G.R. No. L-65439 November 13, 1985 PAMANTASAN NG LUNGSOD NG MAYNILA, petitioner vs. HON.

INTERMEDIATE APPELLATE COURT, HON. FILEM0N FERNANDEZ, JR., HON. ALBINA MANALODANS as Commissioners of Civil Service Commission and HERNANI P. ESTEBAN, respondents. Office of the Legal Officer for petitioner.

GUTIERREZ, JR., J.: The sole issue raised in this petition is the status of respondent Hernani Esteban's appointment as Vice-President for Administration of the Pamantasan ng Lungsod ng Maynila that is, whether or not he holds the position in a permanent capacity as to guarantee as security of tenure. Respondent Esteban asserts that his appointment is permanent whereas the petitioner maintains its temporary and contractual nature such that the respondent may be dismissed at any time even without cause. Prior to his joining the Pamantasan, Dr. Esteban had been a permanent employee in the government service for twenty five (25) years. Until May 20, 1973, he was officially connected with the Philippine College of Commerce, a state-owned educational institution as its Vice-President for Academic Affairs. Shortly before that date, the Board of Trustees of the College in a bold move to streamline the college organization resolve to abolish the position of Vice-President for Academic Affairs. Private respondent was given the option to continue teaching at the Philippine College of Commerce which he accepted until his transfer to the Pamantasan ng Lungsod ng Maynila, upon the invitation of its president, Dr. Consuelo Blanco. At the Pamantasan, Dr. Esteban was initially extended an ad interim temporary appointment as Vice-President for Administration by Dr. Consuelo Blanco. Dr. Esteban received from the Secretary of Pamantasan a 'Notification of Confirmation of Temporary Appointment' dated June 28, 1973. His appointment was 'effective May 21, 1973 until June 30, 1974, unless sooner terminated.' On July 5, 1974, the Secretary of Pamantasan sent him a 'Notification of Renewal of Temporary Appointment' indicating that his appointment was renewed 'effective July 1, 1974 until August 31, 1974.' A month later, on August 30, 1974, he received from the University Secretary another 'notification of renewal of temporary appointment' informing him that the Board of Regents, on recommendation of the President of the University approved the renewal of his appointment 'effective September 1, 1974 until June 30, 1975' with an increased salary of P17,160 per annum.

On October 15, 1974, incident to a further increase of his salary, Dr. Esteban was notified that his appointment as vice-president for administration at a salary of P17,600 per annum had been renewed effective September 1, 1974 until June 30, 1975. On June 26, 1975, he received another 'Notification of Renewal of Temporary Appointment' as Vice-President for Administration with at salary of P21,760 per annum, 'effective July 1, 1975 until June 30, 1976.' On July 26, 1975, Dr. E qqqsteban discovered that he was not included in the list of employees recommended for permanent appointments. He wrote Dr. Consuelo Blanco requesting the conversion of his temporary appointment to a permanent one, considering his two and half (2) years service. On July 26, 1975, Dr. Esteban received an answer to his request from President Blanco who indicated various reasons for her not acting favorably on his request. On August 1, 1975, Dr. Esteban received a 'Notification of Ad Interim Appointment notifying him that the president of the university had approved his appointment as Professor III with a salary of P15,600 per annum 'effective August 1, 1975'. He was further designated as Director of the Institute of Continuing Education and Community Service with an honorarium of P5,676 per annum, likewise effective August 1, 1975. On August 7, 1975, Dr. Consuelo Blanco, issued a memorandum circular terminating Dr. Esteban's appointment as Vice-President for Administration effective July 31, 1975. His appointment dated June 26, 1975 and effective until June 30, 1976 had been withdrawn before it could be confirmed by the Pamantasan Board of Regents. On the same date, August 7, 1975, Dr. Esteban appealed to the Civil Service Commission for the protection of his tenure in the Pamantasan . On October 9,1975, the Civil Service Commission ruled that:
The temporary nature of the appointment issued to Dr. Esteban as Vice President for Administration is conceded. Such being the Case, his services may be terminated at any time with or without request that he be extended permanent appointment ,or that his temporary appointment be converted into permanent one, it may be stated that the issuance of such appointment is addressed to the sound discretion of the appointing official.

Dr. Esteban flied a motion for the reconsideration of that ruling. On January 14, 1976, the Civil Service Commission ruled favorably on Dr. Esteban's motion. It stated that he was fully qualified for the position of Vice-President for Administration and certified him "for appointment therein under permanent status." The Commission stated:
In view thereof, and in the absence of any apparent justifiable reason why Dr. Esteban should remian under temporary status for the length of time prior to the withdrawal of his appointment as Vice President for Administration in that University, and as it further appears that he is fully qualified for the position in question in view of his extensive

experience in the fields of public administration and management, this Commission hereby certifies him for appointment therein under permanent status.

The Pamantasan, in turn, asked for the reconsideration of that ruling. The Commission, in an undated Resolution No. 75, Series of 1976, came out with a statement which confused more than it clarified. It stated that its certification should not be interpreted as directing the reinstatement of Dr. Esteban because 'it was never intended to be so On May 28, 1976 Esteban asked the commission to reconsider Resolution No. 75, Series of 1976. He also asked for the payment of the salaries and allowances due him as of September 1975, which the Pamantasan had withheld. His request was denied by the commission in its undated resolution No. 158, Series of 1976. On September 15, 1976 Esteban reiterated his request for payment of his salaries. On September 20, 1976, he asked for a review of the Pamantasan's decision to terminate his appointment as Vice-President for Administration. On December 1, 1976, his request for payment of his salaries was referred by the Commission to the treasurer of the Pamantasan. On July 6, 1977, the Commission again modified its earlier resolution in as case. It ruled that Dr. Consuelo Blanco, had no authority to extend to Dr. Esteban an ad interim appointment as Vice President for Administration as only the Board of Regents was empowered to do that under Article 55 of the University Charter (Rep. Act 4196). However, it ruled that, as a de facto officer, he was entitled to be paid the salary of that position. Dr. Esteban and the Pamantasan filed motions for reconsideration of that ruling prompting the Commission to order them to submit "all papers and documents pertinent to that case." On June 6, 1978, Presidential Decree No.1409 was issued creating a Merits System Board in the Civil Service Commission to hear and decide cases brought before it on appeal by officers and employees who feel aggrieved by the determination of officials on personnel matters. The Board required the Pamantasan to submit its complete records on the appointment and termination of Dr. Esteban as vice-president for administration. While the records officer of the Pamantasan submitted copies of the notices sent to Esteban regarding his appointment as vice-president for administration, he did not submit a copy of the Board's Resolution No. 485 passed June 20, 1973 confirming the ad interim appointments of several academic and non-academic personnel of said university among which was that of Dr. Hernani Esteban "effective May 21, 1973." He

produced a copy of the memorandum circular dated August 7, 1915 of the President of the Pamantasan terminating Dr. Esteban's service as of July 31, 1975. In Resolution No. 597 dated November 11, 1980, the Commissioner directed the Pamantasan to submit any document or documents directly or actually showing that Dr. Hernani Esteban was appointed vice-president for administration of the Pamantasan in a permanent capacity. On January 15, 1981, the Pamantasan by 2nd Indorsement, despite the existence of Board Resolution No. 485, replied that "we cannot find any document showing that Dr. Esteban was appointed ... in a permanent capacity. In view of the Pamantasan's failure to produce the minutes of the regular Board of Regents meeting on June 20, 1973 when Esteban's appointment was approved the Commission in its Resolution No. 81-279 dated March 5, 1981, concluded that there is truth to the claim of Dr. Esteban that his appointment as Vice-President for Administration of the Pamantasan was approved as permanent. It cited Government of the Philippine Islands vs. Martinez, (44 Phil. 817) that when a party has it in his possession or power to produce the best evidence of which the case in its nature is susceptible and withholds it, the fair presumption is that the evidence is withheld for some sinister motive and that its production would thwart his evil or fraudulent purpose. The Commission ruled that "Dr. Hernani Esteban had been appointed Vice-President for Administration of Pamantasan with permanent status and that the temporary appointment issued to him did not alter his permanent status as he had 'already acquired a vested right as well as the right to security of tenure', that he cannot unceremoniously removed therefrom, nor can the status of his appointment be changed without cause, as provided by law and after due process." The Commission held that the termination of his services was obviously illegal. It directed his immediate reinstatement to the position of Vice-President for Administration of Pamantasan and the payment of his back salaries, allowances and other benefits which he failed to receive from the time he was separated therefrom. The Pamantasan filed a motion for reconsideration of that resolution. It also submitted for the first time a copy of Resolution No. 485. The Commission, in Resolution No. 71-510 dated April 23, 1981 chided the Pamantasan for having suppressed said piece of evidence from which "the intention of, or the accurate action taken by PLM Board of Regents on Dr. Esteban's appointment in question, may be determined." Following the decision of the Supreme Court in the case of Summers v. Ozaeta, (81 Phil. 760), the Commission denied the Pamantasan's motion for reconsideration and ruled that "Upon confirmation of the Board of Regents of the ad interim appointment of Dr. Esteban the same became permanent." Upon getting this ruling, the Pamantasan filed a petition for certiorari against Dr. Esteban and Civil Service Commissionssioners Filemon Fernandez, Jr. and Albina

Manalo Dans. The petition was docketed as Civil Case No. 139840 of the Court of First Instance of Manila, Branch XIII. On January 8, 1982, the trial court rendered a decision reversing the Commission's Resolution No. 81-279 and adopted the earlier Commission Resolution dated July 6, 1977 holding that Private respondent Dr. Esteban's appointment was invalid, though he may be considered as a de facto vice-president of the University up to October 9, 1975, the date when the Commission ruled that his appointment was temporary and could be terminated at any time. The private respondent appealed to the Intermediate Appellate Court. On September 26, 1983. the respondent Intermediate Appellate Court rendered a decision reversing the trial court's decision. The dispositive portion of the appellate decision reads:
Wherefore, the appealed decision is hereby revised and set aside. The Pamantasan's petition for certiorari is denied. Resolution No 81-279 dated March 5, 1981, as well as Resolution No. 81-510 dated April 23, 1981, of the respondent Civil Service Commission, declaring as permanent the appointment of the appellant Dr. Hernani Esteban as vicepresident for administration of the university under the Board of Regents' Resolution No. 485 dated June 20, 1973, and ordering his immediate reinstatement to that position with back salaries, allowances and other benefits, is affirmed, provided he has not yet reached the age of compulsory retirement from the government service; otherwise, he shall be entitled to back salaries, allowances and other benefits only up to the time he should handle been reared from the said position.

From the decision of the Intermediate Appellate Court and after its motion for reconsideration had been denied petitioner Pamantasan ng Lungsod ng Maynila filed the present petition, now the subject of this review. We find no error in the pronouncements of the Intermediate Appellate Court. We rule in favor of the respondents. From the arguments, it is easy to see why the petitioner should experience difficulty in understanding the situation. Private respondent had been extended several "ad-interim" appointments which petitioner mistakenly understands as appointments temporary in nature. Perhaps, it is the literal translation of the word "ad interim" which creates such belief. The term is defined by Black to mean "in the meantime" or for the time being, Thus, an officer ad interim is one appointed to fill a vacancy, or to discharge the duties of the office during the absence or temporary incapacity of its regular incumbent (Black's Law Dictionary, Revised Fourth Edition, 1978). But such is not the meaning nor the use intended in the context of Philippine law. In referring to Dr. Esteban's appointments, the term is not descriptive of the nature of the appointments given to him. Rather, it is used to denote the manner in which said appointments were made, that is, done by the President of the Pamantasan in the meantime, while the Board of Regents, which is originally vested by the University Charter with the power of appointment, is unable to act. Thus, we held in Summers v. Ozaeta (81 Phil. 760):

... an ad interim appointment is one made in pursuance of paragraph (4), section 10, Article VII of the Constitution, which provides that the President shall have the power to make appointments during the recess of the Congress, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress.' lt is an appointment permanent in nature, and the circumstance that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. An ad interim appointment is disapproved certainly for a reason other than that its provisional period has expired. Said appointment is of course distinguishable from an 'acting' appointment which is merely temporary, good until another permanent appointment is issued.

