply with the CSC
Circular No. 27, Series of 1994, it would be quite unfair and unjust for the petitioner to order the respondent to pay the salary of Ong out of his
(the respondent’s) personal funds.
The petitioner denied the motion of the respondent in Resolution No. 991839 dated August 17, 1999. It held that the respondent as the appointing
authority, was accountable for all the appointments he issued; he cannot, thus, hide behind the mistakes of his subordinates. The petitioner also
reiterated its ruling that the appointment of Ong was made in violation of the CSC Law and its rules. As such, the respondent must assume
responsibility for the payment of Ong’s salary. Thus:

WHEREFORE, the CSC Resolution No. 981399 dated June 8, 1998 is hereby clarified. Accordingly, the payment of salaries, benefits
and other emoluments from July 1, 1995 to October 30, 1995 of Priscilla Ong, whose appointment was in violation of R.A. 7430
(Attrition Law), shall be the personal liability of then Administrator Felicisimo O. Joson.14

The respondent filed a motion for reconsideration of the resolution.

The petitioner treated the pleading as a second motion for reconsideration, and denied the same in Resolution No. 001956 dated August 30, 2000,
in this wise:

WHEREFORE, the second Motion for Reconsideration of Felicisimo O. Joson, Jr. is hereby DENIED. Accordingly, the CSC
Resolution No. 974094 dated October 16, 1997 stands.15

The petitioner filed another motion seeking for the reconsideration of the CSC Resolution No. 991839 pointing out that Ong may be considered
a de facto public officer who is entitled to the payment of salaries for actual services rendered. The CSC outrightly denied the motion in CSC
Resolution No. 002778 dated December 13, 2000:

WHEREFORE, the instant motion for reconsideration is hereby DENIED for lack of merit. Consequently, CSC Resolution No.
991839 dated August 17, 1999 stands. This case is considered closed and terminated.16

Unfazed, the respondent appealed the CSC resolutions to the Court of Appeals. On August 12, 2002, the CA rendered the assailed judgment in
favor of herein respondent, ruling that Ong was considered a de facto officer and is entitled to the payment of her salary. The dispositive portion
of the decision reads as follows:

WHEREFORE, in view of the foregoing, the instant petition for review is hereby GRANTED. Resolution No. 002778 dated 13
December 2000 rendered by public respondent Civil Service Commission, denying payment of Miss Priscilla Ong’s compensation
from 1 July 1995 to 31 October 1995, is hereby SET ASIDE.17

Hence, this petition for review on certiorari raising the lone issue that:

THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT PRISCILLA ONG IS ENTITLED TO PAYMENT OF HER
SALARIES FROM THE GOVERNMENT FOR BEING A DE FACTO OFFICER.

The petitioner maintains that Ong cannot be entitled to the payment of salary prior to November 2, 1995 because of the following: (a) Ong did not
possess the necessary qualification for the position; (b) her appointment was made in violation of the Civil Service Law and its rules; (c) there
was no prior authority to appoint, in violation of Rep. Act No. 7430; and, (d) the appointment was not reported in the July ROPA, making such
appointment ineffective.

We rule for the respondent.

The records show that the position of Executive Assistant IV in the POEA Administrator’s office was created with the approval of the DBM on
July 1, 1995. This was pursuant to a request made by the respondent for a position in his office under a contractual status. It is quite apparent that
the respondent intended the position for his confidential assistant, Priscilla Ong, whom he considered efficient and competent on the job, albeit
without a college degree. The respondent was aware of the appointee’s lack of qualification which is precisely the reason why he requested for an
exemption from the requirements of the MC No. 38 s. 1993, particularly on the educational requirement of appointees to confidential staff
positions.

On November 2, 1995, the petitioner granted the respondent’s request and stated that the appointment of Ong may be approved under a
coterminous temporary status.18

The task of the petitioner is to insure that the appointee has all the qualifications for the position; otherwise it disapproves the appointment.19 In
this case, the petitioner approved the appointment of Ong under a coterminous temporary status; coterminous, because the appointment shall only
be during the tenure of the appointing power; and temporary, because the appointee did not meet all the requirements for the position. As such,
the appointment could be recalled anytime. The petitioner took into account the fact that Ong was then enrolled in CAP College, Makati City and
had 65 units credited to her leading to a four-year course in Bachelor of Science in Business Administration, and that she just needed 61 units
more to complete the same.

Under Section 4, Rule V of the Omnibus Rules, Ong’s appointment is in order, viz:
 Except as otherwise provided herein, a person who meets all the requirements of the position including the appropriate civil service
eligibility shall be appointed to a position in the first and second levels. However, when the immediate filling of a vacancy becomes
necessary, taking into account the public interest, and a person with an appropriate civil service eligibility is not actually and
immediately available, a person without the appropriate civil service eligibility but who meets the other requirements of the position
may be appointed. His appointment shall be temporary for a period of not more than twelve (12) months and he may be replaced at
any time with one who has an appropriate civil service eligibility.

In approving the appointment of Ong, the petitioner took into account the exigency and urgency of filling up the position of Executive Assistant,
as embodied in the letter of the respondent for exemption from MC No. 38:

Our request for exemption from MC # 38 series of 1993 is anchored on the fact that I have no regular holder of an Executive
Assistant, although it is included in the POEA budget. As earlier mentioned in our letter-request, as the administrationship of POEA
keeps on changing, the Executive Assistant post remains attached to another employee who can not be asked to vacate the post
because of the security of tenure of the incumbent at the time the Executive Assistant post was declared confidential in nature. We
recognize and support the reason behind the promulgation of CSC MC # 38 series 1993. However, please consider the circumstances
behind this request for exemption. Ms. Ong has been the holder of the position since my appointment last July 1992 under the Ramos
government.

