Can a person who lacks the necessary qualifications for a public position be appointed to it in a permanent capacity?

Before the Court is a Petition for Review on Certiorari assailing the April 25, 1996 Decision,^[1] and November 20, 1996 Resolution^[2] of the Court of Appeals in CA-G.R. SP No. 38664, which set aside Resolution Nos. 953268^[3] and 955201^[4] of the Civil Service Commission; and declared as null and void - (1) Department Order No. 94-370,^[5] issued by the Department of Interior and Local Government, relieving private respondent of his duties as Department Legal Counsel/Director III and reassigning him as Director III (Assistant Regional Director), Region XI; and (2) Administrative Order No. 235 issued by then President Fidel V. Ramos, dropping private respondent from the rolls of public service, for serious neglect of duty and absences without official leave.

On August 28, 1986, private respondent Atty. Jacob F. Montesa, who is not a Career Executive Service Officer (CESO) or a member of the Career Executive Service, was appointed as "Ministry Legal Counsel - CESO IV in the Ministry of Local Government" (now Department of Interior and Local Government [hereafter referred to as Department]), by then Minister Aquilino Pimentel, Jr. Private respondent's appointment was approved as permanent by the Civil Service Commission.

On July 25, 1987, then President Corazon C. Aquino promulgated Executive Order No. 262, reorganizing the Department. On April 8, 1988, then Secretary Luis T. Santos, who succeeded Minister Pimentel, designated Nicanor M. Patricio as Chief, Legal Service in place of private respondent who, in turn, was directed to report to the office of the Secretary to perform special assignments.

Consequently, private respondent filed before this Court a petition for quo warranto, docketed as G.R. No. 83470,^[6] against then Secretary Luis T. Santos and Nicanor Patricio. On September 26, 1990, we ruled in favor of private respondent Montesa and ordered his reinstatement to his former position.

Meanwhile, Republic Act No. 6758 (otherwise known as the Salary Standardization Law) took effect on July 1, 1989. Pursuant thereto, the position of "Department Service Chiefs," which include the Department Legal Counsel, was reclassified and ranked with "Assistant Bureau Directors" under the generic position title of "Director III".^[7]

Hence, in the execution of the decision of this Court in G.R. No. 83470, respondent was reinstated to the position: "Department Legal Counsel and/or Director III."^[8]

On July 26, 1994, then Secretary Rafael M. Alunan III, citing as reasons the interest of public service and the smooth flow of operations in the concerned offices, issued Department Order No. 94-370, relieving private respondent of his current duties and responsibilities and reassigning him as "Director III (Assistant Regional Director), Region XI."^[9] Private respondent, however, did not report to his new assigned position. Instead, he filed a 90-day sick leave, and upon the expiration thereof on December 5, 1994, he submitted a memorandum for then acting Secretary Alexander P. Aguirre, signifying his intention to re-assume his position as Department Legal Counsel/Chief, Legal Services.^[10]

Thereupon, Acting Secretary Aguirre, by memorandum dated December 6, 1994,^[11] reiterated to private respondent that the issuance of Department Order No. 94-370, transferring him to Region XI, was in keeping with the interest of the public service and of the Career Executive Service (CES) provision on assignment, reassignment, and transfer. Accordingly, private respondent was advised to report to Region XI immediately.

Private respondent wrote a memorandum dated December 12, 1994,^[12] requesting for a reconsideration of Department Order No. 94-370, but to no avail. Private respondent appealed to the Civil Service Commission and the latter issued Resolution No. 95-3268,^[13] dated May 23, 1995 which sustained his reassignment to Region XI, on the grounds that: 1) the subject reassignment was not violative of the due process clause of the Constitution or of private respondent's right to security of tenure; 2) the reassignment did not entail any reduction in rank or status; 3) private respondent could be reassigned from one station to another without his consent as the rule against unconsented transfer applies only to an officer who is appointed to a particular station, and not merely assigned thereto. Private respondent's motion for reconsideration of the aforesaid Resolution was similarly denied by the Commission in Resolution No. 955201 dated August 22, 1995.^[14]

On October 10, 1995, the Department directed private respondent to report to his new assigned post in Region XI, stressing that his continued non-compliance with D.O. No. 94-370 is prejudicial to the interest of public service, particularly in Region XI. Private respondent was also warned that upon his failure to comply, the Department shall be constrained to consider him on Absence Without Leave (AWOL) and as a consequence, drop him from the rolls of public service.^[15]

Instead of complying therewith, private respondent, on October 23, 1995, filed with the Court of Appeals a Petition for Review with prayer for the issuance of a temporary restraining order and/or preliminary injunction. No restraining order or preliminary injunction, however, was issued by the court.