Not only is the appointment in question an ad interim appointment, but the same is also a confirmed ad interim appointment. In its Resolution No. 485, dated June 20, 1973, the Pamantasan Board of Regents verified respondent Esteban's appointment without condition nor limitation as to tenure. As of that moment, it became a regular and permanent appointment. In other words, if the Board of Regents is in session, the Pamantasan President merely nominates while the Board issues the appointment. But when the Board is not in session, the President is authorized to issue ad interim appointments. Such appointments are permanent but their terms are only until the Board disapproves them. If confirmed, the appointee's term is converted into the regular term inherent in the position. Petitioner centers its arguments and tries to fix the attention of the court to the fact that all notices of appointments, renewals, and confirmation thereof all declare the same to be temporary, carrying fixed commencement and termination dates, "unless sooner terminated." As expressed by public respondent, "... This stubborn insistence is anchored on the notifications of temporary appointment sent to private respondent Esteban by the Secretary of Pamantasan. However, this insistence deliberately ignores ... Resolution No. 485 dated June 20, 1973 of the Board of Regents ...". And correctly so argued. "In case of conflict between a notification issued by the Secretary of the University which is supposed to reflect the true content of a Board Resolution and the Resolution itself of said Board of Regents of said University, the latter is controlling for obvious reasons. The Secretary of the University has no authority to alter or add something which is not provided for in the Resolution of the Board of Regents ...". Thus, respondent Intermediate Appellate Court held:
The permanent nature of appellant's appointment was not altered or diminished by the misleading 'notifications' which were sent to him by the secretary of the university president, referring to his appointment as 'temporary', nor by his uninformed acceptance thereof without knowledge of the true contents of Resolution No. 485 which the university president appears to have studiously suppressed.

There is nothing in the Pamantasan Board of Regents' Resolution No. 485 which suggests that respondent Esteban's appointment was temporary. The Board's action was to confirm or reject an existing ad interim appointment. If respondent's appointment was intended to be temporary, it should have been expressly stated. It cannot be made to rest on inconclusive evidence, specially because a temporary appointment divests

the temporary appointee of the constitutional security of tenure against removal without cause even if he is a civil service eligible." (Tolentino v. de Jesus, 56 SCRA 167, cited in Cortez v. Bartolome, 100 SCRA 1). Further supporting private respondent's stand is the list of permanent personnel which was submitted to the Commission by the university president herself on March 3, 1975 for recognition of their permanent status by the Commission. The appellant's name was the first in that list (Exhibit 8-B). The permanent status of private respondent's appointment as Vice-President for Administration at Pamantasan was recognized by the Civil Service Commission in its lst Indorsement dated April 18, 1975 upon the request of petitioner. This fact is borne out by the records and the evidence and found as such by the Intermediate Appellate Court, the Civil Service Commission as well as the Court of First Instance. From the foregoing, there appears an intention to deprive private respondent of his rights as a permanent appointee. With strained relations and differences in professional opinion between the private respondent and the Pamantasan President, Dr. Esteban was led to believe that his services were terminable at pleasure. The power to appoint is, in essence, discretionary. The appointing power has the right of choice which he may exercise freely according to his judgment, deciding for himself who is best qualified among those who have the necessary qualifications and eligibilities. lt is a prerogative of the appointing power that may be availed of without liability, provided however, that it is exercised in good faith for the advancement of the employer's interest and not for the purpose of defeating or circumventing the rights of the employees under special laws or under valid agreements, and provided further, that such prerogatives are not exercised in a malicious, harsh, oppressive, vindictive or wanton manner, or out of malice or spite (Government Service and Insurance System v. Ayroso 96 SCRA 213). The general rule is that the power of appointment must remain unhampered by judicial intervention. However, when the law is violated or when there is grave abuse of discretion, we have to step in. Otherwise the situation aptly described by newspaperman Jesus Bigornia would exist as he had written:
... With the sword of Damocles hanging over the heads of faculty members, the university has spawned a meek, spineless, even subservient corps of professors and instructors. (Newsman's Notes, Bulletin Today, January 23, 1976).

We cannot also sanction the termination of private respondent's services by petitioner. With his appointment now settled as permanent., the Civil Service law and the Constitution guarantee private respondent's security of tenure as 'No officer or employe in the Civil Service shall be suspended or dismissed except for cause as provided by law" (Section 3, Article XII, the 1973 Philippine Constitution). Petitioner has failed to substantiate its allegations of incompetence against respondent Esteban whose record of government service appears quite impressive. Esteban was not dimissed for cause after proper proceedings. His appointment was terminated on the ground that it was temporary.

The intermediate Appellate Court ordered the payment of full back salaries to Dr. Esteban provided he has not reached the age of compulsory retirement from the government service. It is not clear from the records as to when Dr. Esteban actually ceased working for Pamantasan. Under the law, he is entitled to full pay, allowances, and other benefits during the period that he was actually reporting for work and rendering services in whatever capacity, whether teaching, research or administration. As of backwages, the amount is generally based on the equivalent of three years' earnings (Philippine Airlines, Inc. v. National Labor Relations Commission, 126 SCRA 223; Insular Life Assurance Co., Ltd. v. National Labor Relations Commission, 135 SCRA 697). In line with the policy adopted by this Court to do away with the attendant delay in awarding backwages because of the extended hearings necessary to prove the earnings, elsewhere of each and every employee (Philippine Airlines, Inc. v. National Labor Relations Commission, supra, citing Mercury Drug Co., Inc. v. Court of Industrial Relations, 56 SCRA 694), the formula for computing the same calls for fixing the award of backwages to three years. However, in Dy Keh Beng v. International Labor and Marine Union, 90 SCRA 162, citing Mercury Drug Co., et al. v. Court of Industrial Relations, 56 SCRA 694, 712), we held the amount of backwages to be "subject to deduction whre there are mitigating circumstances in favor of the employer, but subject to increase whree there are aggravating circumstances. (Tupas Local Chapter No. 979, et al. v. National Labor Relations Commission, et al., G. R. No. 60532-33, November 5,\1985; Progressive Development Corporation v. Progressive Employees' Union, 80 SCRA 434.) Considering that in the case at bar, more than ten (10) years have elpased from the date respondent Esteban as to the true nature of his appointment and "studiously suppressing" material data to effectively deprive the latter of his rights as a permanent employee, we find an award of five (5) years backpay to respondent Dr. Esteban just and equitable under the circumstances, assuming he has not reached retirement age in the meantime. WHEREFORE, the petition for review on certiorari is hereby DISMISSED for lack of merit. The decision appealed from is affirmed subject to the modification in the payment of back salaries as stated above. SO ORDERED. G.R. NO. L-69137 August 5, 1986 FELIMON LUEGO, petitioner-appellant, vs. CIVIL SERVICE COMMISSION and FELICULA TUOZO, respondents-appellees. Jose Batiquin for petitioner-appellant. Fausto F. Tugade for private respondent-appellee.

CRUZ, J.: Stripped of irrelevant details and impertinent incidents that have cluttered the voluminous record, the facts of this case may be briefly narrated as follows: The petitioner was appointed Administrative Officer 11, Office of the City Mayor, Cebu City, by Mayor Florentino Solon on February 18, 1983. 1 The appointment was described as permanent" but the Civil Service Commission approved it as "temporary," subject to the final action taken in the protest filed by the private respondent and another employee, and provided "there (was) no pending administrative case against the appointee, no pending protest against the appointment nor any decision by competent authority that will adversely affect the approval of the appointment." 2 On March 22, 1984, after protracted hearings the legality of which does not have to be decided here, the Civil Service Commission found the private respondent better qualified than the petitioner for the contested position and, accordingly, directed "that Felicula Tuozo be appointed to the position of Administrative Officer 11 in the Administrative Division, Cebu City, in place of Felimon Luego whose appointment as Administrative Officer II is hereby revoked." 3 The private respondent was so appointed on June 28, 1984, by the new mayor, Mayor Ronald Duterte. 4 The petitioner, invoking his earlier permanent appointment, is now before us to question that order and the private respondent's title. The issue is starkly simple: Is the Civil Service Commission authorized to disapprove a permanent appointment on the ground that another person is better qualified than the appointee and, on the basis of this finding, order his replacement by the latter? The Solicitor General, rather than face the question squarely, says the petitioner could be validly replaced in the instant case because his appointment was temporary and therefore could be withdrawn at will, with or without cause. Having accepted such an appointment, it is argued, the petitioner waived his security of tenure and consequently ran the risk of an abrupt separation from his office without violation of the Constitution. 5 While the principle is correct, and we have applied it many times, 6 it is not correctly applied in this case. The argument begs the question. The appointment of the petitioner was not temporary but permanent and was therefore protected by Constitution. The appointing authority indicated that it was permanent, as he had the right to do so, and it was not for the respondent Civil Service Commission to reverse him and call it temporary. The stamping of the words "APPROVED as TEMPORARY" did not change the character of the appointment, which was clearly described as "Permanent" in the space provided for in Civil Service Form No. 33, dated February 18, 1983. 7 What was temporary was the approval of the appointment, not the appointment it sell And what made the approval temporary was the fact that it was made to depend on the condition

specified therein and on the verification of the qualifications of the appointee to the position. The Civil Service Commission is not empowered to determine the kind or nature of the appointment extended by the appointing officer, its authority being limited to approving or reviewing the appointment in the light of the requirements of the Civil Service Law. When the appointee is qualified and authorizing the other legal requirements are satisfied, the Commission has no choice but to attest to the appointment in accordance with the Civil Service Laws. As Justice Ramon C. Fernandez declared in an earlier case:
It is well settled that the determination of the kind of appointment to be extended lies in the official vested by law with the appointing power and not the Civil Service Commission. The Commissioner of Civil Service is not empowered to determine the kind or nature of the appointment extended by the appointing officer. When the appointee is qualified, as in this case, the Commissioner of Civil Service has no choice but to attest to the appointment. Under the Civil Service Law, Presidential Decree No. 807, the Commissioner is not authorized to curtail the discretion of the appointing official on the 8 nature or kind of the appointment to be extended.

Indeed, the approval is more appropriately called an attestation, that is, of the fact that the appointee is qualified for the position to which he has been named. As we have repeatedly held, such attestation is required of the Commissioner of Civil Service merely as a check to assure compliance with Civil Service Laws. 9 Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the qualifications required by law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. This is a political question involving considerations of wisdom which only the appointing authority can decide. It is different where the Constitution or the law subjects the appointment to the approval of another officer or body, like the Commission on Appointments under 1935 Constitution. 10 Appointments made by the President of the Philippines had to be confirmed by that body and could not be issued or were invalidated without such confirmation. In fact, confirmation by the Commission on Appointments was then considered part of the appointing process, which was held complete only after such confirmation. 11 Moreover, the Commission on Appointments could review the wisdom of the appointment and had the power to refuse to concur with it even if the President's choice possessed all the qualifications prescribed by law. No similar arrangement is provided for in the Civil Service Decree. On the contrary, the Civil Service Commission is limited only to the non-discretionary authority of determining whether or not the person appointed meets all the required conditions laid down by the law.

It is understandable if one is likely to be misled by the language of Section 9(h) of Article V of the Civil Service Decree because it says the Commission has the power to "approve" and "disapprove" appointments. Thus, it is provided therein that the Commission shag have inter alia the power to:
9(h) Approve all appointments, whether original or promotional to positions in the civil service, except those presidential appointees, members of the Armed Forces of the Philippines, police forces, firemen, and jailguards, and disapprove those where the appointees do not possess appropriate eligibility or required qualifications. (emphasis supplied)

However, a full reading of the provision, especially of the underscored parts, will make it clear that all the Commission is actually allowed to do is check whether or not the appointee possesses the appropriate civil service eligibility or the required qualifications. If he does, his appointment is approved; if not, it is disapproved. No other criterion is permitted by law to be employed by the Commission when it acts on--or as the Decree says, "approves" or "disapproves" an appointment made by the proper authorities. Significantly, the Commission on Civil Service acknowledged that both the petitioner and the private respondent were qualified for the position in controversy. 12 That recognition alone rendered it functus officio in the case and prevented it from acting further thereon except to affirm the validity of the petitioner's appointment. To be sure, it had no authority to revoke the said appointment simply because it believed that the private respondent was better qualified for that would have constituted an encroachment on the discretion vested solely in the city mayor. In preferring the private respondent to the petitioner, the Commission was probably applying its own Rule V, Section 9, of Civil Service Rules on Personnel Actions and Policies, which provides that "whenever there are two or more employees who are nextin-rank, preference shall be given to the employee who is most competent and qualified and who has the appropriate civil service eligibility." This rule is inapplicable, however, because neither of the claimants is next in rank. Moreover, the next-in-rank rule is not absolute as the Civil Service Decree allows vacancies to be filled by transfer of present employees, reinstatement, re-employment, or appointment of outsiders who have the appropriate eligibility. 13 There are apparently no political overtones in this case, which looks to be an honest contention between two public functionaries who each sincerely claims to be entitled to the position in dispute. This is gratifying for politics should never be permitted to interfere in the apolitical organization of the Civil Service, which is supposed to serve all the people regardless of partisan considerations. This political detachment will be impaired if the security of tenure clause in the Constitution is emasculated and appointments in the Civil Service are revoked and changed at will to suit the motivations and even the fancies of whatever party may be in power. WHEREFORE, the resolution of the respondent Commission on Civil Service dated March 22, 1984, is set aside, and the petitioner is hereby declared to be entitled to the

office in dispute by virtue of his permanent appointment thereto dated February 18, 1983. No costs. SO ORDERED. G.R. No. L-26785 May 23, 1991 DEOGRACIAS A. REGIS, JR., petitioner, vs. SERGIO OSMEA, JR., VICENTE PACIFICO, CITY OF CEBU, CITY COUNCIL OF CEBU, CITY TREASURER AND CITY AUDITOR, respondents. Basilio E. Duaban for petitioner.

