Idea Transcript
REPUBLIC OF THE PHILIPPINES CIVIL SERVICE COMMISSION Constitution Hills, Quezon City
JUAN MIGUEL LUZ,
Appellant, Re: Reassignment/ Transfer (Appeal)
-versusTHE EXECUTIVE SECRETARY EDUARDO ERMITA, Appellee. x--------------------------------------x
MOTION FOR RECONSIDERATION (of CSC Resolution No. 06-0216 dated 1 February 2006) Appellant, Juan Miguel M. Luz, by counsel, respectfully states: TIMELINESS OF THE MOTION FOR RECONSIDERATION 1. 06-0216
This is a motion for reconsideration of Resolution No. (the
“Resolution”)
promulgated
by
this
Honorable
Commission on 1 February 2006, which dismissed Appellant’s Appeal of his reassignment to the Department of Labor and Employment (“DOLE”), for lack of jurisdiction. A certified true copy of this Resolution is hereto attached as Annex “A”. 2.
Through undersigned counsel, Appellant received a
copy of the Resolution on 3 February 2006. Hence, the instant motion is timely filed in accordance with Section 72 of the Uniform Rules on Administrative Cases in the Civil Service, which provides:
1
“Section 72. When and Where to File. – A decision or ruling of a department or agency may be appealed within fifteen (15) days from receipt thereof by the party adversely affected to the Civil Service Regional Office and finally, to the Commission Proper within the same period. A motion for reconsideration may be filed with the same office which rendered the decision or ruling within fifteen (15) days from receipt thereof.” (Emphasis supplied)
STATEMENT OF FACTS AND OF THE CASE Appellant’s qualifications 3.
In 1987, Appellant was appointed Presidential Staff
Director of the Presidential Management Staff (“PMS”) in the Office of the President during the administration of President Corazon C. Aquino, where he stayed until mid-1991. As head of the Regional Operations Group and the Political Affairs Group, he worked on a number of major projects including local government autonomy and the establishment of the Autonomous Region in Muslim Mindanao. 4.
In
January
1991,
Appellant
became
a
Career
Executive Service Officer (“CESO”) upon the general instruction of President Aquino that all presidential appointees secure a CESO eligibility and rank to shield them from the vagaries of political processes and changes in presidential administrations and their particular concerns related to appointments.1
1
See Annex “B” of the Appeal.
2
5.
After four (4) years in government, Appellant returned
to the private sector.
From 1995-97, he was Vice President for
Corporate Affairs at the Far East Bank and Trust Company. From 1998 to February 2002, he served as director of operations of the Asia Pacific Economic Cooperation (“APEC”) Business Advisory Council, the private sector advisory body to the APEC Leaders. Concurrently, he was also an Associate Professor at the Asian Institute of Management from 1997 to 2002. 6.
As part of his community work, Appellant served as
Executive Director of the Philippine National Museum Foundation, a private sector foundation that raised funds for the renovation of the National Museum in time for the country’s Centennial celebrations in 1998.
He also served as trustee of the Heritage
Conservation Society of the Philippines for two terms and is currently a trustee of Museo Pambata ng Pilipinas. 7.
With a Bachelor’s Degree in Liberal Arts from St.
Mary’s College of California,2 a La Salle Christian Brothers institution, and a Master’s Degree in Public Administration from the John F. Kennedy School of Government, Harvard University,3 Appellant has expertise in the fields of community development, government policy, business strategy and administration, and education management. This is the reason why former DepED Secretary Edilberto de Jesus invited him to rejoin government as Undersecretary of Education in late 2002. Appellant accepted the He graduated magna cum laude and garnered two awards for academic excellence – James L. Hagerty Award (School of Liberal Arts) and St. Thomas Aquinas Award (Integral Program). 3 He was an Edward S. Mason Fellow in International Development. 2
3
offer because he wanted to serve his country by contributing to reforms in the DepED, which in the mid-to-late-1990s had the reputation
of
being
one
of
the
most
corrupt
agencies
in
government. 8.
On 12 November 2002, Appellant was appointed
Undersecretary of the DepED. In the same month, he took an oath of office (a copy of which is attached as Annex “B” hereof) pursuant to the said appointment. He then took charge of the Finance and Administration of the DepED. 9.
Appellant reactivated his CESO rank as confirmed by
the Career Executive Service Board.4 10.
After Secretary de Jesus left the DepED in August
2004, the Appellant continued to serve under former Secretary Florencio B. Abad and OIC Secretaries Ramon C. Bacani and Fe A. Hidalgo, successively. Appellant’s contributions to reform the DepED 11.
As DepED Undersecretary, Appellant carried out major
reforms in the areas of finance and management systems. Notable among these were: •
Providing direct funding releases from the National Treasury to fiscally-autonomous high schools and school divisions through the Direct Release System;
4
•
Establishing the DepED Procurement Service;
•
Drafting of a new textbook policy, as well as designing
See Annex “B”of the Appeal.
4
and organizing the National Textbook Delivery Program to ensure the timely delivery of over 50 million quality textbooks to close to 42,000 elementary schools; •
Decentralizing the payroll service of elementary school teachers;
•
Fixing the automatic payroll deduction system;
•
Re-engineering the Department’s Provident Funds5 in order to have a professional system; and
•
Forming
Brigada
Eskwela
(National
Schools
Maintenance Week), a project undertaking minor repairs
of
schools
involving
various
school
stakeholders, the local community, local government units and the private sector.
Brigada Eskwela
significantly minimized problems encountered during school openings. 12.
Since 2002, education reforms, both in terms of
financial management and support to academic programs of schools, have helped establish the image of the Department of Education as one of the five least corrupt national agencies in the Social Weather Stations’ annual Enterprise Survey. This has been cause for great pride in DepED considering that it was formerly one of most corrupt agencies in the survey prior to that period.6
5 The Department Provident Fund has a nationwide portfolio of P1.1 Billion in 16 regions). 6 During the entire PGMA Administration, no procurement, personnel or financial scandal has rocked the Department. The lone scandal attributed to the Department involved a controversial error-laden textbook procured a decade ago but which are still in the schools. The Department recalled the textbook and put in place a tighter textbook evaluation process to prevent such errors from recurring in public school textbooks in the future.
5
13.
In sum, Appellant is a highly-educated, competent,
honest, and dedicated public servant. His knowledge, competence and integrity enabled him to generate significant financial and material support from the private sector for schools under the Department’s Adopt-a-School program. Malacañang’s post-dated checks 14.
On 23 August 2005, the DepED received a letter from
Congressman Antonio Diaz stating that President Arroyo had approved P20 Million from the President’s Social Fund (“PSF”) to be used for the congressman’s scholarship fund in the 2nd District of Zambales. Included in the letter was the first P5 Million, in a handwritten check drawn against an unmarked non-commercial account in the Land Bank branch in Malacañang.7 15.