On December 13, 1995, then President Fidel V. Ramos, upon the recommendation of the Department, issued Administrative Order No. 235, dropping private respondent Atty. Jacob F. Montesa, Director III, Legal Service, from the roster of public servants for serious neglect of duty and absences without leave (AWOL).^[16]

On April 25, 1996, the Court of Appeals rendered its decision in favor of private respondent, holding as follows:

WHEREFORE, the petition is GRANTED. Department Order No. 94-370 in so far as it affects petitioner, Jacob F. Montesa, is hereby declared null and void. Petitioner is hereby ordered retained in his position as "Chief, Legal Service" or "Department Legal Counsel" in the DILG, without loss of seniority, rank, emolument and privileges. The DILG Secretary is hereby ordered to release to petitioner his withheld salaries corresponding to the period July 15-21, 1995 and his back salaries, if also withheld, corresponding to the period July 22, 1995 to September 27, 1995.

Finding that petitioner has not paid the amount of P500.00 as deposit for costs (page 1, Rollo), he is hereby ordered to pay the same to the Clerk of this Court within five (5) days from receipt of this decision.

SO ORDERED.^[17]

Both petitioners and private respondent moved for reconsideration. In his Motion for Clarification and/or Partial Motion for Reconsideration, private respondent prayed for "backwages to cover the period from October 5, 1995 up to his actual reinstatement to office, the period from August 1, 1994 to July 14, 1995 having been covered by approved leave of absences with pay, while the period July 15-21, 1995 is the period where his name was included in the payroll but release of his salary was illegally withheld by private respondent Alunan on July 21, 1995, and the period of July 22 to October 4, 1995 is the period where respondent Alunan withheld his salary even before CSC Resolution No. 95-9201 (should be No. 95-3268) became executory."^[18] Respondent likewise prayed for the award of RATA during the period of his illegal dismissal.

Petitioners, on the other hand, posited that the decision of the Court of Appeals is not confluent with Administrative Order No. 235, issued on December 13, 1995 by then President Ramos which dropped petitioner from the roster of public servants. They further argued that until and unless the said Order is declared illegal and/or invalid, the presumption is in favor of its validity and it is incumbent upon private respondent to comply therewith so as not to prejudice the public service.

On November 20, 1996, the Court of Appeals issued the assailed resolution modifying its April 25, 1996 decision, thus:

WHEREFORE, premises considered, the Motion for Reconsideration filed by public respondents is hereby DENIED for lack of merit. Petitioner's Motion for Clarification and/or Partial Motion for Reconsideration is hereby GRANTED. The dispositive portion of the decision is hereby modified to read as follows:

WHEREFORE, the petition is GRANTED. Department Order No. 94-370 in so far as it affects petitioner, Jacob Montesa, and Administrative Order No. 235 are hereby declared null and void. Petitioner is hereby ordered reinstated to his position as "Chief Legal Service" or "Department Legal Counsel" in the DILG, without loss of seniority, rank, emolument and privileges. The DILG Secretary is hereby ordered to release to petitioner his withheld salaries and backwages, including allowances (RATA) and other benefits, to which petitioner would have been entitled had he not been illegally removed, corresponding to the period July 15, 1995 up to his actual reinstatement to office.

SO ORDERED.^[19]

Dissatisfied, petitioners filed the instant petition with this Court, contending that:

I

RESPONDENT COURT GRAVELY ERRED IN RULING THAT RESPONDENT MONTESA'S REASSIGNMENT IS ACTUALLY AN UNCONSENTED TRANSFER.

II
RESPONDENT COURT GRAVELY ERRED IN RULING THAT RESPONDENT MONTESA'S "TRANSFER" CHANGES HIS APPOINTMENT FROM PERMANENT TO TEMPORARY AND VIOLATES HIS CONSTITUTIONAL RIGHT TO SECURITY OF TENURE.