DAVIDE, JR., J.:p This is an appeal from the Decision 1 of the Court of First Instance of Cebu dated 28 December 1965 in Civil Case No. R-8778, dismissing the petition for Mandamus filed on 9 March 1965 by petitioner to compel respondents to reinstate him to his former position as driver, Motorized Section of the Cebu City Police Department (CPD), with back salaries from the date of his ouster until reinstatement, and to pay him moral and exemplary damages and attorney's fees. 2 The material operative facts in this case, as admitted by the parties in the stipulation of facts they submitted in the court below and as established by the other evidence introduced by them pursuant to the reservations they made in the stipulation of facts are as follows: I. Per stipulation of facts: 3
1. On January 8, 1958, petitioner was appointed by then Cebu City Mayor, Ramon Duterte, as driver, Motorized Division of the Cebu Police Department, with a yearly compensation of P1,440.00, as shown by a true copy of his appointment hereto attached and marked Annex "A"; 2. On January 8, 1960, petitioner was issued another appointment as "driver" of the Cebu Police Department, at an increased yearly compensation at P1,560.00, a true copy of which is hereto attached and marked Annex "A-1"; 3 On December 21, 1961, petitioner was issued another appointment by then Cebu City Mayor Carlos J. Cuizon as "Driver, Civilian Employee" of the Cebu Police Department at the increased yearly compensation of P1,920.00 a true copy of which is hereto attached and marked as Annex "A-2"; 4. On November 7, 1963, petitioner was extended an appointment as "driver (Radio Patrol) Civilian Employee" of the Cebu Police Department at the increased yearly compensation of P2,040.00, true copy of which is marked as Annex "A-3";

5 On April 14, 1964, petitioner was removed from his position in the Cebu Police Department without prior investigation or hearing, the termination having been made in a letter of dismissal quoted as follows: REPUBLIC OF THE PHILIPPINES CITY OF CEBU Office of the Mayor A p r i l 1 4 , 1 9 6 4 Mr. Deogracias A. Regis, Jr. Driver, Cebu Police Department Cebu City Sir: There being no more need for your service as Driver in the Cebu Police Department, your provisional appointment thereto is hereby terminated effective April 16, 1964. Please turn over any government property that may have been issued to you to the proper property custodian and have yourself cleared of any accountability during the period of your service. R e s p e c t f u l l y ,

B y o r d e r o f t h e M a y o r : ( S G D . ) V i c e n t e V . P a c i f i c o S e c r e t

a r y t o t h e M a y o r 6. Petitioner is a civil service eligible, having passed the patrolman and/or detective (qualified) civil service examination on July 20, 1963 with a rating of 76.85% as shown in the attached copy of "Report of Ratings" marked Annex "B"; 7. Petitioner is a fourth year student in the College of Liberal Arts in the University of the Visayas as shown by the attached certification marked Annex "C"; 8. The position of the petitioner, after his removal, was filled up by the respondent City Mayor with the appointment of Eduardo Gabiana, a non-civil service eligible as shown in his appointment hereto attached and marked Annex "D"; 9. On August 20, 1964, after his removal, the petitioner addressed similarly worded letters to the President of the Philippines and the Civil Service Commissioner, hereto attached as Annexes "E" and "E-1", protesting and appealing his unlawful removal and demanding his reinstatement. Under date of September 4, 1964, the Executive Secretary to the President indorsed the above-mentioned letter to the Commissioner of Civil Service, as shown in the first indorsement hereto attached as Annex "E-2". Since the filing of the instant action, the petitioner has not been afforded the relief of reinstatement by either the Office of the President of the Philippines or by the Civil Service Commissioner. Parties, however, will submit evidence to establish facts not herein stipulated. Cebu City, August 20, 1965. (SGD.) FERNANDO S. RUIZ (SGD.) JOSE BATIQUIN (T) FERNANDO S. RUIZ (T) JOSE BATIQUIN Attorney for the Assistant City Fiscal Petitioner Counsel for the 2nd Floor, Aboitiz Respondents Building Cebu City

Magallanes corner Jakosalem Cebu City

II. Per additional evidence formally adduced during the hearing:

10. Petitioner received his civil service eligibility for patrolman-detective on 8 March 1964, a photostatic of which was filed, for record purposes, with the clerk in charge of the record section of the CPD on 12 March 1964 (Exhs. "F", "F-1"); his efficiency rating is 88%, the highest among the drivers of the CPD he is the only civil service eligible among the drivers in the CPD; after his ouster, the City of Cebu created positions of drivers; and he attributed his ouster to politics, alleging that he was being suspected as a supporter of the faction of then Congressman Durano, the political rival of respondent Mayor Osmea; 4 and 11. The records of the Regional Office of the Civil Service Commission in Cebu City do not show that petitioner possesses any civil service eligibility at the time he was 5 appointed as driver.

This Court further observes that the actions of the Civil Service Commission on the appointments of petitioner admitted in the Stipulation of Facts and attached thereto as Annexes "A", "A-1", "A-2" and "A-3" were as follows: 1. Appointment dated 8 January 1958 Noted as temporary pending receipt of the required medical certificate, subject to availability of funds and provided that there is no pending administrative or criminal case against appointee and that the separation of the former incumbent is in order; 2. Appointment dated 8 January 1960 Approved under Section 24(c) or R.A. No. 2260 as an exception to Section 256 of the Revised Administrative Code, and subject to availability of funds; 3. Appointment dated 21 December 1961 Approved under Section 24(c) of R.A. No. 2260, subject to availability of funds and as exceptional case under Sec. 256 of the Revised Administrative Code, provided there is no pending administrative or criminal case against the appointee and provided that his efficiency rating for the semester ending 6-30-61 is not below 85%; and 4. Appointment dated 7 November 1963Approved under Section 24(c) of R.A. No. 2260, subject to availability of funds and subject to Section 20 of R.A. No. 2260, provided there is no pending administrative or criminal case against the appointee. The last three appointments were for salary adjustments.

In its Decision of 28 December 1965, the court below dismissed the petition on the ground that petitioner's questioned appointment was temporary in nature and, therefore, terminable at the pleasure of the appointing power. Expounding on this, it says:
xxx xxx xxx As for the first issue the answer is that his status at the time of his ouster on April 16, 1964 was that of temporary driver of the CPD. His appointments on January 8, 1958, January 8, 1960, December 21, 1961 and on November 7, 1963 were all temporary in nature. It is true that on March 5, 1964 the Civil Service Commission certified to his having passed the patrolman/detective civil service examination with a rating of 75.85%, but said examination is not intended for or appropriate to, the position of driver; hence, it did not convert his temporary status of driver to a permanent one. (Sec. 8, Rule IV, Civil Service Rules.) Then again, the mere certification of the Civil Service Commission of his civil service eligibility for patrolman/detective did not amount to his appointment. The appointing power, the City Mayor, has the right of choice which he may exercise freely according to his judgment, deciding for himself who is best qualified for any competitive position in the Civil Service. The Civil Service Commission does not ensure any appointment; it only certifies an eligible to be possessed of the qualification, as required for a position classified under its rules. (Jimenez vs. General Francisco, etc., et al., G.R. No. L-9699, Feb. 28, 1957; Vol. 53 O.G. Aug. 15, 1957, p. 4804.) The appointment of the petitioner being temporary or provisional in nature, the duration of temporary appointment should not exceed six months. (Sec. 24, Rep. Act 226.) After the expiration of said period, petitioner could have been removed at will by the appointment power; his continuance thereafter as a temporary employee was only an extension of grace. (Jimenez vs. General Francisco, etc., et al., supra.) Temporary appointment is similar to one made in an acting capacity, the essence of which lies in its temporary character and its terminability at pleasure by the appointing power. And one who bears such an appointment cannot complain if it is terminated at a moment's notice. (Cuadra vs. Cordova, G.R. No. L-11602, April 21, 1958; Vol. 54 O.G. 6 Dec. 8, 1958, p. 8063.)

Hence, this appeal. In his Brief petitioner assigns only one error: The court a quo erred in dismissing his petition. 7 In support thereof he argues that his removal on the ground that there was "no more need for your service" was not real and true but a mere pretext, for after his ouster one Eduardo Gabiana, a non-civil service eligible, was appointed to the vacated position and in the succeeding budget of the City of Cebu more positions of driver were created; at the time of his ouster he was already a civil service eligible, having passed the patrolman-detective (qualifying) civil service examination given in July of 1963, and respondents knew of this fact. Moreover, said removal was not for cause, and it was done without due process in violation of Section 32 of R.A. No. 2260 which provides that 44 no officer or employee in the civil service shall be removed or suspended except for cause provided by law and after due process."

Petitioner further argues that his last appointment of 7 November 1963 was approved under Section 24(c) of R.A. No. 2260; therefore, it was a provisional and not a temporary appointment as erroneously classified by the court a quo. Republic Act No. 2260 makes a distinction between provisional and temporary appointments. The former is governed by Section 24(c) while the latter is covered by Section 24(d) thereof. According to him, his appointment was provisional because at the time it was extended he was not yet a civil service eligible. He was still awaiting for the results of the examination for patrolman-detective (qualifying) given by the Civil Service Commission in July of 1963; however, he received his report of rating on 8 March 1963 indicating that he passed it; consequently, instead of dismissing him, the City Mayor should have extended to him a permanent appointment inasmuch as he had already become a civil service eligible. In short, he claims that his patrolman-detective eligibility is appropriate to his position considering the nature of his office prior to his removal which authorized him to wear the uniform and badge of a regular member of the Cebu Police Department, carry an official firearm, wear an ID as a regular member of the city police, and to make arrests. Finally, petitioner submits that as member of the Cebu City Police at the time of his removal, his separation from the service could only be done under R.A. No. 557 under which the City Mayor can only prefer charges but cannot remove. Respondents filed their Brief after the expiration of the reglementary period. Upon motion of petitioner dated 29 March 1967 8 this Court ordered their brief stricken off the record. 9 We agree with the petitioner that the trial court erred in holding that his appointment is temporary in nature. Obviously, the trial court failed to appreciate the clear distinction between a temporary appointment and a provisional appointment. It had either confused one for the other or considered one as synonymous with the other as shown in the opening sentence of the first paragraph of the portions of the decision hereinbefore quoted wherein it categorized the appointment of petitioner as " temporary or provisional in nature." As correctly stated by petitioner, provisional appointments are governed by paragraph (c) of Section 24 of R.A. No. 2260 while temporary appointments are covered by paragraph (d) of said Section. For convenience We quote both paragraphs:
xxx xxx xxx (c) Provisional appointments A provisional appointment may be issued upon prior authorization of the Commissioner in accordance with the provisions of the Act and the rules and standards promulgated in pursuance thereto to a person who has not qualified in an appropriate examination but who otherwise meets the requirements for appointment to a regular position in the competitive service, whenever a vacancy occurs and the filling thereof is necessary in the interest of the service and there is no appropriate register of eligibles at the time of appointment.

(d) Temporary appointment. A person may receive a temporary appointment to a position needed only for a limited period not exceeding six months, provided that a preference in filling such position be given to persons on appropriate eligible lists.