The DepED’s Chief Accountant, Mrs. Olivia San Pablo,
immediately called the Appellant to ask what to do with the check. Baffled, he requested her to show him the check signed by Deputy Executive Secretary (“DES”) Susana Vargas with the handwritten amount and name of the payee, the Department of Education. The check was dated 21 August 2005, a Sunday. 16.
Incredulous that Malacañang would issue such a
handwritten check, Appellant asked the DepED Chief Accountant, Ms. San Pablo, to call the office of DES Vargas to inquire if this was in fact a genuine check.
A copy of this letter and the proof that this check was deposited to the DepED OSEC Trust Account is attached as Annexes “I” and “I-1” of the Appeal. 7
6
17.
After Ms. San Pablo reported to him that the Office of
the President confirmed the existence of the check, the Appellant called Congressman Diaz’s Chief of Political Affairs staff, Ms. Cora Maestre, to inquire about the purpose of the amount and the manner of the disbursement. 18.
According to Ms. Maestre, the fund was to be
distributed as “scholarship assistance” given to each public high school student in the congressman’s district at a rate of P350 per student, notwithstanding the fact that public education is free and requires no payment of fees. 19.
Appellant was then told that the P5 Million should be
transferred to the Zambales division office which would, in turn, release the money to the congressman’s office, which would then distribute the same to the student beneficiaries directly. To liquidate this amount, each student was to sign a list similar to a teachers payroll when the latter receive their payslips and paychecks from the division. 20.
In a telephone conversation, DES Vargas told the
Appellant that she was not privy to the President’s decisions on the PSF but that the Fund was disbursed solely at the discretion of the President.
Hence, the scholarship project as discussed by the
congressman must have been in accordance with the President’s instructions. 21.
Upon the request of DES Vargas, Appellant agreed to
have the first P5 Million check deposited to the DepED central
7
office trust fund. He, however, instructed Ms. San Pablo, not to transfer any fund to the Division of Zambales until the Department received in writing a clear program of work and the process of disbursement and liquidation from the congressman’s office. 22.
On 2 September 2005, three similar checks of equal
amount (P5.0 Million each) were forwarded to the DepED accounting office from the PMS for deposit and transfer to the same division of Zambales. The dates on these post-dated checks were 3 September 2005, 3 December 2005, and 3 March 2006.8 Appellant noticed that all three were similarly handwritten as the first check in August, though they now bore two signatures - those of DES Susana Vargas and Erlinda Bautista de Leon as head of the PSF. 23.
The DepED accountant reported to the Appellant that
there was no accompanying documentation with the checks. Neither was there a Special Allotment Release Order (SARO),9 nor a Notice of Cash Allocation (NCA)10. Moreover, upon checking with both the Department of Budget and Management (DBM) and the Commission on Audit (COA), she confirmed that the acceptance of post-dated checks are against government rules on accounting and auditing procedures.
8 Certified true copies of these checks are attached as Annexes “I-series” of the Appeal. 9 The SARO is the notice from the DBM to a department that informs the latter that funds are now allotted and can be obligated. In effect, the SARO provides the department with the authority to spend funds. 10 The NCA is the notice from the DBM that the cash has been deposited or transferred to the account of the department and can be drawn against. Only at this point in time can a check be prepared and/or released to the payee.
8
24.
Upon the request of the Appellant in a letter dated 6
September 2005,11 COA Assistant Commissioner Arcadio Cuenco wrote a letter stating that: “Please be informed that the issuance and/or receipt of post-dated checks by government agencies is prohibited under GAO Circular No. 68-110 dated October 10, 1968 pertinent portion of which states: ‘Checks presented for payment must be drawn by the payor himself and made payable to the agency or head of agency… Under no circumstance shall the following checks be accepted: (a) checks drawn payable to the name of the agency head or any of its officers, (b) indorsed checks, (c) postdated checks, (d) stale checks, and (e) out-of-town checks, except those which are drawn by the Government or its instrumentalities.’ ” (Emphasis supplied)12 25. from
On 6 September 2005, the Appellant received a letter
Congressman
Antonio
Diaz
dated
5
September
2005
requesting for the transfer of the two cleared checks (21 August 2005 and 3 September 2005) from the DepED central office trust account to the DepED Division Office of Iba, Zambales.13 26.
Appellant called DES Vargas on 7 September 2005 to
inquire about the post-dated checks she signed, which were personally delivered by the congressman’s staff.
Her reply was
startling. She sounded perplexed by the Appellant’s query and asked what the dates were on the checks. When asked why she did not know the dates on the checks being the signatory, she told
11 A certified copy of the letter of the Appellant to COA is attached as Annex “J” of the Appeal. 12 A certified copy of the letter of the Commission on Audit to the Appellant is attached as Annex “K” of the Appeal. 13 A certified true copy of this letter is attached as Annex “L” of the Appeal.
9
the Appellant that she usually pre-signed blank checks for the PSF but would give these directly to the President. She said she was not privy thereafter to the details of the checks, nor to the projects for which they were intended.
Furthermore, she could not
understand nor explain why two of the checks would be postdated. 27.
On the same day the DepED Chief Accountant called
the Appellant with another urgent matter. The PMS called her and Mr. Mandy Ruiz, the Department’s Chief Budget Officer, to inquire if another PSF check could be deposited directly to the division of Zamboanga del Sur for the projects of Congressman Isidro Real, thus by-passing the central office in an effort to cut down on the overall “processing time” for the check. 28.
On 8 September 2005, Ms. Maestre of Congressman
Diaz’s office came to inquire if DepEd already deposited the first two (2) checks and if these could already be transferred to the division office. 29.
The Appellant, not wanting to veer away from the
proper accounting and auditing procedures, decided to return the four (4) checks to the PSF, including the first one (21 August 2005) already deposited into the DepED central office trust account. For this purpose, he called the Department’s Chief Accountant, Chief Budget Officer and Cashier to his office. The official receipt for the second check (3 September 2005) was cancelled since this official receipt had not yet been given to the Office of the President/PMS
10
and the check had yet to be deposited into the department’s trust account. 30.
Also on 8 September 2005, Ms. Yvonne Chua of the
Philippine Center for Investigative Journalism (“PCIJ”), having heard of the post-dated checks from her “Malacañang source,” came to see the Appellant to confirm if there were in fact such checks received by DepED. 31.
Early on 9 September 2005, Friday, a staff of PMS was
in Appellant’s office waiting to pick up the three checks. Appellant called Director Marietta Tamondong of the PMS and informed her that the amount in the first check (which had already been deposited) would likewise be returned to PSF but through a DepED check.14 32.
That same day, Appellant informed OIC-Secretary Fe
Hidalgo of these developments. The latter concurred with his decision. 33.
Deciding to return all of the checks that constituted
the P20 Million grant given to Congressman Diaz by the President through the PSF, Appellant, on 10 September 2005, cancelled the Disbursement Voucher for the first P5.0 M and instructed Ms. San Pablo to return the amount to the PSF using a DepED check.15
A certified copy of the letter documenting the return of the checks is attached as Annex “M” of the Appeal. 15 A certified copy of the cancelled voucher with the Appellant’s marginal note (written instructions) is attached as Annex “N” of the Appeal. 14
11
34.