May I reiterate that the position of Ms. Ong is temporary in nature and co-terminous with my term. Moreover, she is now enrolled at
the CAP College taking up BS in Business Administration.20

The respondent reiterated the urgency of Ong’s appointment in his letter-request for the payment of Ong’s salary:

… Please note that the Office of the Administrator is the center of all communications coming in and out of POEA as well as the focal
point of all major activities whether internal or external concerns. As such, the smooth operations of this office would not have been
possible without the able and dedication of Ms. Ong who faithfully discharged her gargantuan duties as Executive Assistant to the
highest official of POEA. It would be an injustice to Ms. Ong if she is not properly compensated for a job very well done especially in
such a sensitive position.21

With the foregoing, it can not be said that for want of a college degree as required under MC No. 38, s. 1993 for confidential/personal positions,
Ong’s appointment was in contravention of the CSC Law and its rules. While it is conceded that the respondent intended the appointment of Ong
to be contractual only, the petitioner approved the same in Resolution No. 956978, under a Coterminous-Temporary status. The appointment of
Ong on July 1, 1995, is, therefore, valid.

We reject the petitioner’s contention that Ong’s appointment was invalid since the respondent appointed her to the position without first securing
an "authority to fill" as mandated by the second to the last paragraph of Section 3 of Rep. Act No. 7430. The said provision reads:

SECTION 3. Attrition. – Within five (5) years from the approval of the Act, no appointment shall be made to fill vacated positions
in any government office as a result of resignation, retirement, dismissal, death or transfer to another office of an officer or
employee: Provided, however, That this prohibition shall not apply in the following instances:

(a) Where the position is head of a primary organic unit such as chief of division;

(b) Where the position is the lone position in the organizational unit and it corresponds to a particular expertise that is
intrinsic to the desired basic capability of the unit concerned;

(c) Where the positions are basic positions for the initial operations of newly created or activated agencies or, in the case of
other agencies, where the positions are vital and necessary for the continued and efficient operation of said agencies;

(d) Where the positions are difficult to fill considering the qualifications required therefore, as in the case of doctors,
lawyers and other professionals;

(e) Where the positions are found in agencies declared to be understaffed;

(f) Positions in Congress or in the Judiciary;

(g) Appointments or designations extended by the President;

(h) Where the positions are found in local government units;

(i) Teaching personnel; and

 (j) Where the replacement come from existing employees.

Provided, further, That the exemptions from this prohibition shall require authorization by the Civil Service Commission; Provided,
finally, That no appointment shall be issued by the appointing authority nor approved by the Civil Service Commission
without said authorization.22

Appointments made in violation of this Act shall be null and void.

In CSC Resolution No. 974094, the petitioner denied the respondent’s motion for the POEA to pay Ong’s salary based on the second to the last
paragraph of Section 3, viz:

The Commission further finds no merit in the request because of the mandatory provision of Republic Act 7430 (Attrition Law) which
states as follows:

No appointment shall be made to fill up a vacancy unless an authority has been granted by the Commission. 23

But even a cursory reading of Section 3 of Rep. Act No. 7430 will readily show that it applies only to appointments to fill vacant
position in a government office as a result of resignation, retirement, dismissal, death, or transfer to another office of an officer or
employee within five years from the approval of the law. Under the law, attrition is defined as the reduction of personnel as a result of
resignation, retirement, dismissal in accordance with existing laws, death or transfer to another office.24

The appointment of Ong to the position of the Executive Assistant IV in the Office of the respondent is not covered by Rep. Act No. 7430
because Ong was appointed to a newly-created position as part of the confidential/personal staff of the respondent. The position was approved by
the DBM. The petitioner attested the appointment as coterminous temporary. The position to which Ong was appointed was not rendered vacant
as a result of the resignation, retirement, dismissal, death or transfer of an employee to another office, as provided by the law. Thus, the petitioner
cannot argue that the respondent violated the Attrition Law in appointing Ong.

The law must not be read in truncated parts; its provisions must be read in relation to the whole law. It is the cardinal rule in statutory
construction that a statute’s clauses and phrases must not be taken as detached and isolated expressions, but the whole and every part thereof must
be considered in fixing the meaning of any of its parts in order to produce a harmonious whole.25 Every part of the statute must be interpreted
with reference to the context, i.e., that every part of the statute must be considered together with other parts of the statute and kept subservient to
the general intent of the whole enactment.26

We find the respondent’s justification for the failure of the POEA to include Ong’s appointment in its ROPA for July 1995 as required by CSC
Memorandum Circular No. 27, Series of 1994 to be in order. The records show that the POEA did not include the contractual appointment of Ong
in its July ROPA because its request for exemption from the educational requisite for confidential staff members provided in MC No. 38 had yet
been resolved by the CSC. The resolution of the petitioner granting such request was received only in November, 1995. The POEA, thereafter,
reported the appointment in its November, 1995 ROPA.

Having been validly appointed to the position of Executive Assistant IV in the Office of the respondent, Ong is a de jure officer and not a de facto
officer as held by the Court of Appeals. The broad definition of what constitutes an officer de facto was formulated by Lord Holt in Parker v.
Kent,27 and reiterated by Lord Ellenborough and full King’s Bench in 1865 in Rex v. Bedford Level,28 "One who has the reputation of being the
officer he assumes and yet is not a good officer in point of law." A de facto officer is one who is in possession of the office and discharging its
duties under color of authority.29 By color of authority is meant that derived from an election or appointment, however irregular or informal, so
that the incumbent is not a mere volunteer. The difference between the basis of the authority of a de jure officer and that of a de facto officer is
that one rests on right, the other on reputation. It may be likened to the difference between character and reputation. One is the truth of a man, the
other is what is thought of him."30 It is the color of authority, not the color of title that distinguishes an officer de facto from a usurper.31 Being
a de jure officer, Ong is entitled to receive all the salaries and emoluments appertaining to the position.32

Irrefragably, Ong assumed the position and discharged her functions as Executive Assistant IV on July 1, 1995. Thenceforth, she was entitled to
the payment of her salary, as provided for in Section 10 of Rule V of the Omnibus Rules of the Civil Service Commission on the matter of
Appointments, viz:

An appointment issued in accordance with pertinent laws and rules shall take effect immediately upon its issuance by the appointing
authority, and if the appointee has assumed the duties of the position, he shall be entitled to receive his salary at once, without
awaiting the approval of his appointment by the Commission. The appointment shall remain effective until disapproved by the
Commission. In no case shall an appointment take effect earlier than the date of its issuance.33

MC No. 38, s. 1993, likewise reads:

7. Effectivity of Appointment
 a. The effectivity of an appointment shall be the date of actual assumption by the appointee but not earlier than the date of
issuance of the appointment, which is the date of signing by the appointing authority.

b. No appointment shall be made earlier than the date of issuance, except in the case of change of status in view of
qualifying in written examination, the effectivity of which is the date of release of the result of the examination. However,
the issuance of such appointments shall be within the period of the temporary appointment or provided the temporary
appointment has not yet expired…

Moreover, the Court of Appeals took note of CSC Resolution No. 953263 dated May 23, 1995 which states, thus:

… If the appointment was disapproved on grounds which do not constitute a violation of the civil service law, such as the
failure of the appointee to meet the Qualification Standards (QS) prescribed for the position, the same is considered
effective until disapproved by the Commission or any of its regional or field offices. The appointee is meanwhile
entitled to payment of salaries from the government. Furthermore, if a motion for reconsideration or an appeal from the
disapproval is seasonably filed with the proper office the appointment is still considered to be effective. The disapproval
becomes final only after the same is affirmed by the Commission.34

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The assailed Decision of the Court of Appeals, insofar as it is consistent
with this Decision, is AFFIRMED.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 75025 September 14, 1993

VICENTE GARCIA, petitioner,
vs.
THE HONORABLE CHAIRMAN, COMMISSION ON AUDIT, THE HONORABLE MINISTER, LAND TRANSPORTATION AND
COMMUNICATIONS, THE REGIONAL DIRECTOR, TELECOM REGIONAL OFFICE NO. IV, respondents.

Eulogio B. Alzaga for petitioner.

The Solicitor General for respondents.

BELLOSILLO, J.:

Petitioner comes to us on a petition for review on certiorari of the decision of 23 July 1985 of respondent Commission on Audit (COA) denying
his claim for payment of back wages, after he was reinstated to the service pursuant to an executive clemency. He prays for the extraordinary
remedy of mandamus against public respondents to enforce his claim.

Petitioner was a Supervising Lineman in the Region IV Station of the Bureau of Telecommunications in Lucena City. On 1 April 1975, petitioner
was summarily dismissed from the service on the ground of dishonesty in accordance with the decision of the then Ministry of Public Works,
Transportation and Communications in Adm. Case No. 975 for the loss of several telegraph poles which were located at the Sariaya-Lucena City
and Mauban-Sampaloc, Quezon, telecom lines. Petitioner did not appeal from the decision.

Based on the same facts obtaining in the administrative action, a criminal case for qualified theft was filed against petitioner with the then Court
of First Instance (now Regional Trial Court) of Quezon. On 23 January 1980, the trial court rendered its decision acquitting petitioner of the
offense charged.

Consequently, petitioner sought reinstatement to his former position in view of his acquittal in the criminal case. In an indorsement dated 7 April
1980, petitioner's request to be reinstated was denied by the Bureau of Telecommunications. Hence, petitioner pleaded to the President of the
Philippines for executive clemency.
On 26 August 1981, acting on the favorable indorsements of the then Ministry of Transportation and Communications and the Civil Service
Commission, Deputy Presidential Executive Assistant Joaquin T. Venus, Jr., by authority of the President, per Resolution No. O.P. 1800, granted
executive clemency to petitioner.

Petitioner thereafter filed with respondent COA a claim for payment of back salaries effective 1 April 1975, the date of his dismissal from the
service. This was denied by the COA in its 5th Indorsement dated 12 October 1982 on the ground that the executive clemency granted to him did
not provide for the payment of back salaries and that he has not been reinstated in the service.

It appears that petitioner was recalled to the service on 12 March 1984 but the records do not show whether petitioner's reinstatement was to the
same position of Supervising Lineman.1

Petitioner again filed a claim to recover his back salaries for the period from 1 April 1975, the date of his dismissal, to 12 March 1984, when he
was reinstated. In Decision No. 362 embodied in its 3rd Indorsement dated 23 July 1985, respondent COA denied the claim stating that the
executive clemency was silent on the payment of back wages and that he had not rendered service during the period of his claim.

Aggrieved, petitioner appealed the COA decision of 23 July 1985 to the Office of the President. On 21 April 1986, Deputy Executive Secretary
Fulgencio S. Factoran, Jr., by authority of the President, denied the appeal "due to legal and constitutional constraint,"2 holding that this Court is
the proper forum to take cognizance of the appeal on certiorari  from the decision of the COA, citing Art. XII-(D), Sec. 2, par. 2, of the 1973
Constitution (now Art. IX-[A], Sec. 7, of the 1987 Constitution).

Hence, petitioner filed the instant petition on the issue of whether he is entitled to the payment of back wages after having been reinstated
pursuant to the grant of executive clemency.

In his comment to the petition, the Solicitor General recommends that the petition be given due course and the petitioner be awarded back wages
to be determined in the light of existing laws and jurisprudence. The Solicitor General submits that the award is implicit in the grant of executive
clemency, the ultimate objective of which is to accord full justice to petitioner.

On the other hand, the COA asks this Court to deny the petition for the following reasons: (a) petitioner's acquittal in the criminal case did not
necessarily free him from administrative liability; (b) petitioners unexplained failure to appeal the decision in the administrative case was
tantamount to a waiver or renunciation of his right to back wages; (c) the executive clemency was granted to petitioner for the purpose of
reinstatement only since it was silent on the matter of back wages; (d) the award of back wages is allowed only if the respondent is exonerated
from the administrative charge that his suspension or dismissal is declared illegal or unjustified by the court; and, (e) petitioner did not render any
service during the period before his reinstatement, hence, he is not entitled to back wages based on the "no service, no pay" rule.