In Festejo vs. Barreras, et al., L-25074, 27 December 1969, 10 We made a distinction between a provisional appointment and temporary appointment thus:
xxx xxx xxx There is no basis nor logic in appellants' contention that there is no difference between a temporary appointment under Section 24(d) of the Civil Service Act which reads thus: Temporary Appointment. A person may receive a temporary appointment to a position needed only for a limited period not exceeding six months, provided that preference in filing such position be given to persons on appropriate eligible lists. and a provisional appointment under Section 24(c) which says: Provincial appointment. A provisional appointment may be issued upon the prior authorization of the Commissioner in accordance with the provisions of this Act and the rules and standards promulgated in pursuance thereto to a person who has not qualified in an appropriate examination but who otherwise meets the requirements for appointment to a regular position in the competitive service, whenever a vacancy occurs and the filling thereof is necessary in the interest of the service and there is no appropriate register of eligibles at the time of appointment. According to appellants, "while they may be different in the degree of permanence, in that temporary appointments are generally for and within specified periods of time, their nature as being subject to termination by the appointing power remains the same." Such contention petition is untenable. Even from a cursory reading of these two provisions, one can readily see that each of them contemplates an entirely different situation from the other. Indeed, as pointed out by His Honor, the trial judge, it is contrary to the ordinary rules of legal hermeneutics to assume that the lawmakers intended these two separate provisions in a seemingly single enumeration of categories of appointments to have the same import or significance. Whereas a temporary appointment is designed to fill "a position needed only for a limited period not exceeding six months, a provisional appointment, on the other hand, is intended for the contingency that "a vacancy occurs and the filling thereof is necessary in the interest of the service and there is no appropriate register of eligibles at the time of appointment." In other words, the reason for extending a provisional appointment is not because there is an occasional work or job to be done which is expected to be finished in not more than six months but because the interest of the service requires that certain work be done or functions be performed by a regular employee, only that there is no one with appropriate eligibility, who can be appointed to do it, hence any other eligible may be appointed to perform such work or functions in the meanwhile that a suitable eligible does not qualify for the position. This is clearly implied by the mandate of the provision that a provisional appointment may be extended only to "a person who has not qualified in an appropriate examination but who otherwise meets the requirements for appointment to a regular position in the competitive service," meaning one who must anyway be a civil service eligible. On the other hand, again, in the case of a temporary appointment, all that

the law enjoins is that "preference in filling such position be given to persons on appropriate eligible lists." And merely giving preference, of course, presupposes that even a non-eligible may be appointed. As a matter of fact, under this provision, even if the appointee has the required civil service eligibility, his appointment is still temporary, simply because such is the nature of the work to be done. The decisions cited by appellants are not in point. They all refer to temporary appointments as such. None of them involves a provisional appointment like the one herein in question.

In Ata, et al. vs. Namocatcat, et al., L-39703, 30 October 1972, 11 We further elaborated on the distinction:
. . . A provisional appointment is one which may be issued, upon the prior authorization of the Commissioner of Civil Service in accordance with the provisions of the Civil Service Law and the rules and standards promulgated thereunder, to a person who has not qualified in an appropriate examination but who otherwise meets the requirements for appointment to a regular position in the competitive service, whenever a vacancy occurs and the filling thereof is necessary in the interest of the service and there is no appropriate register of eligibles at the time of appointment (Sec. 24(c), supra). On the other hand, a temporary appointment given to a non-civil service eligible is without a definite tenure of office and is dependent upon the pleasure of the appointing power." (Citing Cuadra vs. Cordova, 103 Phil. 391; Pinullar vs. President of the Senate, 104 Phil. 131, 135).

As early as Piero, et al. vs. Hechanova, et al., L-22562, 22 October 1966, 12 We held:
. . . Even in the case of those holding provisional or probationary appointments . . . the invalidity thereof can not be declared unless it is first shown that there were appropriate eligibles at the time they were appointed . . .

In Ferrer vs. Hechanova, L-24416, 25 January 1967, 13 We held:

. . . A provisional appointment is good only until replacement by a civil service eligible and in no case beyond thirty (30) days from the date of receipt by the appointing officer of the certificate of eligibility (Sec. 24(c), R.A. 2260; Rule VI, Secs. 13 and 14, Revised Civil Service Rules; Piero vs. Hechanova, supra).

In Ramos vs. Subido, L-26090, September 6, 1967, 14 We ruled:

The position in question is under the classified service; Ramos accepted Ms latest appointment thereto, dated July 1, 1963, without having the requisite appropriate civil service eligibility for said position. Accordingly, his appointment can only be deemed provisional and good only until replacement by one holding such appropriate eligibility, in no case to extend more than thirty days from receipt of the appointing officer of the list of eligibles (Ferrer vs. Hechanova, L-24418, January 25, 1967).

In Aguilar vs. Hon. Augusto L. Valencia, et al., L-30396, 30 July 1971, 15 We affirmed the decision of the trial court holding that provisional appointments under Sec. 24(c) of R.A. No. 2260 can only by terminated thirty days after receipt by the appointing power of a list of eligibles from the Civil Service Commission.

In Lamata, et al. vs. Cusi, et al., L-32619, 31 October 1972, 16 We reiterated our rulings in Piero vs. Hechanova, Ferrer vs. Hechanova, and Ramos vs. Subido. Accordingly, since there was no certificate of civil service eligibility received by respondent City Mayor, the provisional appointment of petitioner remained valid and subsisting. Prior to such receipt petitioner may only be removed for cause as provided by law under Section 32 of R.A. No. 2260. That there was "no more need" for his service was not a valid and lawful cause and even if it were so, it could not be availed of in this case since, as admitted by the parties, immediately after the ouster a non-civil service eligible was appointed to replace petitioner and more driver positions were included in the succeeding budget of the City of Cebu. These facts negated the pretended basis for the dismissal. The real hidden cause was not that service of the nature and character rendered by petitioner was no longer needed, but that petitioner had become unacceptable to the appointing authority. Petitioner testified that his removal was politically motivated, he was suspected of supporting the faction of Mr. Durano, a political enemy of respondent City Mayor. We are not inclined to give full faith and credit to this testimony considering that this point was not even alleged in the petition. We agree, however, with the court below that the patrolman-detective civil service eligibility of petitioner "is not intended for or appropriate to the position of driver; hence, it did not convert his temporary [should be, correctly, provisional] appointment of driver to a permanent one (Sec. 8, Rule IV, Civil Service Rules)." Section 8, Rule IV of the Civil Service Rules provides:
xxx xxx xxx Except as otherwise provided by law, eligibility in a certain examination shall serve as qualification for appointment only to the position or positions for which examination was held and no horizontal or vertical conversion of eligibility or examination rating shall be allowed. xxx xxx xxx

In Police Commission vs. Lood, et al., L-34637, 24 February 1984, 17 We ruled:

Under the civil service law then in force, the fact that private respondent subsequently became a civil service eligible did not ipso facto render permanent the nature of his temporary appointment as to make the question moot and academic.

Although this case refers to a temporary appointment, the rule laid down equally applies to a provisional appointment. This matter, however, had been subsequently categorically resolved in favor of holders of provisional appointments by R.A. No. 6040, which took effect on 4 August 1969. Section 18 thereof provides:

. . . all provisional appointments made or appointments approved by the Civil Service Commission under Section 24(C) of Republic Act Numbered Two thousand two hundred sixty prior to the approval of this Act shall automatically be permanent under the provisions of Section twenty-four (b) thereof as amended by this Act, subject to the provisions of Section 16(h) of said Act as herein amended. (emphasis supplied).

Pursuant thereto, petitioner's provisional appointment of 7 November 1963 automatically became permanent effective 4 August 1969. We therefore rule that petitioner's dismissal was illegal and that he should be reinstated. He should also be granted back salaries. However, the award for back salaries should not be from the date of his dismissal until reinstatement. In similar cases, We limited the award for a period of five (5) years. 18 In Ginson vs. Municipality of Murcia, et al., We ruled:
Considering however, the lapse of time spanning almost twenty years since this controversy rose, and considering the probability that the petitioner might have, in the interim, acquired a new employment, we are constrained to grant her the payment of back salaries equivalent to five (5) years without deduction or qualification. ( Citing Laganapan vs. Asedillo, supra). We likewise order her reinstatement, subject to the condition that she has not obtained any other employment in Murcia municipal dentist or any position for which she is qualified by reason of civil service eligibility and subject to the requisites of age and physical fitness. . . .

As to who of the respondents should pay the back salaries, We rule that only respondent City of Cebu should be liable therefor. Respondent City of Cebu did not oppose the dismissal of petitioner and the appointment in his stead of another whose salaries it thereafter paid. All respondents were represented by the Assistant City Fiscal of Cebu City and interposed the same defenses. 19 Moreover, after respondent Mayor Osmea vacated his office his successor, Carlos J. Cuizon, without the objection on the part of the City of Cebu, filed a manifestation in the court below to the effect that he adopted the position of his predecessor, Mayor Osmea, in respect to the course of action taken against petitioner 20 In short, respondent City of Cebu confirmed or ratified the action of the Mayor. IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered REVERSING the Decision appealed from the ORDERING the respondent City of Cebu to (a) reinstate petitioner, subject to the condition that he has not obtained any other employment, to his position under his appointment of 7 November 1963, or to any position of equivalent rank, or for which he is qualified by reason of civil service eligibility and subject to the requisites of age and physical fitness, (b) pay petitioner back salaries, at the rate last received by him, for a period of five (5) years without qualification and deduction and with interest at the legal rate from the date of his illegal dismissal until the same shall have been fully paid, and (c) pay the costs.

SO ORDERED. 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:p 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. 1 Claiming to have the rank of undersecretary, he says he 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, 2 where we observed that "to constitute a complete and operative 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. xxx xxx xxx (Sgd.) ELMOR D. JURIDI CO Executi ve 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. 4 The person named in an acting capacity accepts the 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. 5 This is allowed by the

Constitution only when it is for cause as 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 6 need the show that the termination is for cause.

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 7 is not applicable because the facts of that case are different. The petitioner in Luego 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, 8 PalmaFernandez vs. De la Paz, 9 and Dario vs. Mison, 10 are 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. G.R. No. 93711 February 25, 1991 DR. EMILY M. MAROHOMBSAR, petitioner, vs. AHMAD E. ALONTO, JR., in his capacity as President of the Mindanao State University, and CORAZON BATARA, respondents. Pedro Q. Quadra for petitioner.

Adnan V. Alonto for respondent Ahmad E. Alonto, Jr.

GUTIERREZ, JR., J.:p The issue in this case is whether or not petitioner Dr. Emily M. Marohombsar, who was appointed Acting Vice-Chancellor for Academic Affairs of the Mindanao State University (MSU) Marawi Campus by the respondent President may be removed from office even without cause. On March 22, 1988, the petitioner was designated as officer-in-charge of the Office of the Vice-Chancellor for Academic Affairs (OVCAA) of MSU in a concurrent capacity with her position then as Vice-President for External Studies. On January 2, 1989, the Office of the Vice-President for External Studies was merged with the OVCAA and, as such, the functions of the former were to be exercised by the latter. The petitioner was appointed acting Vice-Chancellor for Academic Affairs on the same day. The Board of Regents of the MSU, on May 16, 1989, approved her appointment as acting Vice-Chancellor for Academic Affairs. On May 14, 1990, respondent Ahmad E. Alonto, MSU President, wrote the petitioner informing her that he has decided to tap the petitioner's talent for the MSU system as Vice-President for Academic Affairs which position is under the administrative staff of the respondent MSU President. The petitioner, on the same date, answered that she cannot accept the position since she has already started several projects in the OVCAA which she wants to see through. The respondent President, on May 16, 1990, designated Professor Macacuna Moslem as Vice-Chancellor for Academic Affairs but the latter did not accept the designation. On May 28, 1990, the respondent President issued Special Order No. 158-P designating Professor Corazon Batara, the other respondent in this case, as Officer-in-Charge of the OVCAA. The petitioner now comes to this Court assailing her removal as Vice-Chancellor by the respondent President. On June 21, 1990, the Court issued a temporary restraining order directing the respondents to cease and desist from enforcing and/or implementing Special Order No. 159-P and from interfering and/or preventing the petitioner from performing her duties as Vice-Chancellor for Academic Affairs of the MSU, Marawi Campus. On November 19, 1990, the petitioner filed a motion to cite respondent Alonto for contempt, alleging that said respondent, in violation of the temporary restraining order issued by this Court submitted Special Order No. 158-P to the MSU Board of Regents for approval.