On 11 September 2005, a Sunday, PCIJ’s Ms. Chua
posted the story on the PCIJ weblog site which became a source of news for other media organizations. 35.
On 12 September 2005, Appellant left for the United
States for a conference in New York City. That same day, the PCIJ blog appeared in the Philippine Star. 36.
While Appellant was in the United States, OIC-
Secretary Fe Hidalgo received a letter, dated 13 September 2005, from Congressman Antonio Diaz requesting for the release of the first P5.0 M (date 21 August 2005).16 This was eventually released upon the instructions of OIC-Secretary Hidalgo.
After the release
of this amount, the DepED received a Deed of Donation for the same P5.0 Million signed by Cabinet Secretary Ricardo Saludo and Undersecretary Ramon Bacani of the DepED, and notarized on 15 September 2005.17 Appellant’s termination 37.
Appellant’s worries started on 13 September 2005,
when his office received a letter from the Executive Secretary that read: “We wish to thank you for your services as Undersecretary, Department of Education, effective immediately”.18
16 A certified true copy of Cong. Diaz’ letter is attached as Annex “O” of the Appeal. 17 A certified copy of this Deed of Donation is attached as Annex “P” of the Appeal. 18 Annex “C” of the Appeal.
12
38.
As Appellant was then out of the country, the OIC-
Secretary called him on 16 September 2005, while he was still in New York, to relay the news.
39.
Stunned by what was apparently a termination letter,
on 20 September 2005, Appellant sent a query to the Civil Service Commission asking whether or not he was terminated and if any such termination was proper.19 40.
On
21
September
2005
Chairperson
Karina
Constantino-David of this Honorable Commission wrote Appellant a letter20 stating that: “For an undersecretary position, the qualifications are: Bachelor’s degree, three (3) years supervisory experience and Career Service Executive Eligibility (CSEE) or Career Executive Eligibility (CESE). Considering that you have met all the said requirements, the status of your appointment is permanent. As such, you have security of tenure to the said position. As a permanent official, you cannot be removed from your position by virtue of a mere letter. You may only be removed for cause as provided for by law, and after due process. Considering that the termination letter did not mention any cause or reason for your termination, it is obvious that the Office of the President was working under the mistaken assumption that your appointment was not permanent and thus, you may be separated from the service anytime or at a moment’s notice.” 41.
On the same date, also in response to Appellant’s
query, Career Executive Service Board (“CESB”) Executive Director Mary Ann Fernandez-Mendoza replied that since Appellant did not
19 20
Annex “D” of the Appeal. Annex “E” of the Appeal.
13
resign from his position, the letter from the Office of the President could not be taken to mean termination from the service, and that Appellant
may
continue
performing
his
functions
as
Undersecretary of DepED.21 42.
Appellant immediately prepared a letter informing the
Office of the President that he was going to continue to perform his duties and functions as Undersecretary of DepED with no disrespect
intended,
and
that
his
concerns
were
focused
principally on continuing and expanding education reforms.22 43.
Two days later, on 23 September 2005, Malacañang
announced to the media that Appellant had been “terminated as undersecretary (of education) but not as a CESO.” This was later modified as to be “a reassignment to some other government position of same rank.” Again, the announcement was modified by the Press Secretary, who stated that Appellant had resigned as Undersecretary. 44.
On the evening of 26 September 2005, the Press
Secretary was heard on radio stating that Appellant was being allowed to stay as Undersecretary of Education.23 45.
On
4
October
2005,
Appellant
received
a
Memorandum24 of even date from Appellee, which reads: “In the exigency of service, you are hereby reassigned from the Department of Education (DepED) A copy of this letter is attached as Annex “F” of the Appeal. A copy of this letter is attached as Annex “G” of the Appeal. 23 Copies of the newspaper clippings are attached as Annexes “H”, “H-1”, and “H-2” of the Appeal. 24 Annex “A” of the Appeal. 21 22
14
to the Department of Labor and Employment (DOLE) to a position at least commensurate to your Career Executive Service (CES) rank.” The Memorandum reassigned him to the DOLE, without specifying a position or a definite period. 46.
On the same day, Appellant received a letter, dated 23
September 2005, from DOLE Secretary Patricia Santo Tomas,25 stating that since the Appellant was being moved from the DepED, she was requesting that he be reassigned to her department. 47.
On 14 October 2005, Appellant filed with this
Honorable Commission an Appeal contesting his reassignment to the DOLE. 48. any
On 18 November 2005, Appellant, not having received
Comment
from
Appellee,
submitted
to
this
Honorable
Commission a letter requesting for a decision of the Appeal based on the pleadings and evidence filed, and requesting that the date of hearing, if necessary, be set as soon as possible. 49.
Appellee thereafter filed his Comment dated 25
November 2005. 50.
On 12 December 2005, Appellant filed with this
Honorable Commission a Manifestation with Motion to Set Case for Hearing and File Reply.
25
A certified true copy of this letter is attached as Annex “Q” of the Appeal.
15
51.
Without awaiting action on the said Motion, Appellant,
on 19 December 2005, filed his Reply to Appellee’s Comment. 52.
On 3 February 2006, Appellant received a copy of this
Honorable Commission’s Resolution No. 06-0216. The dispositive portion of the said Resolution, reflecting the Majority Opinion, i.e. the opinions of Honorable Commissioners J. Waldemar V. Valmores and Cesar D. Buenaflor (the “Majority”) states: “WHEREFORE, the appeal of Undersecretary Juan Miguel M. Luz is hereby DISMISSED for lack of jurisdiction.” Hence, the instant Motion for Reconsideration where Appellant respectfully submits that the Resolution dismissing his Appeal of the Order dated 4 October 2005 (the “Order”), signed by Appellee, Executive Secretary Eduardo Ermita, is not supported by evidence on record and contains errors of law or irregularities prejudicial to Appellant’s interest.26 Appellant concurs with Dissenting Opinion of no less than the Chairperson of this Honorable Commission, holding that: “a. The Commission has jurisdiction over the appeal of Luz. b. Luz has security of tenure in the Career Executive Service. c. Luz’s reassignment to the DOLE was tainted with bad faith and was not done in the interest of public service.”27
These are among the grounds for a motion for reconsideration stated under Section 40 of the Uniform Rules on Administrative Cases in the Civil Service. 27 Dissenting Opinion, p. 19. 26
16
GROUNDS I. THE HONORABLE COMMISSION ERRED IN HOLDING THAT IT HAS NO JURISDICTION OVER APPELLANT’S APPEAL. II. THE HONORABLE COMMISSION ERRED IN RULING THAT APPELLANT DOES NOT HAVE SECURITY OF TENURE. III. THE HONORABLE COMMISSION ERRED IN RULING THAT APPELLANT’S TRANSFER WAS LEGAL. DISCUSSION I. THE HONORABLE COMMISSION ERRED IN HOLDING THAT IT HAS NO JURISDICTION TO TAKE COGNIZANCE OF APPELLANT’S APPEAL. 53. concluded
In the Resolution, the Majority swiftly and erroneously that
this
Honorable
“Commission
cannot
take
cognizance of the case because it has no jurisdiction over the Appeal of Undersecretary Luz”. The Majority initially opined that presidential appointees of CESO rank should question their reassignment
before
the
Office
of
the
President,
following
Paragraph 5(e), Article IV, Chapter I, Part III of Presidential Decree No. 1 or the Integrated Reorganization Plan.28
28
This section states: “Any provision of law to the contrary notwithstanding, members of the Career Executive Service may be reassigned or transferred from one position to another and from one
17
54.