The petition is meritorious.

Every civilized country recognizes, and has therefore provided for, the pardoning power to be exercised as an act of grace and humanity, in
proper cases. Without such a power of clemency, to be exercised by some department or functionary of a government, a country would be most
imperfect and deficient in its political morality and in that attribute of Deity whose judgments are always tempered with money.3

Our Constitution reposes in the President the power and the exclusive prerogative to extend executive clemency under the following
circumstances:

Except in cases of impeachment or as otherwise provided in this Constitution, the President may grant reprieves,
commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment.

He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress.4

From among the different acts of executive clemency spelled out above, the clemency granted to petitioner in the instant case partakes of the
nature of an executive pardon. A reading of Resolution No. 1800 partly quoted hereunder is enlightening:

In a 3rd Indorsement dated September 5, 1980, the Director of Telecommunications interposed no objection to the petition,
while the Minister of Transportation and Communications, in his 4th Indorsement dated November 17, 1980, favorably
recommended the grant of executive clemency to petitioner for the reason that "while it is a rule that an administrative case
is separate and distinct from a criminal case and an acquittal in the latter case dos not ipso facto result in the exoneration in
the former case, yet an exception could arise if the basis for the acquittal was the innocence of the accused as in the case of
petitioner Garcia.

Asked for comment pursuant to Section 43 of Presidential Decree No. 807, the Civil service Commission recommends the
grant of executive clemency to petitioner in view of the findings of the court that —
 instead of coming forward to the defense of the accused who actually was authorized to uproot or
recover the poles in question and of commending the latter for his high sense of responsibility in
preventing losses to the government, said high officials had even the temerity to disown and deny
the authority they gave to the accused resulting in his separation from the service and having him all
alone in defending himself against the accusation of the very government he tried to protect.

After a careful study, this Office is inclined to grant executive clemency to petitioner in the light of this decision of the
court acquitting him of the crime of qualified theft which was based on the same acts obtaining in Administrative Case No.
975 against him, coupled with the favorable recommendation of the Minister of Transportation and Communications and
the Civil Service Commission.

In view of the foregoing, petitioner Vicente Garcia is hereby granted executive clemency.5

Time and again this Court has unfolded the effects of a pardon upon the individual to whom it is granted. In Monsanto v. Factoran,6 we have
firmly established the general rule that while a pardon has generally been regarded as blotting out the existence of guilt so that in the eyes of the
law the offender is as innocent as though he never committed the offense, it does not operate for all purposes. The very essence of a pardon is
forgiveness or remission of guilt and not forgetfulness . It does not erase the fact of the commission of the crime and the conviction thereof.
Pardon frees the individual from all the penalties and legal disabilities and restores to him all his civil rights. Unless expressly grounded on the
person's innocence, it cannot bring back lost reputation for honesty, integrity and fair dealing. The pardoned offender regains his eligibility for
appointment to public office which was forfeited by reason of the conviction of the offense. But since pardon does not generally result in
automatic reinstatement because the offender has to apply for reappointment, he is not entitled to back wages.

But, stated otherwise, if the pardon is based on the innocence of the individual, it affirms this innocence and makes him a new man and as
innocent; as if he had not been found guilty of the offense charged.7 When a person is given pardon because he did not truly commit the offense,
the pardon relieves the party from all punitive consequences of his criminal act, thereby restoring to him his clean name, good reputation and
unstained character prior to the finding of guilt.

In the case at bar, petitioner was found administratively liable for dishonesty and consequently dismissed from the service. However, he was later
acquitted by the trial court of the charge of qualified theft based on the very same acts for which he was dismissed. The acquittal of petitioner by
the trial court was founded not on lack of proof beyond reasonable doubt but on the fact that petitioner did not commit the offense imputed to
him. Aside from finding him innocent of the charge, the trial court commended petitioner for his concern and dedication as a public servant.
Verily, petitioner's innocence is the primary reason behind the grant of executive clemency to him, bolstered by the favorable recommendations
for his reinstatement by the Ministry of Transportation and Communications and the Civil Service Commission.

The bestowal of executive clemency on petitioner in effect completely obliterated the adverse effects of the administrative decision which found
him guilty of dishonesty and ordered his separation from the service. This can be inferred from the executive clemency itself exculpating
petitioner from the administrative charge and thereby directing his reinstatement, which is rendered automatic by the grant of the pardon. This
signifies that petitioner need no longer apply to be reinstated to his former employment; he is restored to his office ipso facto upon the issuance of
the clemency.

Petitioner's automatic reinstatement to the government service entitles him to back wages.8 This is meant to afford relief to petitioner who is
innocent from the start and to make reparation for what he has suffered as a result of his unjust dismissal from the service. To rule otherwise
would defeat the very intention of the executive clemency, i.e., to give justice to petitioner. Moreover, the right to back wages is afforded to those
with have been illegally dismissed and were thus ordered reinstated or to those otherwise acquitted of the charges against them.9 There is no
doubt that petitioner's case falls within the situations aforementioned to entitle him to back wages.

Further, it is worthy to note that the dismissal of petitioner was not the result of any criminal conviction that carried with it forfeiture of the right
to hold public office, but is the direct consequence of an administrative decision of a branch of the Executive Department over which the
President, as its head, has the power of control. The President's control has been defined to mean "the power of an officer to alter or modify or
nullify or set aside what a subordinate officer had done in the performance of his duties and to the judgment of the former for the latter." 10 In
pardoning petitioner and ordering his reinstatement, the Chief Executive exercised his power of control and set aside the decision of the Ministry
of Transportation and Communications. The clemency nullified the dismissal of petitioner and relieved him from administrative liability. The
separation of the petitioner from the service being null and void, he is thus entitled to back wages.