The petitioner asserts that her appointment being permanent, she can be removed only after hearing and for cause. Resolution No. 59, S. 1989, passed by the MSU Board of Regents on May 16, 1989, reads as follows:
RESOLVED, that upon recommendation of the President of the University of the Executive Committee of the Board of Regents the following Special Orders as amended/corrected are hereby confirmed: A. DESIGNATIONS A.1 Major designations xxx xxx xxx 9) Special Order No. 10-P, S. 1989, designating Prof. Emily M. Marohombsar as Acting Vice Chancellor for Academic Affairs, MSU Marawi Campus, with an honorarium in accordance with the approved policies of the University, subject to accounting and auditing rules and regulations, effective January 2, 1989 and shall remain in force until revoked or amended by competent authority. (Rollo, pp. 5354; Emphasis supplied)

It may be noted that the special order confirmed by the Board of Regents specifically designated the petitioner as Acting Vice-Chancellor for Academic Affairs. A bona fide appointment in an acting capacity is essentially temporary and revocable in character and the holder of such appointment may be removed anytime even without hearing or cause. (Austria v. Amante, 79 Phil. 780 [1948]; Castro v. Solidum, 97 Phil. 278 [1955]; Mendez v. Ganzon, 101 Phil. 48 [1957]; Valer v. Briones, 9 SCRA 596 [1963]; Abana v. Aguipo, 15 SCRA 604 [1965]; Hojilla v. Marilao, 13 SCRA 293 [1965]. A person who accepts an appointment in an acting capacity extended and received without any protest or reservation and who acts thereunder for a considerable time cannot later be heard to say that the appointment was, in reality, permanent and therefore there can be no removal except for cause. (See Cabiling v. Pabualan, 14 SCRA 274 [1965]) There are circumstances, however, which rule against the routine or blind application of the principle which governs acting appointments to this case. The essence of an acting appointment is its temporary nature. It is a stop gap measure intended to fill an office for a limited time until a permanent appointment is extended or a new appointee is chosen. (Austria v. Amante, supra; Castro v. Solidum, supra; and Valer v. Briones, supra) The nature of an acting appointment limits not only the claims of the appointee to a lengthy tenure but also defines the authority of the appointing power. A public officer appointed in an acting capacity cannot claim that the appointment shall in time ripen into a permanent one. However, neither can the appointing power use the principle of temporary appointments to evade or avoid the security of tenure principle in the Constitution and the Civil Service Law. This is similar to the rule that the head of an

office cannot arbitrarily convert permanent positions to primarily confidential items so that he can more freely fire and hire or rehire subordinates at his personal discretion. It is the nature of the functions attached to a position, not the nomenclature or title given by the appointing authority which determines its primarily confidential nature. (Piero v. Hechanova, 18 SCRA 417 [1966]) For the same reason, the Court may inquire into the true nature of an "acting" appointment to determine whether or not it is used as a device to circumvent the security of tenure principle. In this case, the intent to make the petitioner serve at the pleasure of the respondent MSU President is obvious. The petitioner is a career official of MSU for over 27 years. She was Vice-President for External Studies since 1982. On March 22, 1988, she was given an additional assignment as Officer-in-Charge of the Office of the Vice-Chancellor for Academic Affairs concurrently with the permanent position as Vice-President for External Studies. About nine months later, the Vice-Presidency for External Studies was "merged" with the Vice-Chancellorship for Academic Affairs. At the same time, the petitioner was appointed acting Vice-Chancellor for Academic Affairs. The effect, therefore, was to abolish the petitioner's permanent office and give her a temporary appointment in the supposedly new office which replaced or absorbed the former office. Another result was the loss by the petitioner of her permanent status. There are reasons which indicate that these maneuverings by the respondent President cannot be characterized as bona fide. Section 40.5 (paragraph 22) Article 4 of the Code of Governance of the MSU provides:
Personnel Matters. In accordance with the policies and rules prescribed by the Board, the specific powers of the President include the following (delegated powers) xxx xxx xxx 22. Designation of any Dean, Director, or Department Chairman in acting capacity or any Officer-in-Charge for any of these positions, for a period of less than one year, such designation being made without additional compensation for the position designated except the honorarium attached to said position; PROVIDED, That the President shall report the designation in the next regular meeting after winch the designation shall be null and void unless otherwise renewed.

The power to designate is vested in the MSU President. The designation must be less than one year. It must be reported to the Board of Regents at the next regular meeting. After the meeting, another designation must be issued if no permanent appointment was made. The earlier designation becomes void as the Board is expected to fill the item permanently, not merely leaving it temporarily occupied. On the other hand, the power to appoint is vested in the Board of Regents as follows:

Sec. 6. The Board of Regents shall have the following powers and duties, in addition to its general powers of administration and the exercise of the power of the corporation; xxx xxx xxx (e) To appoint, on the recommendation of the President of the University, professor, instructors, lecturers and other employees of the University. . . . MSU Charter, RA 1387

If the President merely designates, the Board of Regents does not confirm the designation. Since it is only for the information of the Board, the President's action should be merely "noted." When the Board of Regents confirmed the appointment of the petitioner on May 16, 1989, it was acting on an ad interim appointment effected by the President. No other interpretation can be validly made. If it was a mere designation, it needs no confirmation. The fact that confirmation was needed shows that it is an ad interim one. An ad interim appointment is one made during the time when the appointing or confirming body is not in session and there is an existing clear and present urgency caused by an impending obstruction or paralyzation of the functions assigned to the office if no immediate appointment is made. (Rodriguez, Jr. v. Quirino, 9 SCRA 284 [1963]) When the Vice-Presidency for External Studies was abolished and its functions were merged with the Vice-Chancellorship for Academic Affairs, both the security of tenure of the occupant and the needs of the new office called for the ad interim appointment. The respondent cannot use the device of an ambiguous designation to go around the security of tenure principle. Under the MSU Code, a designation requires a fixed period of not less than one year. The appointment given to the petitioner was indefinite. She would serve at the pleasure of the MSU President who is not even the head of the institution because the head is the Board of Regents. The intent to convert permanent items into temporary ones is apparent. The petitioner states that the purpose "is to hold the sword of Damocles hanging over the head of all MSU employees and officers." (Rollo, p. 75) The Board of Regents cooperated in the plan. Practically, all top officers below the President were converted into positions where the occupants serve at the pleasure of the President and presumably, the Board of Regents. Thus, at the May 16, 1989 Board of Regents' meeting at the Army and Navy Club alongside the Luneta in Manila, the following acting appointments were submitted for approval or confirmation:
1. Special Order No. 03-P, S. 1989, designating Atty. Tocod D. Macaraya, Sr. as Acting Executive Vice-President . . . ; 2. Special Order No. 04-P, S. 1989, designating Dr. Macaurog B. Derogongan as Acting Vice President for Academic Affairs . . . ;

3. Special Order No. 05-P, S. 1989, designating D. Corazon Batara as Acting Assistant Vice-President for Academic Affairs . . . ; 4. Special Order No. 113-P, S. 1989, designating D. Milandre S. Rusgal as Acting Vice President for Planning and Development . . . ; 5. Special Order No. 109-P, S. 1989, designating Prof. Guimba Poingan as Acting Assistant Vice President for Planning and Development . . . ; 6. Special Order No. 60-P, S. 1989, designating Atty. Concordio Baguio as Officer-inCharge of the Office of the Vice-President for Administration and Finance . . . ; 7. Special Order No. 07-P, S. 1989, designating Prof. Talib R. Muti as Acting Assistant Vice President for Administration and Finance . . . ; 8. Special Order No. 134-P, S. 1989, designating Prof. Emily M. Marohombsar as Acting Vice-Chancellor for Academic Affairs, MSU Marawi Campus . . . ; 10. Special Order No. 01-P, S. 1989, designating Atty. Abdul S. Aguam as Acting Vice Chancellor for Administration and Finance . . . ; 11. Special Order No. 11-P, S. 1989, designating Dr. Cosain Derico as Acting Vice Chancellor for Research and Extension . . . (Rollo, pp. 117-118)

The respondents argue that the permanent item of the petitioner is Professor VI. They state:
xxx xxx xxx Finally, petitioner has not refuted the fact that the position she actually occupies is that of Professor VI. This is precisely the reason why petitioner's designation as Acting VCAA can not be deemed a regular or permanent appointment because, if it were so, the anomalous situation of one permanently appointed to two public positions simultaneously would arise. (Rollo, p. 130)

This argument has no merit. As early as 1963, this Court ruled in Tapales v. President and Board of Regents of the University of the Philippines (7 SCRA 553 [1963]) that UP Deans and Directors enjoy security of tenure and any attempt to remove them by limiting their terms of office from permanent to a five (5) year term is unconstitutional. Deans and Directors are selected from faculty members. An appointment as Professor is also needed for salary rating purposes but does not detract from the permanent nature of the administrative position (id., at pp. 554 and 556). The fact that Professor Tapales was given another appointment as Director of the U.P. Conservatory of Music does not mean that the second appointment is only temporary in nature. In the present case, the fact that Professor Marohombsar has a permanent appointment as Professor does not detract from the permanent nature of her present appointment as Vice-Chancellor, especially since the same was duly confirmed by the MSU Board of Regents. The only difference

is that her position as Vice-Chancellor has a fixed term while that of Professor Tapales was until he retired or resigned. The attempt of the respondent to solve the problem by placing the petitioner in his own administrative staff as Vice-President for Academic Affairs cannot be countenanced. The petitioner served in this capacity from 1975 to 1978 after which she became VicePresident for External Studies in 1982. The proffered position is not only less desirable to the petitioner but she expressly rejected it, preferring to stay in her present position. She thanked the respondent but stated she would not be effective in the new position while in the OVCAA she could complete a number of projects and programs. (Rollo, p. 21) The correctness of the petitioner's stand is explained by this Court in Sta. Maria v. Lopez (31 SCRA 673 [1970]). There are transfers which appear to be promotions or lateral movements but are in truth demotions. There is no showing that the interest of the service would be served if the proffered appointment would be forced on her. No less than the Secretary of Education, Culture and Sports, Secretary Isidro D. Cario opined, and the Court agrees with him, that the petitioner may not be removed from the disputed office by the MSU President without the authority of the Board. And, as correctly stated by the Secretary, Special Order No. 158-P issued by the respondent president designating respondent Batara as officer in-charge of the same office was unapproved by the Board, hence, the special order cannot revoke, or could not have revoked the designation of the petitioner as acting Vice-Chancellor. (Annex A, Petitioner's Memorandum, Rollo, pp. 119-120) The respondent MSU President, perhaps realizing the vulnerability of his action, submitted Special Order No. 158-P to the Board of Regents for approval. But such submission was made after the Court already issued its temporary restraining order and consequently, his action constituted contempt of Court. Considering, however, that the respondent appears to have acted in the honest albeit mistaken belief that MSU would progress faster if the executive officers serve at his pleasure and discretion, the Court rules that declaring him in contempt would be too harsh a remedy. The respondent President is, nevertheless, admonished for his action. When this Court issues a restraining order, it must be obeyed. WHEREFORE, the petition is GRANTED. The petitioner shall remain as the lawful occupant in a permanent capacity of the position of Vice-Chancellor for Academic Affairs of MSU Marawi until the end of her three-year term or her tenure is otherwise lawfully terminated. The motion to cite respondent Alonto for contempt is DENIED but the respondent is admonished to faithfully heed court orders in the future. The Temporary Restraining Order issued by this Court on June 21, 1990 is made PERMANENT. SO ORDERED. G.R. No. 101251 November 5, 1992

ELISEO A. SINON, petitioner, vs. CIVIL SERVICE COMMISSION, DEPARTMENT OF AGRICULTUREREORGANIZATION APPEALS BOARD AND JUANA BANAN, respondents.

CAMPOS, JR., J.: This petition for certiorari seeks to annul the following Resolutions of the public respondents Civil Service Commission (the "CSC") * and Department of Agriculture Reorganization Appeals Board (the "DARAB"), ** to wit:
1. Resolution No. 97 dated August 23, 1989, issued by respondent DARAB which revoked petitioner's permanent appointment as Municipal Agriculture Officer (MAO) and appointed, in his stead, private respondent Juana Banan ( Rollo 17); 2. Resolution dated February 8, 1991 issued by the respondent CSC affirming the aforementioned Resolution of respondent DARAB (Rollo 22); 3. Resolution dated July 11, 1991 issued by the respondent CSC which denied petitioner's motion for the reconsideration of the respondent Commission's Resolution 1 dated February 8, 1991.