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

IV
RESPONDENT COURT GRAVELY ERRED IN RULING THAT RESPONDENT MONTESA IS ENTITLED TO BACKWAGES, INCLUDING RATA AND OTHER BENEFITS, CORRESPONDING TO THE PERIOD FROM JULY 15, 1995 UP TO HIS ACTUAL REINSTATEMENT.^[20]

Succinctly put, the pivot of inquiry here boils down to the nature of the appointment of private respondent Atty. Jacob F. Montesa.

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

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

Corollarily, the required Career Executive Service eligibility may be then acquired in the following manner:

Career Executive Service Eligibility

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

In the case at bar, there is no question that private respondent does not have the required CES eligibility. As admitted by private respondent in his Comment, he is "not a CESO or a member of the Career Executive Service."

In the case of Achacoso v. Macaraig, et al.,^[23] the Court held that:

It is settled that a permanent appointment can be issued only "to a person who meets all the requirements for the position to which he is being appointed, including the appropriate eligibility prescribed." Achacoso did not. At best, therefore, his appointment could be regarded only as temporary. And being so, it could be withdrawn at will by the appointing authority and "at a moment's notice," conformably to established jurisprudence.

The Court, having considered these submissions and the additional arguments of the parties in the petitioner's Reply and the Solicitor-General's Rejoinder, must find for the respondents.

The mere fact that a position belongs to the Career Service does not automatically confer security of tenure on its occupant even if he does not possess the required qualifications. Such right will have to depend on the nature of his appointment, which in turn depends on his eligibility or lack of it. A person who does not have the requisite qualifications for the position cannot be appointed to it in the first place or, only as an exception to the rule, may be appointed to it merely in an acting capacity in the absence of appropriate eligibles. The appointment extended to him cannot be regarded as permanent even if it may be so designated.

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

Private respondent capitalizes on his lack of CES eligibility by adamantly contending that the mobility and flexibility concepts in the assignment of personnels under the Career Executive Service^[24] do not apply to him because he is not a Career Executive Service Officer. Obviously, the contention is without merit. As correctly pointed out by the Solicitor General, non-eligibles holding permanent appointments to CES positions were never meant to remain immobile in their status. Otherwise, their lack of eligibility would be a premium vesting them with permanency in the CES positions, a privilege even their eligible counterparts do not enjoy.

Then too, the cases on unconsented transfer invoked by private respondent find no application in the present case. To reiterate, private respondent's appointment is merely temporary; hence, he could be transferred or reassigned to other positions without violating his right to security of tenure.

WHEREFORE, based on the foregoing, the Petition is GRANTED. The April 25, 1996 Decision and the November 20, 1996 Resolution of the Court of Appeals in CA-G.R. SP No. 38664 are REVERSED and SET ASIDE. Resolution Nos. 953268 and 955201 of the Civil Service Commission are REINSTATED. No pronouncement as to costs.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, De Leon, Jr., and Sandoval-Gutierrez, JJ., concur.

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^[1] Rollo, pp. 40-51.

^[2] Rollo, pp. 52-58.

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

^[4] Dated August 22, 1995; Rollo, pp. 273-275.

^[5] Rollo, p. 60.

^[6] Montesa v. Santos, et al., 190 SCRA 50 (1990).

^[7] National Compensation Circular No. 58 implementing Sections 6 and 23 of R.A. No. 6758.

^[8] Rollo, p. 59.

^[9] Rollo, p. 60.

^[10] Rollo, p. 207.

^[11] Rollo, p. 61.

^[12] Rollo, pp. 62-64.

^[13] Rollo, pp. 65-67.

^[14] Rollo, pp. 273-275.

^[15] Rollo, p. 340.

^[16] Rollo, pp. 346-348.

^[17] Rollo, pp. 50-51.

^[18] Rollo, pp. 53-54.

^[19] Rollo, pp. 57-58.

^[20] Rollo, p. 27.

^[21] Part III, Chapter I, Art. IV, par. 5(c); Pursuant to Presidential Decree No. 1.

^[22] CES Handbook, pp. 5-6.

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

^[24] Assignments, Reassignments and Transferees. . .

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