After having been declared innocent of the crime of qualified theft, which also served as basis for the administrative charge, petitioner should not
be considered to have left his office for all legal purposes, so that he is entitled to all the rights and privileges that accrued to him by virtue of the
office held, including back wages. 11

Established jurisprudence fixes recovery of back wages to a period of five (5) years to be paid an illegally dismissed government employee who
has been ordered reinstated. 12 The cases heretofore decided by this Court show that petitioners therein were employees of local governments who
were removed from office by their local officials. The reasons given for their removal were abolition of office or position, reduction of work
force, or lack of funds on the part of the local governments concerned, which reasons were found by this Court to be either devoid of factual basis
or not sufficiently proven, otherwise, their dismissal would have been valid and justified. In contrast, the case before us is different, involving as
it does circumstances that impel us to deviate from the general rule previously laid down on the recovery of back wages for five (15) years.
Petitioner's reinstatement in the instant case which was ordered pursuant to a grant of executive clemency was effected not because of lack of
sufficient proof of his commission of the offense but that, more importantly, he did not commit the offense charged. Verily, law, equity and
justice dictate that petitioner be afforded compassion for the embarrassment, humiliation and, above all, injustice caused to him and his family by
his unfounded dismissal. This Court cannot help surmising the painful stigma that must have caused petitioner, the incursion on his dignity and
reputation, for having been adjudged, albeit wrongfully, a dishonest man, and worse, a thief. Consequently, this Court finds it fair and just to
award petitioner full back wages from 1 April 1975 when he was illegally dismissed, to 12 March 1984 when he was reinstated. The payment
shall be without deduction or qualification.

WHEREFORE, the petition is GRANTED. The decision of respondent Commission on Audit dated 23 July 1985 is REVERSED and SET
ASIDE, and a new one entered ordering public respondents, the Chairman of the Commission on Audit, the Minister (now Secretary) of Land
Transportation and Communications, the Regional Director of Telecom Regional Office No. IV, or whoever may be sitting in office in their
stead, to pay the full amount of petitioner's back salaries from 1 April 1975 to 12 March 1984 based on his latest salary scale.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

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.

Padilla, Jimenez, Kintanar and Asuncion Law Office for petitioner.

CRUZ, J.:

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. These are the legal issues. The facts are as follows:

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
1

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 appointed by the President.

His argument is that in view of the security of tenure enjoyed by the above-named officials, it was "beyond the prerogatives of the President"
to require them to submit courtesy resignations. Such courtesy resignations, even if filed, should be disregarded for having been submitted
"under duress," as otherwise the President would have the power to remove career officials at pleasure, even for capricious reasons. In
support of this contention, he invokes Ortiz vs. Commission on Elections,  where we observed that "to constitute a complete and operative
2

act of resignation, the officer or employee must show a clear intention to relinquish" and that "a courtesy resignation cannot properly be
interpreted as a resignation in the legal sense for it is not necessarily a reflection of a public official's intention to surrender his position." He
concludes that as his removal was illegal, there was no vacancy in the disputed office to which respondent Sarmiento could have been
validly appointed.

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:

CERTIFICATION

This is to certify that per records of the Career Executive Service Board (CESB), Mr. Tomas D. Achacoso III has not participated in a Career
Executive Service Development Program (CESDP) and is not a CES eligible. This is to certify further that Mr. Achacoso was not appointed to
a rank in the CES and is not therefore a member of the Career Executive Service.

x x x           x x x          x x x

(Sgd.) ELMOR D. JURIDICO

Executive Director

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.)

The respondents contend that as the petitioner was not a career executive service eligible at the time of his appointment, he came under the
exception to the above rule and so was subject to the provision that he "shall subsequently take the required Career Executive Service
examination and that he shall not be promoted to a higher rank until he qualifies in such examination." Not having taken that examination, he
could not claim that his appointment was permanent and guaranteed him security of tenure in his position.

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 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. 3

The appointment extended to him cannot be regarded as permanent even if it may be so designated.

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
4

position under the condition that he shall surrender the office once he is called upon to do so by the appointing authority.

In these circumstances, the acting appointee is separated by a method of terminating official relations known in the law of public officers as
expiration of the term. His term is understood at the outset as without any fixity and enduring at the pleasure of the appointing authority.
When required to relinquish his office, he cannot complain that he is being removed in violation of his security of tenure because removal
imports the separation of the incumbent before the expiration of his term.  This is allowed by the Constitution only when it is for cause as
5

provided by law. The acting appointee is separated precisely because his term has expired. Expiration of the term is not covered by the
constitutional provision on security of tenure.

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. 6

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. This is unacceptable. Even if that intention were
assumed, it would not by itself alone make his appointment permanent. Such an appointment did not confer on the petitioner the appropriate
civil service eligibility he did not possess at the time he was appointed, nor did it vest him with the right to security of tenure that is available
only to permanent appointees.

The case of Luego vs. Civil Service Commission  is not applicable because the facts of that case are different. The petitioner in Luego
7

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. The other cases he
cites, viz. Pamantasan ng Lungsod ng Maynila vs. Intermediate Appellate Court,  Palma-Fernandez vs. De la Paz,  and Dario vs. Mison,  are
8 9 10

also not pertinent because they also involved permanent appointees who could not be removed because of their security of tenure.

It should be obvious from all the above observations that the petitioner could have been validly replaced even if he had not filed his courtesy
resignation. We therefore do not have to rule on its legality. Suffice it to say that it could have been a graceful way of withdrawing him from
his office with all the formal amenities and no asperity or discord if only he had not chosen to contest it. But it was his right to do so, of
course, although his challenge has not succeeded.

WHEREFORE, the petition is DISMISSED, with costs against the petitioner. It is so ordered.

EN BANC

[G.R. No. 89618. December 20, 1990.]

HON. RAUL S. MANGLAPUS, in his capacity as Secretary of Foreign Affairs, Petitioner, v. HON. ANDRES E. MATIAS, Judge of the
Regional Trial Court of Manila (Branch 45) and GAVINO P. ABAYA, Respondents.

Antonio P. Abaya for Respondents.