The antecedent facts are as follows: Prior to the reorganization of the then Minister of Agriculture and Food (the "MAF"), the private respondent Juana Banan was the incumbent Municipal Agricultural Officer (MAO) of the aforesaid Minister in Region II, Cagayan, while the petitioner Eliseo Sinon occupied the position of Fisheries Extension Specialist (FES) II in the Bureau of Fisheries and Aquatic Resources (BFAR) in the same region. However, the reorganization of the MAF into the Department of Agriculture (the "DA"), with the issuance of Executive Order No. 116 dated 30 January 1987, called for the evaluation of the following employees for twenty nine position of MAO in Region II, Cagayan. The list as prepared by the Placement Committee included the herein petitioner Sinon but excluded the respondent Banan:
1. Binoya, Vicente 76.20% 2. Cabana, Isidro 75.01% 3. Sebastian, Alice 74.18% 4. Zingapan, Benjamin 70.73% 5. Guzman, Wilhemina de la P. 70.50% 6. Gervacio, Agnes 69.86%

7. Somera, Hilario S. 68.13% 8. Tolentino, Julian R. 67.64% 9. Guillermo, Pedro 67.22% 10. Tambio, Rodolfo 67.00% 11. Aquino, Martina 66.94% 12. Bassig, Pio P. 66.84% 13. Rumpon, Danilo P. 65.61% 14. Zareno, Bernardo 65.57% 15. Madrid, Angel S. 65.57% 16. Callangan, Napoleon 65.45% 17. Fiesta, Felicisimo 65.29% 18. Alvarez, Benefranco 64.99% 19. Baggayan, Samuel O. 64.42% 20. Umbay, Pedro T. 64.01% 21. De la Cruz, Florencio M. 62.07% 22. Leonador, Ernesto T. 61.88% 23. Miguel, Jose 61.86% 24. Berlan, Herminia C. 61.76% 25. Soliman, Clemente 61.52% 26. Llopis, Lino 61.47% 27. Baliuag, Felicidad 61.39% 28. Aresta, Leticia 60.67% 29. Sinon, Eliseo A. 60.66% (Emphasis supplied)
2

Thus, respondents Banan filed an appeal with the DARAB for re-evaluation of the qualification of all those included in the aforementioned list made by the Placement Committee. On August 23, 1989, the DARAB released Resolution No. 97 in which the ranking for 29 MAO prepared by the Placement Committee was re-evaluated as follows:
1. Binoya, Vicente 76.20% 2. Cabana, Isidro 75.01% 3. Sebastian, Alice 72.18% 4. Zingapan, Benjamin 70.73% 5. Guzman, Wilhemina de la P. 70.50% 6. Gervacio, Agnes 70.04% 7. Somera, Hilario S. 68.13% 8. Tolentino, Julian Jr. 67.22% 9. Guillermo, Pedro 67.22% 10. Tambio, Rodolfo 67.00% 11. Aquino, Martina D. 66.94% 12. Bassig, Pio P. 66.84% 13. Rumpon, Danilo P. 65.61% 14. Madrid, Angel 65.57% 15. Callangan, Napoleon 65.45% 16. Fiesta, Felicisimo 65.29% 17. Alvarez, Benefranco 64.99% 18. Baggayan, Samuel O. 64.42% 19. Umbay, Pedro T. 64.01% 20. De la Cruz, Florencio M. 62.07% 21. Leonador, Ernesto T. 61.88% 22. Miguel, Jose L. 61.86%

23. Berlan, Herminia C. 61.76% 24. Soliman, Clemente 61.52% 25. Zareno, Bernardo 61.50% 26. Llopis, Lino 61.47% 27. Baliuag, Felicidad 61.39% 28. Aresta, Leticia 60.67% 29. Banan, Juana 59.32% (Emphasis supplied)
2

In this re-evaluation, petitioner Sinon was displaced by the respondent Banan and this same resolution was duly approved by the Secretary of the Department of Agriculture, Carlos G. Dominguez, who also affixed his signature on the same date. However, on August 30, 1988, Sinon received an appointment as MAO for Region II in Cagayan as approved by Regional Director Gumersindo D. Lasam on the basis of the first evaluation made by the Placement Committee. Thus, Sinon filed an appeal docketed as Civil Service Case No. 573 on November 22, 1989 to the CSC. This appeal was granted mainly for two reasons: first, the respondent DARAB failed to file its Comment within the period required; and second, the evaluation of the qualification of the employees is a question of fact which the appointing authority or the Placement Committee assisting him is in a better position to determine. Hence, the Resolution dated 28 February 1989 of the DARAB was set aside. 4 On March 19, 1990, Banan filed a Motion for Reconsideration in which she pitted her qualifications against Sinon for the last slot in the 29 available MAO positions. At the same time, she pointed out that to allow the findings of the Placement Committee to supersede the DARAB resolution which the Secretary of Agriculture had approved would be tantamount to giving precedence to the Placement Committee over the head of the agency. Finally, on February 8, 1991, CSC, after reviewing the Comment filed by the DARAB which had not been considered earlier in the Civil Service Case No. 573, the CSC granted respondent Banan's Motion for Reconsideration and gave due course to her appointment by the DARAB. On March 21, 1991, Sinon filed a Motion for Reconsideration of the February 8, 1991 Resolution which however was denied by the CSC in its assailed Resolution dated July 11, 1991. According to the respondent CSC:

Mr. Sinon strongly argued that the findings of the Placement Committee on the qualifications of the parties should be accorded deference and greater weight over that of the RAB. Under the Placement Committee's evaluation, Mr. Sinon garnered 60.66 while Ms. Juana Banan earned 57.32 after assessing the contending parties qualification in education, relevant experience, eligibility and other factors. Following the request of several parties for reevaluation, the RAB in their decision gave Mr. Sinon 57.66 while Ms. Banan obtained 59.32. Seemingly the findings of the two bodies are in conflict. Mr. Sinon argues that the findings of the Placement Committee should prevail since it is specially mandated by RA 6656.

We disagree. The Placement Committee's function is recommendatory in nature. The agency's Reorganization Appeals Board was specially created by the Circular of the Office of the President dated October 2, 1987 and conferred with authority to review appeals and complaints of officials and employees affected by the reorganization. the decision of the agency RAB has the imprimatur of the Secretary of that agency and is therefore controlling in matters of and is therefore controlling in matters of appointment. Under this principle, the decision of the DARAB in this case enjoys precedence over the Placement Committee. 5 Hence, this petition was filed with a prayer for a writ of preliminary injunction and/or restraining order to enjoin the execution of the assailed resolutions. Without giving due course to the petition for a writ of preliminary injunction, the court required the parties to file their respective Comments. 6 On 12 November 1991, the Court gave due course to the petition and required the parties to submit their respective Memoranda. 7 The main issue for Our consideration is this: whether or not the CSC committed grave abuse discretion in reviewing and re-evaluating the ring or qualification of the petitioner Sinon. The arguments of the petitioner can be summed up as follows:
1). In issuing the Resolution of 8 February 1991, the CSC in effect revoked the appointment that the petitioner received as early as 30 August 1989 and which was deemed permanent by virtue of the approval of the Regional Director of the Department of Agriculture: 2). In giving petitioner a rating of only 57.66%, 8 from his previous rating of 60.66% and at the same time according a rating of 59.32% to private respondent from a rating of only 57.32%, the CSC departed from its power which is limited only to that of "review", and hence encroached upon the power of appointment exclusively lodged in the appointment authority; 3) In giving due course to the appointment of respondent Banan in its Resolution of 8 February 1991, CSC was directing the appointment of a substitute of their own choice when the power to appoint was exclusively lodged in the appointing authority.

We rule as follows.

By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility. 9 Contrary to the allegations of the petitioner, We do not find any evidence of grave abuse of discretion on the part of the CSC when it issued Resolution dated 8 February 1991 which in effect approved the appointment of respondent Banan over petitioner Sinon. With the reorganization of the MAF into the DA with Executive order No. 116, it became imperative to "protect the security of tenure of Civil Service Officers and employees in the implementation of government reorganization". Thus, Congress passed Republic Act No. 6656. 10 It was under the same law of R.A. 6656 that the Placement Committee was created:
Section 6. In order that the best qualified and mot deserving persons shall be appointed in any reorganization, there shall be created a Placement Committee in each department or agency to assist the appointing authority in the judicious selection and placement of personnel. The Committee shall consist of two (2) members appointed by the head of the department or agency, a representative of the appointing authority, and two (2) members duly elected by the employees holding positions in the first and second levels of the career service: Provided, that if there is a registered employee association with a majority of the employees as members, that employee association shall also have a representative in the Committee: Provided, Further, that immediately upon the approval of the staffing pattern of the department or agency concerned, such staffing pattern shall be made known to all officers and employees of the agency who shall be invited to apply for any of the positions authorized therein. Such application shall be considered by the committee in the placement and selection of personnel. (Emphasis supplied).

To "assist" mean to lend an aid to, 11 or to contribute effort in the complete accomplishment of an ultimate purpose intended to be effected by those engaged. In contrast, to "recommend" 13 is to present one's advice or choice as having one's approval or to represent or urge as advisable or expedient. It involves the Idea that another has the final decision.

12

Clearly, the Placement Committee was charged with the duty of exercising the same discretionary functions as the appointing authority in the judicious selection and placement of personnel when the law empowered it to "assist" the appointment authority. The same law also allows any officer or employee aggrieved by the appointments to file an appeal with the appointing authority who shall made a decision within thirty (30) days from the filing thereof. If the same employee is still not satisfied with the decision of the appointing authority, he may further appeal within ten (10) days from the receipt thereof the CSC. 14

In the case at bar, the Circular dated October 2, 1987 of the Office of the President created the agency Reorganization Appeals Board to address the problem of the employees affected by the reorganizations. The foregoing legal measures spell out the remedies of aggrieved parties which make it impossible to give the status of finality to any appointment until all protests or oppositions are duly heard. Thus, while it is true that the appointment paper received by petitioner Sinon on 30 August 1989 for the position of MAO had not conferred any permanent status and was still subject to the following conditions attached to any appointment in the civil service:
Provided that there is no pending administrative case against the appointee, no pending protest against the appointment, nor any decision by competent authority that will 15 adversely affect the approval of the appointment .

Hence, for as long as the re-evaluation of the qualification filed by Banan was pending, the petitioner cannot claim that he had been issued with a "complete" appointment. Neither is there any point in asserting that his appointment had "cured" whatever changes was subsequently recommended by the DARAB. 16 The fact that the DARAB is capable of re-evaluating the findings of the Placement Committed only to find that Sinon is not qualified should no be taken as a grave abuse of discretion. We cannot subscribe to petitioner Sinon's insistence that the public respondent CSC had disregarded the findings of the Placement Committee. The truth is, these findings of the Placement Committee. The truth is, these findings were re-evaluated and the report after such re-evaluation was submitted to and approved by the Secretary of Agriculture. The CSC affirmed the findings of the DARAB. Because of all the foregoing circumstances, the jurisprudence cited by the petitioner Sinon appears to be incorrect. 17 Neither do we find in the Resolution of 8 February 1991, any statement by the CSC directing the appointment of the respondent Banan. Hence, there was no directive from the CSC that may be misinterpreted as a usurpation of any appointing power. 18 Besides, in affirming the appointment of Banan as recommended by the DARAB and approved by the Secretary of Agriculture, the CSC is only being consistent with the law. Section 4 or R.A. 6656 mandates that officers and employees holding permanent appointments shall be given preference for appointment to the new positions in the approved staffing pattern comparable to their former positions. Also, the term incumbent officer and the privileges generally accorded to them would more aptly refer to Banan and not to petitioner Sinon whose appointment was never confirmed completely. 19 There is no dispute that the position of MAO in the old staffing pattern is most comparable to the MAO in the new staffing pattern.

Finally, the Solicitor General in behalf of the CSC correctly noted that the petitioner Sinon had conveniently omitted the then Secretary of Agriculture who had affixed his approval on the findings of the DARAB. Petitioner Sinon knew fully well that as head of the agency, the Secretary of Agriculture was the appointing authority. It must be recalled that the whole purpose of reorganization is that is it is a "process of restructuring the bureaucracy's organizational and functional set-up, to make it more viable in terms of the economy, efficiency, effectiveness and make it more responsive to the needs of its public clientele as authorized by law." 20 For as long as the CSC confines itself within the limits set out by law and does not encroach upon the prerogatives endowed to other authorities, this Court must sustain the Commission. WHEREFORE, the petition is DENIED with costs against the petitioner. SO ORDERED. G.R. No. 103125 May 17, 1993 PROVINCE OF CAMARINES SUR, represented by GOV. LUIS R. VILLAFUERTE and HON. BENJAMIN V. PANGA as Presiding Judge of RTC Branch 33 at Pili, Camarines Sur, petitioners, vs. THE COURT OF APPEALS (THIRD DIVISION), ERNESTO SAN JOAQUIN and EFREN SAN JOAQUIN, respondents. The Provincial Attorney for petitioners. Reynaldo L. Herrera for Ernesto San Joaquin.

QUIASON, J.: In this appeal by certiorari from the decision of the Court of Appeals in AC-G.R. SP No. 20551 entitled "Ernesto N. San Joaquin, et al., v. Hon. Benjamin V. Panga, et al.," this Court is asked to decide whether the expropriation of agricultural lands by local government units is subject, to the prior approval of the Secretary of the Agrarian Reform, as the implementator of the agrarian reform program. On December 22, 1988, the Sangguniang Panlalawigan of the Province of Camarines Sur passed Resolution No. 129, Series of 1988, authorizing the Provincial Governor to purchase or expropriate property contiguous to the provincial capitol site, in order to establish a pilot farm for non-food and non-traditional agricultural crops and a housing project for provincial government employees. The "WHEREAS" clause o:f the Resolution states:

WHEREAS, the province of Camarines Sur has adopted a five-year Comprehensive Development plan, some of the vital components of which includes the establishment of model and pilot farm for non-food and non-traditional agricultural crops, soil testing and tissue culture laboratory centers, 15 small scale technology soap making, small scale products of plaster of paris, marine biological and sea farming research center,and other progressive feasibility concepts objective of which is to provide the necessary scientific and technology know-how to farmers and fishermen in Camarines Sur and to establish a housing project for provincial government employees; WHEREAS, the province would need additional land to be acquired either by purchase or expropriation to implement the above program component; WHEREAS, there are contiguous/adjacent properties to be (sic) present Provincial Capitol Site ideally suitable to establish the same pilot development center; WHEREFORE . . . .