However, recognizing that the Order subject of the
appeal was issued “by authority of the President”, the Majority dispensed with the need to go to the Office of the President, but immediately jumped to a higher level, that is the Court of Appeals. The Majority invoked Rule 43 of the Rules of Civil Procedure which explicitly enumerates the Office of the President as among the agencies whose decisions may be reviewed by the Court of Appeals. They justified resort to the Court of Appeals by saying that nothing in the Administrative Code of 1987 (Executive Order No. 292) categorically vests this Honorable Commission with jurisdiction to review actions of the Office of the President. A.
Rule 43 of the Rules of Civil Procedure is not applicable to Appellant’s case, as said rule applies only to awards, judgments, final orders or resolutions issued in the exercise of quasi-judicial functions. -----------------------------------------------------55.
It is conceded that review by the Office of the President
is inapplicable to the case at bar. As the Honorable Chairperson of this Commission correctly pointed out in her Dissenting Opinion, “since the reassignment ordained by the Executive Secretary was presumptively the act of the President in line with the doctrine of qualified political agency, then the same could not be appealed to
department, bureau or office to another; provided that such reassignment or transfer is made in the interest of public service and involves no reduction in rank or salary; provided further, that no member shall be reassigned or transferred oftener than every two years; and provided, furthermore, that if the officer concerned believes that his reassignment or transfer is not justified, he may appeal his case to the President.” (Emphasis supplied)
18
the President, without miscarriage of administrative justice.”29 It is a settled rule in administrative law that the person who promulgated the decision cannot be the same person who will review such decision on appeal.30 56.
The Majority’s resort to the Court of Appeals, is
however, a patent flaw which even law students can easily detect. It is clear from the provisions of Section 1, Rule 43 that the said Rule applies only to “appeals from judgments or final orders of the Court of Tax Appeals and from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of its quasi-judicial functions”. That the provision mentions the Office of the President does not automatically mean that review of all actions of such office fall within the exclusive jurisdiction of the Court of Appeals. What is controlling for the application of Rule 43 is that the decision must have been rendered in the exercise of quasi-judicial functions. 57.
Quasi-judicial functions involve the “determination of
rights, privileges and duties resulting in a decision or order which applies to a specific situation.”31 As the Supreme Court aptly explained in Commissioner of Internal Revenue vs. Court of Appeals32 (also cited in the Dissenting Opinion, p. 4): “Quasi-judicial or administrative adjudicatory power on the other hand is the power of the administrative agency to adjudicate the rights of Dissenting Opinion, pp. 2-3. GSIS vs. Court of Appeals, G.R. No. 128523 September 28, 1998 citing Zambales Chromite Mining Company vs. Court of Appeals, G.R. No. L-49711, November 7, 1979 and Anzaldo vs. Clave, 19 SCRA 353 (1982). 31 Lupangco vs. Court of Appeals, G.R. No. L-77372, April 29, 1988. 32 G.R. No. 119761, August 29, 1996. 29 30
19
persons before it. It is the power to hear and determine questions of fact to which the legislative policy is to apply and to decide in accordance with the standards laid down by the law itself in enforcing and administering the same law. The administrative body exercises its quasi-judicial power when it performs in a judicial manner an act which is essentially of an executive or administrative nature, where the power to act in such manner is incidental to or reasonably necessary for the performance of the executive or administrative duty entrusted to it. In carrying out their quasi-judicial functions the administrative officers or bodies are required to investigate facts or ascertain the existence of facts, hold hearings, weigh evidence, and draw conclusions from them as basis for their official action and exercise of discretion in a judicial nature. Since rights of specific persons are affected it is elementary that in the proper exercise of quasi-judicial power due process must be observed in the conduct of the proceedings. (Emphasis supplied)” 58.
It is evident that the Order reassigning Appellant was
not issued after a consideration and as a disposition of conflicting claims. Appellee, in fact, describes the reassignment as a “management prerogative”33, effectively admitting that it was an administrative, and not a quasi-judicial, act. B.
This Honorable Commission is mandated by law to take cognizance of the instant case. --------------------------------------------------------59.
This Honorable Commission cannot abdicate itself
from the responsibility of acting on Appellant’s appeal.
No less
than the Constitution mandates this Honorable Commission, as the “central personnel agency of the government,”34 to “decide by a Majority vote of all its Members any case or matter brought before
33 34
Appellee’s Comment, p. 3. 1987 Constitution, Article IX (B), Section 3.
20
it within sixty days from the date of its submission for decision or resolution.”35 60.
Moreover, Section 26 of the Administrative Code of
1987 (Executive Order No. 292) specifically vests this Honorable Commission with jurisdiction over personnel actions, which includes transfer and reassignment, in accordance with the rules promulgated by the Commission.36 Accordingly, Section 71 of the Uniform Rules on Administrative Cases in the Civil Service, pertaining
to
other
personnel
and
non-disciplinary
actions,
provides: “Section 71. Complaint or Appeal the Commission. – Other personnel actions, such as, but not limited to separation from service due to unsatisfactory conduct or want of capacity during probationary period, dropping from the rolls due to Absence Without Official Leave (AWOL), physically and mentally unfit, and unsatisfactory or poor performance, action on appointments (disapproval, invalidation, recall, and revocation), reassignment, transfer, detail, secondment, demotion, or termination of services, may be brought to the Commission, by way of an appeal.” (Emphasis supplied) 61.
Indeed, this Honorable Commission’s authority to take
cognizance of Appellant’s appeal of his reassignment is undeniable. As the Chairperson interestingly notes her Dissenting Opinion,
1987 Constitution, Article IX (A), Section 7. Book V, Title I(A), Chapter V, Section 26 of the Administrative Code of 1987 provides: 35 36
“Section 26. Personnel Actions. x x x As used in this Title, any action denoting the movement or progress of personnel in the civil service shall be known as personnel action. Such action shall include appointment through certification, promotion, transfer, reinstatement, re-employment, detail, reassignment, demotion, and separation. All personnel action shall be in accordance with such rules, standards and regulations as maybe promulgated by the Commission.”