DECISION

NARVASA, J.:

In early 1988, Gavino P. Abaya, Jr., who up to that time had been serving in the Philippine Mission to the United Nations in New York from
September 1, 1971 — continuously except for a brief period in 1983-1984 when he was recalled to the Home Office — received an
Assignment Order (No. 10-88 dated January 29, 1988) transferring him to the Philippine Embassy in Beijing as Minister-Counsellor and
Consul General. 1 On March 18, 1988 he requested deferment of his transfer to his new assignment in Beijing, to "give him ample time to
wind up official and pending family matters." 2

On April 15, 1988 the Office of Personnel and Management Services recommended to the Secretary of the Department of Foreign Affairs —

1) the appointment, in place of Abaya, of Ariel Abadilla to the Embassy at Beijing, Abaya’s suitability having been questioned by Ambassador
Rodolfo Severino, who had expressed preference for said Ariel Abadilla, then assigned at Seattle; and

2) Abaya’s recall to the Home Office in line with the Department’s program of recalling "overstaying" officers and employees assigned abroad.
3

It appears that several days later, Chairman Ramon Diaz of the Presidential Commission on Good Government (PCGG) requested that Abaya
be allowed to testify before a grand jury then investigating the Marcoses’ ill-gotten wealth in the United States. Acting thereon, and
apparently also on the recommendation of the Office of Personnel and Management Services (OPMS), Foreign Affairs Secretary Manglapus
sent a cablegram dated April 26, 1988 to Ambassador Emmanuel Pelaez at the Philippine Mission to the United Nations —

1) advising of the waiver of Abaya’s diplomatic immunity "to allow him to appear and testify before (said) U.S. grand jury;"

2) revoking Assignment Order No. 10-88 assigning Abaya to Beijing and directing that he remain in New York until further instructions; and

3) directing that the Home Office be apprised "of developments, particularly (of the) termination of Mr. Abaya’s testimony." 4

On September 19, 1988, the OPMS addressed a memorandum to Secretary Manglapus reiterating its recommendation to recall Abaya from
New York to the home office. It stated that although Abaya’s stay in New York had been extended on request of the PCGG, there was "no
indication that he could appear in court or grand jury in the U.S. as it would entail a waiver of his diplomatic immunity." 5 Secretary
Manglapus then issued on December 20, 1988, Assignment Order No. 186-88 recalling Abaya, effective immediately, "to the Home Office
from the Philippine Mission to the United Nations, New York." A copy of this recall order was received by Abaya on December 28, 1988. 6

More than a month later, Abaya sent a telex message to the home office dated January 30, 1989, requesting reconsideration of the recall
order and a deferment of its effectivity, for the reason that in the case of eight (8) members of the UN Mission, their recalls were allegedly
made effective "some 16 to 23 months from receipt of recall orders," this being "in consonance with Foreign Service Circular No. 11-89" dated
January 11, 1989 providing that "recall orders are served one year in advance to cushion those concerned against harsh transition." 7
On February 13, 1989, Ambassador Teehankee (Permanent Representative to the UN) wired the home office — his telex message being
identified as ZMS-41-89 — asking for advice on the action taken on Abaya’s motion for reconsideration, stating that "since notice of his recall
order was received by him on 28 Dec. 1988 his usual 60-day period to wind up business expires on 28 Feb. 1989," In response, Secretary
Manglapus sent the following telex message under date of March 13, 1989, to wit: jgc:chanrobles.com.ph

". . . URTEL ZMS-41-89 FOR GAVINO ABAYA: IN VIEW REPRESENTATIONS MADE BY ATTY. ANTONIO ABAYA, YOU ARE DIRECTED REPORT
MANILA 1 JUNE 1989 WITHOUT FAIL. OTHERWISE, DFA MIGHT BE COMPELLED TO DECLARE YOU AWOL AND DROP YOU FROM ITS ROSTER.
PLEASE NOTE THAT THERE IS NO SPECIAL TREATMENT GIVEN TO EIGHT STAFF MEMBERS OF MISUNPHIL WHO ARE BEING RECALLED UNDER
NORMAL CIRCUMSTANCES. YOUR SERVICE RECORDS SHOW THAT YOU STAYED IN NEW YORK FOR 13 YEARS INITIALLY IN VIOLATION OF
MAXIMUM STAY ONLY FOR 3 YEARS. AFTER SERVING FOR BARELY A YEAR IN MANILA, AGAIN IN VIOLATION OF RULES, YOU WERE
ASSIGNED TO NEW YORK, AGAIN IN VIOLATION OF RULES. IT IS CLEAR THAT REPEATED VIOLATIONS HAVE BEEN COMMITTED WHICH IS
NOT TRUE WITH YOUR CO-WORKERS THAT POST. FURTHER, PLEASE NOTE THAT MEMO CIRCULAR CITED IS SUBJECT TO D.O. 42-88 WHICH
EMPHASIZES SECFORAF’S PREROGATIVE TO REDEPLOY DFA STAFF IN INTEREST OF SERVICE AND IN EXERCISE OF HIS POWER OF
SUPERVISION AND CONTROL. END." cralaw virtua1aw library

Abaya sent a telex communication to Secretary Manglapus dated March 20, 1939, duly noting the latter’s instructions to report at Manila on
June 1, 1989, and stating that: (1) the period of his initial tour of duty at the UN Mission at New York was not 13 years but 11 years and
some 7 months, and he served in the home office for 14 months before being reassigned to New York in June, 1984; (2) that these
assignments involved no violation of rules but had been "lawfully made by the then Minister of Foreign Affairs in the exercise of his legal
prerogative to redeploy DFA staff in (the) interest of (the) service — a prerogative of any secretary of foreign affairs, past or incumbent . . .;"
(3) that said prerogative was not being disputed, the issue being his right to "one-year advance notice of recall orders," a right
unconditionally conferred by FS Circular 11-89; and (4) that his request for one-year notice should thus be granted. 8

On April 20, 1989, Abaya having apparently made no move to return to Manila, Secretary Manglapus directed that if Abaya was unable to
return to the home office, "he should file leave application with salaries computed at home office rate and payable in pesos." 9