Pursuant to the Resolution, the Province of Camarines Sur, through its Governor, Hon. Luis R.Villafuerte, filed two separate cases for expropriation against Ernesto N. San Joaquin and Efren N. San Joaquin, docketed as Special Civil Action Nos. P-17-89 and P-19-89 of the Regional Trial Court, Pili, Camarines Sur, presided by the Hon. Benjamin V. Panga. Forthwith, the Province of Camarines Sur filed a motion for the issuance of writ of possession. The San Joaquins failed to appear at the hearing of the motion. The San Joaquins moved to dismiss the complaints on the ground of inadequacy of the price offered for their property. In an order dated December 6, 1989, the trial court denied the motion to dismiss and authorized the Province of Camarines Sur to take possession of the property upon the deposit with the Clerk of Court of the amount of P5,714.00, the amount provisionally fixed by the trial court to answer for damages that private respondents may suffer in the event that the expropriation cases do not prosper. The trial court issued a writ of possession in an order dated January18, 1990. The San Joaquins filed a motion for relief from the order, authorizing the Province of Camarines Sur to take possession of their property and a motion to admit an amended motion to dismiss. Both motions were denied in the order dated February 1990. In their petition before the Court of Appeals, the San Joaquins asked: (a) that Resolution No. 129, Series of 1988 of the Sangguniang Panlalawigan be declared null and void; (b) that the complaints for expropriation be dismissed; and (c) that the order dated December 6, 1989 (i) denying the motion to dismiss and (ii) allowing the Province of Camarines Sur to take possession of the property subject of the expropriation and the order dated February 26, 1990, denying the motion to admit the amended motion to dismiss, be set aside. They also asked that an order be issued to restrain the trial court from enforcing the writ of possession, and thereafter to issue a writ of injunction.

In its answer to the petition, the Province of Camarines Sur claimed that it has the authority to initiate the expropriation proceedings under Sections 4 and 7 of Local Government Code (B.P. Blg. 337) and that the expropriations are for a public purpose. Asked by the Court of Appeals to give his Comment to the petition, the Solicitor General stated that under Section 9 of the Local Government Code (B.P. Blg. 337), there was no need for the approval by the Office of the President of the exercise by the Sangguniang Panlalawigan of the right of eminent domain. However, the Solicitor General expressed the view that the Province of Camarines Sur must first secure the approval of the Department of Agrarian Reform of the plan to expropriate the lands of petitioners for use as a housing project. The Court of Appeals set aside the order of the trial court, allowing the Province of Camarines Sur to take possession of private respondents' lands and the order denying the admission of the amended motion to dismiss. It also ordered the trial court to suspend the expropriation proceedings until after the Province of Camarines Sur shall have submitted the requisite approval of the Department of Agrarian Reform to convert the classification of the property of the private respondents from agricultural to nonagricultural land. Hence this petition. It must be noted that in the Court of Appeals, the San Joaquins asked for: (i) the dismissal of the complaints for expropriation on the ground of the inadequacy of the compensation offered for the property and (ii) the nullification of Resolution No. 129, Series of 1988 of the Sangguniang Panlalawigan of the Province of Camarines Sur. The Court of Appeals did not rule on the validity of the questioned resolution; neither did it dismiss the complaints. However, when the Court of Appeals ordered the suspension of the proceedings until the Province of Camarines Sur shall have obtained the authority of the Department of Agrarian Reform to change the classification of the lands sought to be expropriated from agricultural to non-agricultural use, it assumed that the resolution is valid and that the expropriation is for a public purpose or public use. Modernly, there has been a shift from the literal to a broader interpretation of "public purpose" or "public use" for which the power of eminent domain may be exercised. The old concept was that the condemned property must actually be used by the general public (e.g. roads, bridges, public plazas, etc.) before the taking thereof could satisfy the constitutional requirement of "public use". Under the new concept, "public use" means public advantage, convenience or benefit, which tends to contribute to the general welfare and the prosperity of the whole community, like a resort complex for tourists or housing project (Heirs of Juancho Ardano v. Reyes, 125 SCRA 220 [1983]; Sumulong v. Guerrero, 154 SC.RA 461 [1987]). The expropriation of the property authorized by the questioned resolution is for a public purpose. The establishment of a pilot development center would inure to the direct

benefit and advantage of the people of the Province of Camarines Sur. Once operational, the center would make available to the community invaluable information and technology on agriculture, fishery and the cottage industry. Ultimately, the livelihood of the farmers, fishermen and craftsmen would be enhanced. The housing project also satisfies the public purpose requirement of the Constitution. As held in Sumulong v. Guerrero, 154 SCRA 461, "Housing is a basic human need. Shortage in housing is a matter of state concern since it directly and significantly affects public health, safety, the environment and in sum the general welfare." It is the submission of the Province of Camarines Sur that its exercise of the power of eminent domain cannot be restricted by the provisions of the Comprehensive Agrarian Reform Law (R.A. No. 6657), particularly Section 65 thereof, which requires the approval of the Department of Agrarian Reform before a parcel of land can be reclassified from an agricultural to a non-agricultural land. The Court of Appeals, following the recommendation of the Solicitor General, held that the Province of Camarines Sur must comply with the provision of Section 65 of the Comprehensive Agrarian Reform Law and must first secure the approval of the Department of Agrarian Reform of the plan to expropriate the lands of the San Joaquins. In Heirs of Juancho Ardana v. Reyes, 125 SCRA 220, petitioners raised the issue of whether the Philippine Tourism Authority can expropriate lands covered by the "Operation Land Transfer" for use of a tourist resort complex. There was a finding that of the 282 hectares sought to be expropriated, only an area of 8,970 square meters or less than one hectare was affected by the land reform program and covered by emancipation patents issued by the Ministry of Agrarian Reform. While the Court said that there was "no need under the facts of this petition to rule on whether the public purpose is superior or inferior to another purpose or engage in a balancing of competing public interest," it upheld the expropriation after noting that petitioners had failed to overcome the showing that the taking of 8,970 square meters formed part of the resort complex. A fair and reasonable reading of the decision is that this Court viewed the power of expropriation as superior to the power to distribute lands under the land reform program. The Solicitor General denigrated the power to expropriate by the Province of Camarines Sur by stressing the fact that local government units exercise such power only by delegation. (Comment, pp. 14-15; Rollo, pp. 128-129) It is true that local government units have no inherent power of eminent domain and can exercise it only when expressly authorized by the legislature (City of Cincinnati v. Vester, 28l US 439, 74 L.ed. 950, 50 SCt. 360). It is also true that in delegating the power to expropriate, the legislature may retain certain control or impose certain restraints on the exercise thereof by the local governments (Joslin Mfg. Co. v. Providence, 262 US 668 67 L. ed. 1167, 43 S Ct. 684). While such delegated power may be a limited authority, it is complete within its limits. Moreover, the limitations on the

exercise of the delegated power must be clearly expressed, either in the law conferring the power or in other legislations. Resolution No. 129, Series of 1988, was promulgated pursuant to Section 9 of B.P. Blg. 337, the Local Government Code, which provides:
A local government unit may, through its head and acting pursuant to a resolution of its sanggunian exercise the right of eminent domain and institute condemnation proceedings for public use or purpose.

Section 9 of B.P. Blg. 337 does not intimate in the least that local government, units must first secure the approval of the Department of Land Reform for the conversion of lands from agricultural to non-agricultural use, before they can institute the necessary expropriation proceedings. Likewise, there is no provision in the Comprehensive Agrarian Reform Law which expressly subjects the expropriation of agricultural lands by local government units to the control of the Department of Agrarian Reform. The closest provision of law that the Court of Appeals could cite to justify the intervention of the Department of Agrarian Reform in expropriation matters is Section 65 of the Comprehensive Agrarian Reform Law, which reads:
Sec. 65. Conversion of Lands. After the lapse of five (5) years from its award, when the land ceases to be economically feasible and sound for, agricultural purposes, or the locality has become urbanized and the land will have a greater economic value for residential, commercial or industrial purposes, the DAR, upon application of the beneficiary or the landowner, with due notice to the affected parties, and subject to existing laws, may authorize the reclassification or conversion of the land and its disposition: Provided, That the beneficiary shall have fully paid his obligation.

The opening, adverbial phrase of the provision sends signals that it applies to lands previously placed under the agrarian reform program as it speaks of "the lapse of five (5) years from its award." The rules on conversion of agricultural lands found in Section 4 (k) and 5 (1) of Executive Order No. 129-A, Series of 1987, cannot be the source of the authority of the Department of Agrarian Reform to determine the suitability of a parcel of agricultural land for the purpose to which it would be devoted by the expropriating authority. While those rules vest on the Department of Agrarian Reform the exclusive authority to approve or disapprove conversions of agricultural lands for residential, commercial or industrial uses, such authority is limited to the applications for reclassification submitted by the land owners or tenant beneficiaries. Statutes conferring the power of eminent domain to political subdivisions cannot be broadened or constricted by implication (Schulman v. People, 10 N.Y. 2d. 249, 176 N.E. 2d. 817, 219 NYS 2d. 241). To sustain the Court of Appeals would mean that the local government units can no longer expropriate agricultural lands needed for the construction of roads, bridges, schools, hospitals, etc, without first applying for conversion of the use of the lands with

the Department of Agrarian Reform, because all of these projects would naturally involve a change in the land use. In effect, it would then be the Department of Agrarian Reform to scrutinize whether the expropriation is for a public purpose or public use. Ordinarily, it is the legislative branch of the local government unit that shall determine whether the use of the property sought to be expropriated shall be public, the same being an expression of legislative policy. The courts defer to such legislative determination and will intervene only when a particular undertaking has no real or substantial relation to the public use (United States Ex Rel Tennessee Valley Authority v. Welch, 327 US 546, 90 L. ed. 843, 66 S Ct 715; State ex rel Twin City Bldg. and Invest. Co. v. Houghton, 144 Minn. 1, 174 NW 885, 8 ALR 585). There is also an ancient rule that restrictive statutes, no matter how broad their terms are, do not embrace the sovereign unless the sovereign is specially mentioned as subject thereto (Alliance of Government Workers v. Minister of Labor and Employment, 124 SCRA 1 [1983]). The Republic of the Philippines, as sovereign, or its political subdivisions, as holders of delegated sovereign powers, cannot be bound by provisions of law couched in general term. The fears of private respondents that they will be paid on the basis of the valuation declared in the tax declarations of their property, are unfounded. This Court has declared as unconstitutional the Presidential Decrees fixing the just compensation in expropriation cases to be the value given to the condemned property either by the owners or the assessor, whichever was lower ([Export Processing Zone Authority v. Dulay, 149 SCRA 305 [1987]). As held in Municipality of Talisay v. Ramirez, 183 SCRA 528 [1990], the rules for determining just compensation are those laid down in Rule 67 of the Rules of Court, which allow private respondents to submit evidence on what they consider shall be the just compensation for their property. WHEREFORE, the petition is GRANTED and the questioned decision of the Court of Appeals is set aside insofar as it (a) nullifies the trial court's order allowing the Province of Camarines Sur to take possession of private respondents' property; (b) orders the trial court to suspend the expropriation proceedings; and (c) requires the Province of Camarines Sur to obtain the approval of the Department of Agrarian Reform to convert or reclassify private respondents' property from agricultural to non-agricultural use. The decision of the Court of Appeals is AFFIRMED insofar as it sets aside the order of the trial court, denying the amended motion to dismiss of the private respondents. SO ORDERED. G.R. No. 116183 October 6, 1995 SEC. RICARDO T. GLORIA, in his capacity as Secretary of Education, Culture & Sports and Chairman of the Board of Trustees of the Philippine State College of Aeronautics (PSCA); JULIAN J. LOLENG, JR., in his capacity as Officer-in-Charge

of PSCA; and BOARD OF TRUSTEES of PSCA, petitioners, vs. HON. SALVADOR P. DE GUZMAN, JR., Presiding Judge of Branch 113, Regional Trial Court of Pasay, Metro Manila; VIRGILIO R. RAMOS, LEONY P. SENDIN, ROSARIO V. CERILLO, ANDREA A. PESTANO, ARTHUR V. RODRIGUEZA, LENI V. DIMAYUGA, JAIME ABON, RIZALDO O. VALLE, JOIE ARCEO, SHIRLEY PESTANO, SERVANDO SACUEZA, JAIME C. PONEGAL, EDGARDO MERCADO, CRISTINA BULADO, BENIGNO T. AQUINO, RODEL PESTANO, JUN JAY PARMA, NILO B. ELLO, and NELSON SACUEZA, respondents.