21
Appellant’s appeal is not novel to this Honorable Commission. In fact, in CSC Resolution No. 03-066937 (penned by the same ponente of the subject Resolution, Honorable Commissioner Valmores), this Honorable Commission, without question, gave due course to Ms. Virginia L. Trinidad’s appeal of her reassignment to an inexistent position in the Commission on Internal Revenue. Appellant now wonders why this case elicited a different treatment from the Honorable Commissioner. II. THE HONORABLE COMMISSION ERRED IN RULING THAT APPELLANT DOES NOT HAVE SECURITY OF TENURE. 62.
Notwithstanding its position that this Honorable
Commission lacks of jurisdiction over Appellant’s appeal, the Majority discussed the merits of the case but incorrectly ruled that Appellant does not enjoy security of tenure as DepED Secretary. A.
Appellant’s appointment as DepED Undersecretary is not coterminous. --------------------------------------------------------63.
The Majority denied Appellant’s right to security of
tenure by arguing that Appellant’s appointment as DepED Undersecretary was coterminous; hence, Appellant serves only at the pleasure of the President as appointing authority. In support thereof, the Majority relied on the 11 November 2002 and 23 September 2004 appointments38 issued to Appellant. Both of these appointments, 37 38
expressly
qualifying
the
appointment
as
Promulgated on 10 June 2003. Annexes “1” and “2”, respectively, of Appellee’s Comment.
22
“coterminous with the appointing authority”, are attached to Appellee’s Comment. 64.
As
the
Honorable
Chairperson
rightfully
noted,
Appellant was not personally furnished with a copy the 23 September 2004 appointment, the latest appointment on which the Majority based its conclusions. Truth is, Appellant was apprised thereof only through the copy39 attached in Appellee’s Comment. Being unaware of the 23 September 2004 appointment, Appellant did not take an oath pursuant thereto. The Majority confirmed such lack of oath of office in its opinion stating: “x x x There is no showing from the records, however, that Undersecretary Luz took an oath of office on the basis of this September 23, 2004 appointment. x x x”40 65.
The absence of the oath of office, not to mention the
dubious issuance of the 23 September 2004 appointment, renders the Majority’s contention that Appellant’s appointment was merely coterminous untenable. 66.
Without the oath, Appellant cannot be considered to
have accepted the 23 September 2004 “coterminous” appointment, if indeed such was officially issued. Book I, Chapter 10, Section 40 of the Administrative Code of 1987 expressly requires all public officers to take an oath of office, to wit: “Sec. 40. Oaths of Office for Public Officers and Employees. – All public officers and employees of the government including every member of the armed forces shall, before entering upon the discharge of his duties, take an oath or affirmation to defend the 39 40
Annex “2” of Appellee’s Comment. Majority Opinion, p. 5.
23
Constitution; that he will bear true faith and allegiance to it; obey the laws, legal orders and decrees promulgated by duly constituted authorities; will well and faithfully discharge to the best of his ability the duties of the office or position upon which he is about to enter, and that he voluntarily assumes the obligation imposed by his oath of office, without mental reservation or purpose of evasion. Copies of the oath shall be deposited with the Civil Service Commission and the National Archives.” (Emphasis supplied) 67.
The
Supreme
Court’s
holding
in
Lecaroz
vs.
Sandiganbayan41 (appropriately cited in the Dissenting Opinion, p. 19) bolsters the need for an oath of office, thus: “To be sure, an oath of office is a qualifying requirement for a public office; a prerequisite to the full investiture with the office. Only when the public officer has satisfied the prerequisite of oath that his right to enter into the position becomes plenary and complete. Until then, he has none at all.” 68.
Considering the foregoing, what then is the basis of
Appellant’s appointment? The answer is not the 11 November 2003 “coterminous” appointment, but another appointment issued to Appellant only a day thereafter. 69.
Intriguingly, Appellee attached to his Comment copies
of the two (2) coterminous appointments (dated 11 November 2002 and 23 September 2004), but failed to include a copy of the 12 November 2002 appointment. 70.
The existence of the 12 November 2002 appointment is
undisputed. The Career Service Executive Board (“CESB”), in its Resolution No. 545 dated 10 August 2004,42 confirmed that: 41 42
G.R. No. 130872, March 25, 1999. Annex “B” of the Appeal.
24
“…Mr. Luz left government service in 1992 and was appointed to his present position on November 12, 2002.” 71.
Even the Majority acknowledged the existence of the
12 November 2002 appointment in its narration of facts.43 However, it seems to have neglected, if not deliberately ignored, the import of such appointment in the case at bar. 72.
Notably, the appointment issued to Appellant on 12
November 2002 was not qualified as coterminous, viz: “Pursuant to the provisions of existing laws, you are hereby appointed UNDERSECRETARY, DEPARTMENT OF EDUCATION, vice Ernesto de los Santos Pangan. By virtue hereof, you may qualify and enter upon the performance of the duties of the Office, furnishing this Office and the Civil Service Commission with copies of your oath of office.” 73.
Importantly,
Appellant
took
his
oath
of
office44
pursuant to the 12 November 2002 appointment. 74.
Following the oath requirement in the Administrative
Code as well as the holding in Lecaroz, Appellant holds office as DepED
Undersecretary
based
on
the
12
November
2002
appointment, which is not coterminous. Clearly, Appellant cannot be dismissed from office at the pleasure or whim of the President. He has security of tenure.
43 44
Majority Opinion, p. 4. Annex “B” hereof.
25
B.
Appellant is fully qualified for the position of Undersecretary. ---------------------------------------------------75.
The
Majority
further
posited
that
Appellant’s
appointment is not permanent, and therefore, he does not have security of tenure. They based their contention on Section 27 (1), Chapter 5, Book 5 of the Administrative Code of 1987, which defines a permanent appointment in the career service as follows: “(1) Permanent status. A permanent appointment shall be issued to a person who meet (sic) all the requirements for the positions (sic) to which he is being appointed, including the appropriate eligibility prescribed, in accordance with the provisions of law, rules and standards promulgated in pursuance thereof.” (Emphasis supplied) 76. 1997)
of
Under the Qualification Standards Manual (Revised this
Honorable
Commission,
a
Department
Undersecretary must meet the following requirements: (a)
Bachelor’s degree;
(b)
Three (3) years supervisory experience; and
(c)
Career Executive Service Eligibility (“CESE”).
77.
Appellant meets all of the aforesaid requirements. He
has a Bachelor’s degree in Liberal Arts from St. Mary’s College in California and even has a Master’s Degree in Public Administration from the John F. Kennedy School of Government, Harvard University. He has more than three (3) years of supervisory experience
both
in
the
government
and
private
sector.45
Importantly, Appellant is CES Eligible as confirmed by the CESB in
45
See paragraphs 2-6 of the Appeal.
26
its Resolution No. 54546 and in the 21 September 2005 letter-reply of its Executive Director Mary Ann Z. Fernandez-Mendoza47. 78. sterling
Apparently, the Majority did not consider Appellant’s qualifications
as
sufficient
compliance
with
the
requirements under the Qualification Standards Manual. This is because the Majority improperly construed and expanded the last requirement of CES eligibility to mean that Appellant must specifically be a CESO Rank I. The Majority reasoned that since Appellant only possesses CESO Rank III, he fails to satisfy the minimum qualifications for an Undersecretary. Accordingly, the Majority held that Appellant’s appointment is merely temporary. 79.
