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SAMUEL B. ONG v. OFFICE OF PRESIDENT

FACTS:

Samuel B. Ong filed a petition for review on certiorari to challenge the denial of the petition for quo warranto he filed against Victor Bessat. The petition sought to nullify Ong's removal from the position of NBI Director III and his replacement by Bessat. Ong died during the pendency of the petition, but his wife and children sought substitution. The Court of Appeals (CA) denied the petition, stating that a private person filing a petition for quo warranto must prove their entitlement to the position. The CA also held that Ong's appointment as NBI Director III was temporary and co-terminous with the appointing authority, meaning he had no security of tenure.

Federico S. Ong was appointed as Director III of the NBI with co-terminous status with the President. In June 2004, the Acting Director of the NBI issued a memorandum circular informing Ong that his appointment would end on June 30, 2004. Ong challenged his termination, arguing that his appointment should have lasted until the end of the President's tenure. The CA upheld Ong's termination, ruling that his appointment was co-terminous with the President's tenure and Ong served at the pleasure of the President. The CA also dismissed Ong's argument against Bessat's eligibility.

Ong filed a petition with the Supreme Court, arguing that his removal was unlawful and that as a government employee, he was entitled to protection from arbitrary removal. The Office of the Solicitor General (OSG) argued in its comment that Ong's replacement was fair and in accordance with the law. They cited Aklan College v. Guarino and relevant provisions in the Omnibus Rules Implementing Book V of the Revised Administrative Code of 1987 to support their position.

The OSG argued that Ong's appointment as Director III was illegal because he did not have the appropriate civil service eligibility. They also explained that the memorandum circular issued by the Acting Director did not remove Ong from his position, but reminded him that his appointment would lapse into a de facto or hold-over status unless he was re-appointed. Ong's colleagues applied for re-appointment, and Bessat was subsequently appointed as Director III, effectively replacing Ong. The OSG further argued that Ong abandoned his right to security of tenure by accepting promotional appointments without the required eligibility.

ISSUES:

  1. Whether MC No. 02-S.2004 effectively removed Ong from his position as Director III.

  2. Whether the appointment of Bessat as Ong's replacement cured any defect in Ong's removal.

  3. Whether Ong's appointment as Director III was co-terminous with the appointing authority and therefore revocable at the pleasure of the appointing authority.

  4. Whether a temporary appointee without the requisite CES eligibility can hold the position in a permanent capacity.

  5. Whether an appointee holding a position "co-terminus with the appointing authority" is entitled to remain in the position until the end of the appointing authority's tenure.

RULING:

  1. MC No. 02-S.2004 did not in effect remove Ong from his position as Director III. It merely informed Ong that his co-terminous appointment had lapsed into a de facto/hold-over status.

  2. Assuming that Ong was effectively removed by MC No. 02-S.2004, his removal was cured when the President appointed Bessat as his replacement.

  3. Ong's appointment as Director III was co-terminous with the appointing authority and could be revoked by the President even without cause and at a short notice.

  4. A temporary appointee without the requisite CES eligibility cannot hold the position in a permanent capacity. Temporary appointments are made only to prevent hiatus in the government's rendition of public service, and a temporary appointee can be removed even without cause and at a moment's notice.

  5. An appointee holding a position "co-terminus with the appointing authority" is not entitled to remain in the position until the end of the appointing authority's tenure. A co-terminous appointment is co-existent with the tenure of the appointing authority or at his pleasure. Therefore, the appointment can be revoked or replaced without prior notice, due hearing, or cause.

PRINCIPLES:

  • The appointing authority has the power to remove an appointee from a position.

  • A co-terminous appointment may be revoked by the appointing authority without cause and at a short notice.

  • The right to security of tenure is not available to employees whose appointments are contractual and co-terminous in nature.

  • The possession of the required Civil Service Eligibility (CES) makes an appointment in the career executive service permanent.

  • Security of tenure in the career executive service pertains only to rank and not to the office or position to which one is appointed.

  • An appointee without the requisite eligibility cannot hold a position in a permanent capacity.

  • Temporary appointees can be removed without cause and at a moment's notice.

  • A co-terminous appointment is co-existent with the tenure of the appointing authority or at his pleasure.

  • The replacement of a temporary appointee is not considered removal but an expiration of term, and no prior notice, due hearing, or cause is necessary for the replacement.

  • A non-eligible temporary appointee can be replaced by another non-eligible appointee without legal challenge.