HERMOSISIMA, JR., J.: Intransigence of private respondents in maintaining a patently indefensible position sparked this long drawn out controversy. Knowing fully well that, as temporary employees whose terms of office, whether by contract or by the tenor of their appointments, had expired one year after their respective temporary appointments, that is, on December 31, 1992, they insist on a perceived, albeit mistaken, right to reinstatement. Before this Court is a Petition for Certiorari, filed by Hon. Ricardo T. Gloria, in his capacity as Secretary of Education, Culture and Sports (DECS) and as Chairman of the Board of Trustees of the Philippine State College of Aeronautics (PSCA); Col. Julian J. Loleng, Jr., in his capacity as Officer-in-Charge of the PSCA; and the Board of Trustees of the PSCA 1, under Rule 65 of the Revised Rules of Court, with the end in view of nullifying the Decision 2 and Order 3 of respondent Judge Salvador P. de Guzman, Jr., Presiding Judge of Branch 113, Regional Trial Court of Pasay City, dated January 31, 1994 and June 29, 1994, respectively. Questioned in effect by the petitioners is only the portion of the judgment ordering the reinstatement of private respondent Rosario V. Cerillo to the position of "Coordinator for Extension Services". Actually, the act of effecting the termination of the appointment of Rosario V. Cerillo was perpetrated by Col. Julian J. Loleng, Jr. while it was the Hon. Isidro Cario who was the DECS Secretary. The case for reinstatement which was filed before respondent Judge Salvador P. de Guzman, Jr. of the Pasay City Regional Trial Court was instituted during the incumbency of the succeeding DECS Secretary, the Hon. Armand Fabella. The judgment of the lower court, as a matter of fact, involved the Hon. Armand Fabella as defendant. In view of the resignation of Secretary Fabella, the duty and obligation to question the decision aforesaid of Judge Salvador P. de Guzman, Jr. devolved on the incumbent Secretary, the Hon. Ricardo T. Gloria. Consequently, the dramatis personae in this case include: DECS Secretary Ricardo T. Gloria; PSCA Board of Trustees Chairman Col. Julian J. Loleng, Jr.; and the PSCA

Board of Trustees created under Republic Act No. 7605, as petitioners; and RTC Executive Judge Salvador P. de Guzman, Jr., as public respondent, and the named private respondents who were the petitioners in the court below. The facts of the case are not in dispute. The question at issue is one of law: Is private respondent Rosario V. Cerillo entitled to reinstatement to the position of "Coordinator for Extension Services"? Private respondents were employees of the Philippine Air Force College of Aeronautics (PAFCA) which was created by virtue of Presidential Decree No. 1078 on January 26, 1977. Under the said decree, the Board of Trustees is vested with authority, among others, to appoint, as it did appoint, officials and employees of the college, except the members of the Board of Trustees themselves and the President of the college. In line with this authority, the PAFCA Board of Trustees issued Resolution No. 91-026 on April 1, 1991, which declared that "All faculty/administrative employees are also subject to the required civil service eligibilities", in accordance with pertinent civil service law, rules and regulations. Thus, herein private respondents were issued only temporary appointments because at the time of their appointment, they lacked appropriate civil service eligibilities or otherwise failed to meet the necessary qualification standards for their respective positions. Private respondent Rosario V. Cerillo, specifically, was issued a one-year temporary appointment to the position of Board Secretary II of PAFCA (now PSCA), that is, from January 1, 1992 to December 31, 1992. This appointment went along the line enunciated by the Civil Service Commission in a letter, dated March 25, 1992. 4 The letter emphasized that temporary appointments were good and renewable only up to 1992. On March 24, 1992, private respondent Rosario V. Cerillo was relieved as Board Secretary of the PAFCA in accordance with Board Resolution No. 92017 by reason of loss of confidence. Subsequently, however, she was designated as "Coordinator for Extension Services". On June 3, 1992, Republic Act No. 7605 was enacted into law. It converted PAFCA into a state college to be known as the Philippine State College of Aeronautics (PSCA). The Board of Trustees likewise was the governing body of the PSCA. The power to make appointments was retained by the Board. Petitioner Col. Julian J. Loleng, Jr. remained as Officer-in-Charge by virtue of a designation made anew by then DECS Secretary Isidro Cario on June 8, 1992. Only on December 7, 1992 did Col. Loleng inform private respondents that they shall be deemed separated from the service upon the expiration of their temporary appointments. Had private respondent Rosario V. Cerillo not been summarily dismissed as Board Secretary on March 24, 1992, her temporary appointment as such was supposed to have lasted until December 31, 1992.

On June 25, 1993, barely five months after the lapse of the terms of their temporary appointments as determined by the PSCA administration, the herein private respondents filed before the Regional Trial Court of Pasay City, presided over by respondent Judge Salvador P. de Guzman, Jr., a "Petition for Mandamus and Reinstatement, with Back Wages and Damages", docketed as Civil Case No. 10049. The complaint in effect prayed that then DECS Secretary Armand Fabella complete the filling up of positions for Board of Trustees and order the Board of Trustees to reinstate the respondents in the case at bench to their respective positions. In their Answer, 5 the herein petitioners opposed the petition upon the ground that mandamus will not lie to compel reinstatement because the reappointment prayed for is discretionary on the part of the appointing power. Besides, it was the claim of Secretary Fabella that a writ of mandamus should be unavailing to private respondents because of their failure to exhaust administrative remedies. We find the petition to be impressed with merit. I The judgment of respondent Judge Salvador P. de Guzman, Jr. which orders the reinstatement of Ms. Rosario V. Cerillo to the position of "Coordinator for Extension Services" is patently improper because it finds no support as to facts and the law. Respondent Cerillo, although temporarily extended an appointment as Board Secretary II, was dismissed therefrom because of loss of confidence. This dismissal was neither contested nor appealed from by Ms. Cerillo. There is no question, therefore, that her dismissal as Board Secretary II could not have been the subject of the petition for mandamus and reinstatement filed before respondent Judge. The fact is that private respondent's assignment as "Coordinator for Extension Services" was a mere designation. Not being a permanent appointment, the designation to the position cannot be the subject of a case for reinstatement. Furthermore, even granting that Ms. Cerillo could be validly reinstated as "Coordinator for Extension Services", her reinstatement thereto would not be possible because the position is not provided for in the PSCA plantilla. The PSCA could not have made any valid appointment for this inexistent position. This could very well be the reason why she was merely designated as Coordinator. As a mere designee, she could not have acquired any right to the position even if the position existed. At any rate, a mere "designation" does not confer upon the designee security of tenure in the position or office which he occupies in an acting capacity only 6. II Should the object of private respondent Cerillo in prosecuting the case in the court below be her reinstatement to the position of Board Secretary II, the reinstatement prayed for appears to be impermissible. In the first place,

Ms. Cerillo had already been dismissed from this position for loss of confidence. She did not contest this dismissal possibly because the position of Board Secretary II is primarily confidential and the Board of Trustees, when finding her, the incumbent to the position, to be wanting in faithfulness and integrity dismissed her for that reason alone. She accepted the dismissal without any ripple and when designated as Coordinator for Extension Services, she indicated acceptance by performing the acts called for by the designation. The quarrel between the private respondents, on the one hand, and the PSCA administration, on the other, came about in this manner: The Civil Service Commission, mandating a policy, wrote petitioner Col. Julian J. Loleng, Jr. a letter 7 mandating that temporary appointments of officers/employees of the PSCA were to last only up to December 31, 1992. For a better perspective, We quote a pertinent portion of the letter:
xxx xxx xxx Please note that temporary appointments last only for a maximum of one (1) year and all personnel appointed in a temporary capacity can be replaced any time by a civil service eligible. Since you have just been recently covered by the Civil Service Law and rules, this Field Office approved all your temporary appointments subject to yearly renewal up to 1992 only. Subsequent appointments should strictly conform with civil service policies. You may, therefore, advise all your temporary personnel to take civil service examinations in order to be eligible for appointment.

This letter was implemented by Col. Julian J. Loleng, Jr. Objecting thereto, private respondents pointed out to the PSCA administration that, in Resolution No. 91-026, dated April 1, 1991, the Board of Trustees declared that all faculty/administrative employees of the college, while required to acquire civil service eligibilities under pertinent civil service law, rules and regulations, must exert effort to acquire civil service eligibilities within a period of three years from their temporary appointments. This, the private respondents believe should be taken to mean that, should they acquire civil service eligibilities within that period of three years, they cannot be terminated from the service. The fact that private respondent Cerillo passed the requisite Civil Service Examination after the termination of her temporary appointment is no reason to compel petitioners to reappoint her. Acquisition of civil service eligibility is not the sole factor for reappointment. Still to be considered by the appointing authority are: performance, degree of education, work experience, training, seniority, and, more importantly, as in this case, whether or not the applicant enjoys the confidence and trust of the appointing power. As We said earlier, the position of Board Secretary II, by its nature, is primarily confidential, requiring as it does "not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which ensures freedom from misgivings of betrayals of personal trust or confidential matters of state." 8 In other words, the choice of an appointee from among those who possessed the required qualifications is a political and administrative decision calling for considerations of

wisdom, convenience, utility and the interests of the service which can best be made by the Head of the office concerned. 9 It cannot be overemphasized that the PSCA Board Resolution No. 91-026 must yield to the Civil Service Commission policies on the issuance of temporary appointments. When the Civil Service Commission directed that temporary appointments were to be effective only up to 1992, it did so in pursuance of the general purpose of the civil service law, as stated under Section 2 of Republic Act No. 2260, as amended, which is "to ensure and promote the constitutional mandate regarding appointments only according to merit and fitness and to provide within the public service a progressive system of personal administration to ensure the maintenance of an honest and efficient progressive and courteous civil service in the Philippines. 10 For that matter, it is vested with the function, among others, to promulgate policies, standards and guidelines for the civil service and adopt plans and programs to promote economical, efficient and effective personnel administration in the government. 11 We hold that reappointment to the position of Board Secretary II is an act which is discretionary on the part of the appointing power. Consequently, it cannot be the subject of an application for a writ of mandamus. Reinstatement is technically issuance of a new appointment which is essentially discretionary, to be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the qualifications required by law. 12 Such exercise of the discretionary power of appointment cannot be controlled, not even by the Court as long as it is exercised properly by the appointing authority. 13 It is Our holding that the questioned order of reinstatement amounts to an undue interference by the Court in the exercise of the discretionary power of appointment vested in the PSCA Board of Trustees. Surprisingly, the Court a quo, while upholding the right of private respondent Cerillo to a reappointment, adhered to this pontification by stating that:
The appointment of the petitioners to their former positions is not a matter of right; rather, it is a matter of discretion on the part of the respondents. Mandamus cannot be availed of to compel anyone to exercise his discretion absent any showing of grave abuse of discretion.

III The termination of the services of private respondents was proper and legal, it being the consequence of the Board of Trustees' power to appoint. The view of respondent Judge, however, is that there was no termination ordered. Either the employees' contracts lapsed or their temporary appointments were abrogated by circulars from the Civil Service Commission. This, as a necessary consequence of the transition from the

Philippine Air Force College of Aeronautics (PAFCA) to the Philippine State College of Aeronautics (PSCA). We agree with respondent Judge's disquisition on this point:
To the question was the termination of the services of the petitioners legal or not?, the only answer is there was not termination to speak of. Termination presupposes an overt act committed by a superior officer. There was none whatsoever in the case at bar. At most, Col. Julian (Loleng) gave notice to the petitioners of the expiration of their respective contracts, Petitioners appointment or employment simply expired either by its very own terms, or because it may not exceed one year, but most importantly because the PAFCA was dissolved and replaced by the PSCA. The notice given by Col. Loleng to the petitioners seem to have been misunderstood by them as an act of dismissal which as they correctly state, belongs to the Board of Trustees alone.

IV Considering Our finding that there is merit to the petition, the issue as to whether attorney's fees and costs of litigation should be awarded to private respondent Rosario V. Cerillo as adjudged in the questioned decision of respondent Judge has become moot and academic. At any rate, the Court holds that the said award could not have been imposed because, while it was directly ordered in the dispositive portion of the decision, it was neither discussed nor justified in the body of the questioned decision. Clear on this point is Our decision in Policarpio vs. Court of Appeals, 194 SCRA 129, 742, [1991]: "The Court had occasion to state that the reason for the award of attorney's fees must be stated in the text of the decision, otherwise, if it is stated only in the dispositive portion of the decision, the same shall be disallowed." This ruling We reiterated in the case of Koa vs. Court of Appeals, 219 SCRA 541, 549, [1991], citing Central Azucarcra de Bais vs. Court of Appeals, 188 SCRA 328, 340, where it was stated that "The award of attorney's fees must be disallowed for want of factual and legal premise in the text of the decision rendered by the court of origin and the appellate court as well." WHEREFORE, the petition is GRANTED. The challenged decision, dated January 31, 1994, insofar as it ordered the reinstatement of Ms. Rosario V. Cerillo and the payment to the latter of back wages and attorney's fees, and the Order, dated June 29, 1994, of respondent Judge Salvador P. de Guzman, Jr. are hereby declared null and void and ordered set aside. The temporary restraining order/preliminary injunction heretofore issued is hereby made permanent. SO ORDERED.