The Majority’s interpretation of the CES eligibility
requirement, adding qualifications beyond those expressly stated in the Qualifications Standards Manual, defies elementary rules of statutory construction. Expressum facit cessare tacitum.48 What is expressed puts to an end that which is implied. In other words, where a law, by its terms, is expressly limited to certain matters, it may not, by interpretation or construction, be extended to other matters.49 Hence, the Majority cannot impose qualifications other
Annex “B” of the Appeal. In Resolution No. 545, the CESB restored the CESO Rank III of Appellant. 47 Annex “F” of the Appeal. In the 21 September 2005 letter-response of the CESB to Appellant, the CESB Executive Director confirmed that Appellant is “a CES eligible occupying a career position in the Dep Ed’s plantilla with item no. OSEC-DECSB-DEUSEC-4-1998”. 48 This is a variation of the maxim expresio unius est exclusio alterius or the express mention of one person, thing, or consequence implies the exclusion of all others (Agpalo, infra). 49 Hong Kong & Shanghai Bank vs. Peters, 16 Phil. 824 (1910); Collanta vs. Carnation Phil., Inc., 145 SCRA 268 (1986), cited in Agpalo, Ruben E., Statutory Construction, 4th ed., 1998, at 221. 46
27
than those expressly stated in the Qualifications Standards Manual.
C.
Jurisprudence cited by the Majority are not applicable to Appellant’s case. ----------------------------------------------------80.
To bolster their claim that Appellant is not qualified for
the position of Undersecretary because he only has CESO Rank III, the Majority quoted the rulings in Dimayuga vs. Benedicto, et al.,50 Achacoso vs. Macaraig,51 General vs. Roco,52 and Cuevas vs. Bacal53. In these cases, the Supreme Court held that for an appointment
to
be
permanent
(and,
consequently,
for
the
appointee protected with security of tenure), the appointee must possess the rank appropriate to the position. Further, the Majority relied on these cases in contending that “security of tenure in the career executive service pertains only to rank and not to the office or the position to which they maybe appointed…,”54 thereby, affirming the Appellee’s argument that Appellant’s permanent status or security of tenure pertains only to the CES, but not to the specific position of Undersecretary. For the Majority, the President may
freely
move
Appellant
to
any
other
position
in
the
bureaucracy, provided there is no diminution in the rank he holds.
50 51 52 53 54
373 SCRA 652. G.R. No. 93023, March 13, 1991. G.R. No. 143366, January 29, 2001. G.R. No. 139382, December 6, 2000. Majority Opinion, p. 9.
28
81.
The Majority’s reliance on the aforesaid cases is
misplaced.55 As the Honorable Chairperson of this Commission succinctly explained: “While the Supreme Court decisions on the Bacal and Roco cases may have been applicable years ago, these are no longer controlling today. At that time, the rule was that for a CESO to have security of tenure, his/her CESO rank must correspond to the position he/she is holding, that is, he/she must have the appropriate rank. Corollary to this, it was also the rule that a promotion in position merits a corresponding adjustment in rank. Neither was the rank promotion ladderized. Thus, by merely adjusting the rank, as CESO VI can become CESO I if he/she is appointed to an Undersecretary position. Such a system played havoc with the principle of merit and fitness and careerism in the third level of the bureaucracy. Cognizant of the deleterious effects the two decisions had on the security of tenure of career officials, such that every time they get promoted in (sic) position there will necessarily be a time wherein he/she would be insecure because his/her rank is no longer appropriate to the new position and has yet to be adjusted to the appropriate rank, the CES Board, as early as 2002, via Resolution No. 453 (Revised Policy on Original and Promotional Appointment to Career Executive Service Ranks) has already changed the rules. The correspondence or equivalence between rank and position no longer exists. CESOs are now required to start at rank VI regardless of the position they are holding. Also, promotion in the position does not mean that the CESO will get a corresponding promotion in rank. The CESB has set the requirements that a CESO must meet before he/she can be promoted in rank.”56 82.
The CESB clarified this shift from the rule prevailing
during the time of Bacal and Roco to its new policy in Resolution No. 548 s. 200457 as follows: “x x x
55 56 57
xxx
xxx
See also Appellant’s Reply to Comment, paragraphs 4-7. Dissenting Opinion, p. 12. Revised Policy on Security of Tenure.
29
WHEREAS, in the case of Secretary of Justice vs. Serafin Cuevas vs. Bacal (G.R. No. 139382 dated December 6, 2000), the Supreme Court ruled that security of tenure in the career executive service is thus acquire with respect to rank and not to position and that the guarantee of security of tenure to the members of the CES does not extend to the particular positions to which they maybe appointed – a concept which is applicable only to first and second-level employees in the civil service – but to the rank to which they are appointed by the President; WHEREAS, in the case of Luis Mario M. General vs. Ramon S. Roco (G.R. No. 143366 dated January 29, 2001), the Supreme Court ruled that two requisites must concur in order that an employee in the career executive service may attain security of tenure, to wit: a) CES Eligibility; b) Appointment to the appropriate CES rank; WHEREAS, the above-stated rulings of the Supreme Court were based primarily on the policies, rules and regulations then of the CESB, which were quoted by the said court in the afore-cited cases; WHEREAS, the above said policy set by the Board upon which the “appropriate rank” ruling of the Supreme Court in the case of Roco vs. General was based has already been revised by the Board through CESB Resolution No. 455 s. 2002 which states, that a CESO is considered a permanent employee and, therefore, guaranteed security of tenure in the CES regardless of the CES position he/she occupies or the rank/level to which he/she is appointed; xxx
xxx
xxx
NOW THEREFORE, foregoing premises considered, the Board RESOLVES as is hereby RESOLVED to revise the policy on security of tenure in the Career Executive Service (CES) in conformity with the pertinent policies of the Civil Service Commission (CSC) for third level qualified incumbents. Henceforth, attainment of CES Eligibility by an incumbent of a CES position is enough to enjoy security of tenure in the CES provided he or she has met the other basic requirements of the position established in the qualification standards set or approved by the Civil Service Commission based on the recommendation of the Department or Agency concerned;
30
xxx supplied) 83.
xxx
x
x
x”
(Emphasis
Based on the foregoing, Appellant, being CES Eligible
as certified by the CESB,58 is a permanent employee entitled to security of tenure. The Majority’s contention that Appellant is holding a position not equivalent to his CES rank is, therefore, of no moment. Indeed, as the Honorable Chairperson correctly pointed out, to apply the Bacal and Roco rulings to the case at hand “would only result in injustice. Had the rules not been changed, Luz could have had his rank adjusted to CESO I by virtue of his appointment as Undersecretary.”59 This Honorable Commission should not allow itself to become a vehicle of such injustice. III. THE HONORABLE COMMISSION ERRED IN RULING THAT APPELLANT’S TRANSFER WAS LEGAL. A.