On May 2, 1989, Abaya went to court. He filed a petition for certiorari, prohibition and mandamus (with application for preliminary injunction)
against Secretary Manglapus with the Regional Trial Court of Manila. 10 The case was docketed as Sp. Proc. No. 89-48665 11 and assigned to
Branch 45, presided over by Hon. Andres E. Matias. 12

On May 18, 1989, Secretary Manglapus moved to dismiss the action on the ground that (1) Abaya’s "recall to the Home Office is an exercise
of respondent Secretary’s prerogative and discretion which may not be interfered with by the Court," and (2) petitioner "has not exhausted
his administrative remedies." 13

After both incidents (the matter of the preliminary injunction and the motion to dismiss) had been heard and extensively argued, the Trial
Court denied the motion to dismiss by Order dated June 5, 1989 and granted the application for preliminary injunction. 14 The Court ruled
that Manglapus had no authority to disregard Foreign Service Circular No. 11-89; he had not shown "with convincing evidence that the
‘exigencies of the service’ require the immediate and peremptory recall" of Abaya; Abaya’s case was substantially identical to those of eight
(8) other members of the Philippine Mission who had been accorded advance notice of their recall of more than a year; and since only a
question of law was involved, the relevant facts not being in dispute, the doctrine of exhaustion of remedies had no application. chanrobles.com.ph : virtual law library

A motion for reconsideration was filed on July 1, 1989 in Secretary Manglapus’ behalf; this was denied by Order dated July 25, 1989.

On August 17, 1989, Abaya still having made no move to return to the home office, Secretary Manglapus wired the following instructions to
the UN Mission at New York: "CONSISTENT WITH DEPARTMENT REGULATIONS GAVINO ABAYA WILL BE PAID HIS SALARY AT HOME OFFICE
RATES STARTING 01 JUNE 1989 . . . ISSUE OF RECALL NOW PENDING WITH SUPREME COURT . . ." 15

On August 29, 1989, the Secretary of Foreign Affairs, through the Solicitor General, instituted the instant action of certiorari and prohibition
praying for invalidation of the Trial Court’s Orders of June 5, 1989 and July 25, 1989 because supposedly "issued in excess of jurisdiction or
with grave abuse of discretion amounting to lack of jurisdiction." He submits that —

1) respondent Court had no jurisdiction over the nature of the action because: chanrob1es virtual 1aw library

a) Abaya’s "recall to the Home Office was an exercise of petitioner’s prerogative and discretion which may not be interfered with by the
court;"

b) "Circular 11-89, being a mere administrative issuance of petitioner, does not confer a legal right on Abaya upon which any action in a court
of law may be predicated;"

2) Abaya has no cause of action, not having exhausted his administrative remedies; and

3) Abaya "has not shown that he will undergo ‘harsh transition’ if recalled to the Home Office." cralaw virtua1aw library

Abaya’s entire case turns about Circular 11-89. It is the foundation for his claim that he is entitled to a one-year period to wind up his affairs
prior to transferring to a new assignment, and that he was being discriminated against, considering that eight (8) other members of the staff
of the UN Mission had been accorded more than one year advance notice of their recall or assignment to new posts.

It is noteworthy that when Circular 11-89 was promulgated by respondent Manglapus on January 11, 1989, all the relevant events generating
the controversy had already taken place, to wit: chanrob1es virtual 1aw library

1. Abaya was ordered transferred to the Beijing Embassy; this, on January 29, 1988.

2. A month and a half later, or on March 18, 1988 he requested deferment of the effectivity of his new assignment for six (6) months to "give
him ample time to wind up official and pending family matters." cralaw virtua1aw library

3. The OPMS proposed (a) Abaya’s recall to the Home Office and (b) revocation of his assignment to Beijing because Ambassador Rodolfo
Severina, under whom he would have served, had questioned his (Abaya’s) suitability and expressed preference that in his stead, Ariel
Abadilla of Seattle be assigned.chanrobles lawlibrary : rednad

4. After Abaya was directed to stay on at New York in the expectation of his testifying before a grand jury (pursuant to a PCGG request) the
OPMS again proposed his recall to the Home Office.
5. As recommended, Abaya’s recall to the Home Office was again directed, advice thereof having been received by him on December 28,
1988.

Certain conclusions are necessarily generated by these facts.

1. During the period from January 29, 1988 (date of the order for his transfer to Beijing) to December 28, 1988 (date of receipt by him of the
reiterated order for his recall to Manila), Abaya could not but have known that whatever be his new assignment — Manila or Beijing — he
could no longer stay on at the New York Mission; this, notwithstanding the interim order that he stay at New York to give evidence before a
grand jury, the stay thus directed being obviously a temporary one, at best.

2. As of December 28, 1988 — when he received notice of the iterated order for his recall to Manila — eleven (11) months had already
elapsed since his transfer to Beijing was ordered, and nine (9) months, since he requested for deferment of his transfer for six (6) months.

3. As of December 28, 1988, he had no "right" to one-year advance notice of any recall order, since that was granted only on January 11,
1989, when Manglapus issued Circular 11-89.

4. Considering that he knew all along that he could no longer count on staying indefinitely in New York and that there was no alternative to
his accepting his recall or reassignment; considering that he had already had more than the six-month extension requested by him on March
18, 1988 to "give him ample time to wind up official and pending family matters;" and considering that he makes no pretense that he has not
yet been able, within that time, to "wind up official and pending family matters," there appears to be no reason for him to refuse to comply
with the recall order received by him on December 28, 1988. Indeed, the only reason advanced by him for seeking a one-year extension of
stay in his New York post was simply and exclusively because other foreign service officers or employees had been given more than a year to
wind up their affairs, and the grant of such an extension to him would be in consonance with a subsequently promulgated circular (No. 11-
89). Clearly, the request for extension was unreasonable under the uncontroverted facts of the case.

5. Given the foregoing admitted facts, too, no "harsh transition" could possibly attend Abaya’s recall from New York to the Home Office in
Manila; hence, there is no reason to apply Circular No. 11-89, which notes "that recall orders are served one year in advance to cushion those
concerned against harsh transition." Given these same facts, the circumstance that other officers and employees of the Foreign Service might
have received more than one year’s advance notice of their recall orders, is utterly inconsequential.

6. The logical inference from all these undeniable considerations is that Abaya simply wished to take advantage of Circular 11-89 for purely
personal motives and considerations, without regard to the interests of the service, or to set at naught the orders of his superior because he
did not agree with them, or just to spite the latter. This circumstance also exposes the paucity of his claim to equal treatment in relation to
the eight whose case he would cite as precedent.

7. In any event, as of date hereof, considerably more than a year has already elapsed since December 28, 1988 when he received notice of
the last order for his recall to the Home Office. His insistence on one-year advance notice of recall, counted from such a date, has clearly
become moot and academic. This would appear reason enough to dismiss Abaya’s petition at this time. cralawnad

Be this as it may, it may not be amiss also to look further into the merits of Abaya’s claim. There is no question, indeed it is explicitly
admitted by Abaya himself, that the Secretary of Foreign Affairs has the authority under the law to recall and reassign officers as the interests
of the service may in his discretion require. Section 6, 16 Republic Act No. 708 as amended, provides as follows: jgc:chanrobles.com.ph

". . . Assignments and Transfers. — A Foreign Affairs Officer may be assigned by the Secretary to serve in the department or in a diplomatic
or consular post abroad: Provided, however, That the minimum period which he may serve in any foreign post shall be one year and the
maximum period four years, except in case of emergency or extraordinary circumstances, in which event he may be transferred from one
foreign post to another or to the Department by order of the Secretary without regard to his length of service in his former post." cralaw virtua1aw library

Where an officer has served in a foreign post for at least four years, as in Abaya’s case, it would appear that the Secretary’s power of
assignment and transfer rests entirely in his discretion, guided chiefly by his perception of what is necessary for the good of the service.
There is no need in that event that some "emergency or extraordinary circumstances" exist, this being required only where the officer has
served less than four years in a foreign post.

Abaya’s reassignment to Beijing in January, 1988, and his recall to the Home Office reiterated in December, 1988, were thus well within the
authority granted to the Foreign Affairs Secretary by law. Those acts were based on reasoned conclusions of the OPMS and the head of the
Beijing Embassy — including the fact that, as affirmatively appears on the record, Abaya is really an "overstaying" officer in the UN Mission,
having served in that post for much more than the maximum term of four (4) years prescribed by Section 6 of the Foreign Service Law, as
amended — and hence, could not in truth be said to be in any sense capricious or whimsical, no matter how debatable Abaya might think the
validity of those conclusions is.

The question that now arises is whether or not Circular No 11-89 subsequently issued by the Secretary himself, 17 invalidated his prior acts,
just described. Said circular reads as follows: jgc:chanrobles.com.ph

"The Department regrets its inability to extend the tours of duty of foreign service personnel for reasons of health, schooling of children, or
any reason other than the interest of the service. The Department is no longer in a position to finance the school and medical fees of foreign
service personnel or their families. Those ailing are suggested to apply for sick leave, which they may spend abroad or in Manila. Inasmuch as
they are considered on home assignment the day after their scheduled date of recall, their salaries shall be computed a home office rates and
payable in pesos. Those with school children should be able to provide them with housing, school and personal expenses until the academic
year ends, or they could send them back to Manila in time for the opening of the school year in June.

It must be noted that recall orders are served one year in advance to cushion those concerned against harsh transition. Extension of tours are
a drain in the country’s foreign reserve; is unfair to foreign service personnel without family; and destroys the raison d’etre of the
Department’s rotation program.

Please be guided accordingly." cralaw virtua1aw library

As will at once be noted, the Circular deals mainly with the matter of extensions. What the Circular does essentially, is —

1) to advise of the Department’s inability to extend tours duty "for reasons . . . other than the interest of the service," on account of financial
contraints, extensions being "a drain in the country’s foreign reserve, . . . unfair to . . . personnel without family, and (destructive of) the
raison de’etre of the Department’s rotation program;" and
2) to note — when extensions are thus refused — "that recall orders," consistenty with what appears to be theretofore prevailing practice,
"are served one year in advance to cushion those concerned against harsh transition."  chanrobles law library : red

The Circular must of course be construed in relation to the power of the Secretary of Foreign Affairs to promulgate administrative rules and
regulations, and his authority to transfer and reassign personnel for the good of the service in accordance with Section 6 of the Foreign
Service Act, as amended, above cited. In this context, and as framed, the Circular should be considered as primarily laying down a policy
against extensions of foreign assignments, and, corollarily — extensions sought by officers receiving orders of recall or reassignment being
generally proscribed — drawing attention to the normal practice of giving one-year notice in advance of such orders. The Circular cannot be
read as prohibiting recalls or reassignments without advance one-year notice under any and all circumstances and conditions, and even when
no "harsh transition" is entailed by a recall or reassignment, or as absolutely precluding amendment or modification thereof by the Secretary
himself.

No grave abuse of discretion, or lack or excess of authority, may rightfully be ascribed to the respondent Secretary. Indeed, it is the Regional
Trial Court which the facts disclose to have gravely abused its discretion in having so utterly misread the facts and the applicable law and
overruling the Secretary’s plainly valid and legally authorized actuations. The writ prayed for will therefore issue, to nullify the challenged
orders of said Trial Court and — to avert unnecessary proceedings, all the facts necessary to adjudicate the issues raised by the parties
having been laid by them before this Court, and those issues having in fact been dealt with in this opinion — to direct that the action a quo be
aborted.

WHEREFORE, the Orders of respondent Court in Sp. Proc. No. 89-48665 dated June 5, 1989 and July 25, 1989 are hereby NULLIFIED AND
SET ASIDE, and said Court is ORDERED TO DISMISS Sp. Proc. No. 89-48665. Costs against private Respondent. chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

SO ORDERED.