Appellant’s reassignment does not comply with the requirements for the application of the mobility principle. ---------------------------------------------------Appellant’s reassignment service.
84.
was not made in the interest of public
The Majority sanctioned Appellant’s reassignment
under the mobility principle.60 However, as extensively discussed in the Appeal, the application of the mobility principle is subject to
58 59 60
See Annexes “B”, “E” and “F” of Appeal. Dissenting Opinion, p. 12. Majority Opinion, p. 9.
31
certain requirements laid down in CESB Resolution No. 548 s. 2004, thus: “RESOLVED FURTHER, that notwithstanding the permanent status of appointment of a third level official, he/she is covered by the mobility principle enshrined under Article IV, Part III of the Integrated Reorganizational Plan, as approved by Presidential Decree No. 1, as amended, dated September 24, 1972, quoted herein as follows: ‘e. Assignments, Transfers xxx
Reassignments xxx
and
xxx
Any provision of law to the contrary notwithstanding, members of the Career Executive Service may be reassigned or transferred from one position to another; provided that such reassignment or transfer is made in the interest of public service and involves no reduction in rank or salary; provided, further, that no member shall be reassigned or transferred oftener than every two years.’ RESOLVED FURTHERMORE, to ensure compliance to (sic) the above-quoted mobility principle, reassignment or transfer shall be effected only upon the availability of the corresponding position, it being understood that a “floating status” is not within the contemplation of this principle. Assignment to a CESO pool shall not be considered as a floating status.” (Emphasis supplied) 85.
Simply put, a transfer or reassignment of a CESO
under the mobility principle must comply with the following requisites: a.
It must be made in the interest of public service;
b.
It must involve no reduction in rank or salary;
c.
It must not be made within two years from the employee’s last transfer or reassignment; and
32
d.
It must be effected only upon the availability of a corresponding position.
86.
The
Majority
considered
the
public
interest
requirement satisfied by the letter of Department of Labor and Employment (“DOLE”) Secretary Patricia Sto. Tomas (dated 23 September 2005),61 requesting that Appellant be transferred to the DepED. Notably, such letter came after Appellee’s 13 September 2005 letter62 thanking Appellant for his services as Undersecretary (or after the “euphemistically-packaged” termination letter as aptly termed by the Honorable Chairperson in her Dissenting Opinion63), and Malacañang’s press releases about Appellant’s termination. Obviously, Secretary Sto. Tomas’ request is nothing but a mere afterthought issued to subterfuge the initial scheme to remove Appellant. 87.
Furthermore, as the Honorable Chairperson correctly
held, Appellant’s exemplary service and expertise will better serve the DepED which has a substantially bigger budget and number of personnel than DOLE. In addition, DepED, unlike DOLE, does not have full management complement. DepED operates without a head and with only two (2) undersecretaries (one of whom acts as department Secretary), in case Appellant is reassigned.64 88.
Appellant
agrees
with
the
Majority
that
the
determination of whether a reassignment is made in the interest of
61 62 63 64
Annex “Q” of the Appeal. Annex “C” of the Appeal. Dissenting Opinion, p. 16. Dissenting Opinion, pp. 18-19;
33
public service is within the sound discretion of the President. But Appellant also agrees with the lone dissenter that the appointing authority’s prerogative in such case is not absolute. It is subject to limitations
such
as
the
requirements
laid
down
in
CESB
Resolution No. 548, and must always be exercised in good faith. 89.
The
principle
enunciated
by
this
Honorable
Commission’ in the appeal of Trinidad, Virginia L. Re Appeal, Reassignment65 (also penned by the Honorable Commissioner Valmores) is instructive: “While it is true that reassignment is a management prerogative which the Commission does not normally interfere with, the same is true only, as held in CSC Resolution No. 96-3651, absent the showing of grave abuse of discretion. In other words, grave abuse of discretion must be clearly shown in order that the Commission may take up the cudgels for the employee reassigned (MONTIEL, Rolando, CSC Resolution No. 94-1006, February 17, 1994. The authority under the law is not intended as a convenient weapon for the appointing authority to harass or oppress a subordinate on the pretext of advancing and promoting public interest (INHAYES, Oscar J., CSC Resolution No. 98-16-08, June 24, 1998).” (Emphasis supplied) 90.
Neither can the Majority invoke the presumption of
regularity in effecting Appellant’s reassignment. As will be explained in the following paragraphs, such presumption is rebutted by evident bad faith and political motives behind the reassignment.
65
CSC Resolution No. 030669, June 10, 2003.
34
Appellant’s reassignment effectively results in a floating status, if not a reduction in rank or salary. 91.
The 4 October 2005 Order, 66 reassigning Appellant to
the DOLE, does not specify the position to which Appellant will be transferred. Without such a position, the apparent intent of Malacañang is to “float” the Appellant as a punishment, in clear violation of CESB Resolution No. 548. Because the purpose of the transfer order was to put Appellant on “floating” status, the Appellant is deemed to be have been constructively dismissed. This especially so since the Appellant would then find his situation in the DOLE intolerable and humiliating such that he would have to eventually resign from the government service. 92.
Presently,
there
is
no
vacant
or
available
Undersecretary position in the DOLE. Thus, even if Appellant is placed under a new designation, his office will definitely be a lower position, resulting in a diminution of his rank and salary. 93.
The
Majority
admits
that
the
“reassignment
of
Undersecretary Luz may not perfectly conform to the provisions of the said CESB Resolution (CESB Resolution No. 548).”67 They, however, contend that non-compliance therewith is immaterial in light of the rulings of the Supreme Court in the cases of Dimayuga, Roco and Bacal. According the Majority as between the CESB Resolution which is merely an administrative rule and the cited jurisprudence, the latter prevails.
66 67
Annex “A” of the Appeal. Majority Opinion, p.10.
35
94.
The Majority’s contention does not hold water. First, as
explained above, the cases cited by the Majority precisely are inapplicable to Appellant’s case, because of the change in the CESB policy. The Supreme Court in crafting jurisprudence, decides cases in accordance with the prevailing and applicable law, including administrative rules and regulations. 95.
Secondly,
as
the
Honorable
Chairperson
of
the
Commission correctly explained in her Dissenting Opinion, the CESB as an administrative agency has full authority to promulgate and, accordingly, change and construe its rules and regulations.68 B.
Appellant’s reassignment is politically motivated and tainted with bad faith. ---------------------------------------------------96.
The
Majority
sweepingly
set
aside
Appellant’s
allegation of bad faith. Amidst the screaming backdrop of political manipulation, the Majority denied the presence of any political motive.69 97.
A careful examination of the events that transpired
prior to Appellant’s transfer, however, shows that Appellee’s act was tainted with bad faith and motivated by purely political reasons. Quite clearly, the Appellant was removed because he was an obstacle to the wishes of the President that she distributes the Presidential Social Fund with no restrictions, and even when funds
Collector of Internal Revenue vs. Ledesma, G.R. No. L-17509, January 30, 1970). 69 Majority Opinion, p. 9. 68
36
are not available, hence the post-dated checks.
The Palace
demands blind obedience, and this the Appellant could not give. 98.
Appellant and the Majority downplay Malacañang’s
financial maneuverings, which Appellant rightfully refused. Both Appellant and the Majority conveniently omitted this from their narration of facts and deliberately failed to address the issue of the post-dated checks. The various documents (the post-dated checks, disbursement vouchers, etc.)70 evidencing Malacañang’s attempt to carry out an illegal disbursement of public funds, however, belie the Appellant and the Majority’s denial by silence. 99.
Moreover, as the pointed out in the Dissenting
Opinion, Appelee’s bad faith is apparent from the deliberate omission of Appellant’s 12 November 2002 appointment in Appellee’s Comment. Said appointment, unlike the two (2) others dated 11 November 2002 and 23 September 2004, do not qualify Appellant’s appointment as coterminous. Furthermore, the 12 November 2002 appointment is the basis of his title to office in the instant case since it was pursuant thereto that Appellant took an oath of office. 100.
Appellee very well knew that Appellant is a CESO
with a constitutionally guaranteed right to security of tenure, yet it sought to dismiss Appellant through a termination letter dated 13 September 2005, only four (4) days after Appellant decided to transfer back to the PSF the three (3) checks supposedly for
70
See Annexes “I” – “P” of the Appeal.
37
Congressman Diaz. The timing betrays Malacañang ’s political motives behind Appellant’s termination. 101.
This Honorable Commission and the CESB have
both written the Appellant that termination of a CESO without cause and due process of law is illegal. Hence, in a desperate and fraudulent attempt to lend a semblance of legality to Appellant’s removal from the DepEd, Malacañang qualified on 23 September 2005, i.e. ten (10) days after the issuance of the termination letter, that Appellant was “terminated as undersecretary (of education) but not as CESO”. Malacañang
later changed its stance and
disguised the termination as “a reassignment to some other government position of the same rank”.71 102. Malacañang ’s cover-up did not end with its conflicting declarations.
Knowing
that
the
termination
reassignment) is patently illegal, Malacañang
(disguised
as
deviously made it
appear that Appellant resigned and that it merely allowed Appellant to continue its services as some form of accommodation. Worse, Malacañang
declared all these through press releases,
obviously to humiliate Appellant before the public.
103. This Honorable Commission should not and cannot sanction such dismissal tainted by bad faith. Just like any other employer, the government cannot transfer an employee as a result of discrimination, in bad faith or as a form of punishment without
71
See Annexes “H-series” of Appeal.
38
sufficient cause.72 As this Honorable Commission has consistently ruled, “(t)he authority (to transfer employees) under the law is not intended to harass or oppress a subordinate on the pretext of advancing and promoting public interest”73. 104. This Honorable Commission can draw guidance from the Supreme Court’s ruling in Pangilinan vs. Maglaya,74 protecting government employees from political vendetta. In said case, the Acting Executive Director of the Land Transportation Office was separated from service the day after his public exposes on the anomalies involving his superiors and his threat to file cases against them. Although the Supreme Court admitted that it was constrained by law to uphold the termination of a temporary employee, it did not hesitate to express its disapproval of the real political motives behind dismissals and declare that the removal, in fact, constitutes grave abuse of discretion: “It is not difficult to see that the petitioner was replaced because of his expos and his threat to bring charges against his superiors. His relief was clearly an act of punishment if not personal vengeance. This is not denied. The respondents, while invoking the law to justify his separation, have made no effort whatsoever to justify their motives. xxx
xxx
xxx
It would be a sorry day, indeed, if a civil servant could be summarily removed from his position for the "sin" of complaining about the irregularities of his superiors. This would not only impair the integrity of the civil service but also 72 Philippine American Life and General Insurance Co. vs. Gramaje, G.R. No. 156963, November 11, 2004. 73 Civil Service Commission Resolution No. 030669, June 10, 2003 citing CSC Resolution No. 98-16-08, June 24, 1998. 74 G.R. No. 104216, August 20, 1993.
39
undermine the campaign to encourage the public, including those in the civil service, to expose and denounce venality in government. Pangilinan's denunciation of the non-reflective license plates was not the act of a rabble-rouser or a publicity-seeker. The record shows that he quietly brought the matter to the attention of his superiors, giving reasons for his misgivings. They took no action. Feeling frustrated, he sought the attention of the media and told them of his objection to the nonreflective license plates. He cited the laws that he claimed had been violated. He narrated his efforts to prevent their violation. He spoke of the indifference of his superiors. In doing all these, he was exercising his right as a citizen, and especially as a civil servant, to denounce official misconduct and improve the public service. xxx
xxx
xxx
Pangilinan was separated the day immediately following his press conference. The Court sees the action as a retaliation. The public respondents say they were merely terminating his incumbency in accordance with existing law. The Court sees that termination as a punishment. Under the expanded definition of judicial power in Article VIII, Section 1, of the Constitution, the Court can declare the acts of the public respondents as tainted with grave abuse of discretion and therefore invalid.” (Emphasis supplied) 105. All told, Appellant humbly and respectfully submits that this Honorable Commission’s Resolution outrightly dismissing his Appeal deserves to be re-examined to conform with law and the evidence presented, and, ultimately, to afford justice to public servants who continue to uphold honesty and integrity despite political pressure.
40
PRAYER WHEREFORE, in view of the foregoing, it is respectfully prayed that: 1)
Resolution
No.
06-0216
promulgated
by
this
Honorable Commission on 1 February 2006 be set aside; 2)
Appellant’s appeal of the Order dated 4 October 2005, signed by the Appellee, be given due course;
3)
The Order dated 4 October 2005 reassigning Appellant to the Department of Labor and Education be nullified as illegal; and
4)
Appellant be retained as Undersecretary for Finance and Administration of the Department of Education.
Other reliefs, just and equitable in the premises, are likewise prayed for.
Quezon City, 20 February 2006.
Counsel for Appellant:
ROWENA V. GUANZON PTR No. 01321430, 1/17/04, Cadiz City IBP Lifetime 1020636, 8/20/04, Bacolod Roll No. 33534
DAMCELLE S. TORRES PTR NO. 4181522/1-03-2006/ Makati IBP NO. 665395/1-05-2006 Laguna Roll of Attorney No. 49400
41
MAE NIÑA REYES PTR No. 7358436 / 1-31-06 / Q.C. IBP No. 646026 / 1-31-06 / Q.C. Roll of Attorney No. 151262 Suite 311 Centro Plaza Scout Torillo corner Scout Madrinan South Triangle, Quezon City 1103
Copy furnished: Secretary Eduardo Ermita Office of the Executive Secretary Malacañang Palace Manila City
Registered Mail No. ________ Date _______________________
EXPLANATION For lack of personnel, a copy of the foregoing Motion for Reconsideration was served by registered mail, rather than by the preferred mode of personal service.
MAE NIÑA REYES
42