Republic of the Philippines COURT OF APPEALS Manila THIRTEENTH DIVISION ELPIDIO J. VEGA, Petitioner, versus CA-G.R. SP NO.

68664 Members: AGCAOILI, Chairman CRUZ, and TOLENTINO, JJ

JOY C. LEGASPI AND HON. AMADO D. VALDEZ, IN HIS CAPACITY AS GOVERNMENT Promulgated: CORPORATE COUNSEL, Respondents. x ----------------------------------------------------------------------------------------------------------------x

DECISION
AGCAOILI, J.: At the fulcrum in this special civil action for quo warranto is the position of the Deputy Government Corporate Counsel (DGCC). Petitioner Elpidio J. Vega and respondent Joy C. Legaspi both lay claim to the position of DGCC in the Office of the Deputy Government Corporate Counsel (OGCC). Petition is the incumbent while respondent Legaspi seeks to assume the position by virtue of a recent appointment. The jugular issue involves the requisite Career Executive Service (CES) eligibility for the said position. Petitioner forthwith began to assume and discharge the duties and responsibilities of DGCC of the OGCC upon his appointment by then President Fidel V. Ramos on March 9, 1998. Petitioner was extended a permanent appointment to the position which only required R.A. No. 1080 (BAR) eligibility1. The DGCC enjoys a salary grade 29 (SG-29), a rank equivalent to an Assistant Government Corporate Counsel (AGCC).2 On July 7, 1999, after successfully completing the 4-stage examinations, petitioner was conferred CES eligibility by the CES Board and was endorsed for a career executive service officer rank (CESO rank) appointment.3 Petitioner held the DGCC position even during the incumbency of President Joseph E. Estrada. However, upon the assumption to office of President Gloria Macapagal Arroyo, she appointed respondent Legaspi on March 26, 2001 as DGCC vice herein petitioner. 4 Respondent Legaspi took his oath of office on June 16, 2001.
1 2 3 4

1997 Civil Service Qualification Standards Rollo, 41 Ibid. 39 Ibid. 186

CA-G.R. SP NO. 68664 -2DECISION

In view of the impasse created by two officers appointed to the same position, respondent Hon. Amada D. Valdez, Government Corporate Counsel (GCC), issued Office Order No. 107 on July 11, 2001, approved by Secretary of Justice Hernando B. Perez, re-classifying and upgrading the position of respondent Legaspi as Government Attorney IV to Deputy Government Corporate Counsel for Administration and petitioner as Deputy Government Corporate Counsel for operations. In a letter dated August 15, 2001 to Secretary Emilia T. Boncodin of the Department of Budget and Management (DBM), respondent Valdez requested the approval of a supplemental budget pursuant to the said re-classification of the positions. Meantime, Office Order No. 107 spawned an exchange of memoranda between petitioner and respondent Legaspi, both claiming to be legally entitled to the position of DGCC. Respondent Legaspi staunchly argued that his appointment is valid, binding and does not suffer any legal defect or infirmity. Ergo, he is the sole incumbent DGCC.5 He alleged that petitioner did not have the CESO rank appropriate for the position of DGCC, hence, his appointment cannot be considered permanent. Necessarily, he cannot claim security of tenure with respect to the position. 6 The office order of the DGCC re-classifying and upgrading his position, he claimed, ought to be recalled since it is contrary to law. The GCC had no authority to do so and it is, in effect, a repudiation of the appointing powers exercise of authority.7 In reply, petitioner contended that the office order is valid as it bore the approval of the Secretary of Justice. Thus, he is legally entitled to the position of DGCC, and to perform his duties as such. He clarified that under the 1997 Qualification Standards of the Civil Service Commission, the only eligibility requirement for the DGCC is R.A. No. 1080 in accordance with E.O. 8788 and E.O. No. 299.9 A CES eligibility was not required. Hence, possessing all the qualifications required for the position, his appointment is permanent. As the rightful occupant of the contended position, petitioner enjoys security of tenure and can only be removed for cause in accordance with the procedure prescribed by pertinent civil service laws, rules and regulations. On January 21, 2002, the OGCC received a resolution from the DBM denying the request for re-classification of the position of Government Corporate Attorney IV occupied by respondent Legaspi to DGCC and a supplemental budget for the incremental cost consequent to the reclassification.10 The DBM reiterated that E.O. No. 878 contemplates only one position of DGCC and it is the manifest intent of the appointment issued to respondent Legaspi that he be appointed to that position vice herein petitioner. On even date, petitioner received Office Order No. 007,11 series of 2002, dated January 18, 2002, signed by respondent Valdez directing the administrative and finance sections to process the payment of salaries and other compensation due respondent Legaspi effective upon his assumption of duty. The salaries and other compensation of petitioner were, however, to
5 6

Ibid. 94 Ibid. 90 7 Ibid. 94 8 Reorganizing the Office of the Government Corporate Counsel 9 Modifying Executive Order No. 878 dated March 4, 1983 10 Rollo. 193 11 Ibid. 146

CA-G.R. SP NO. 68664 -3DECISION

be derived from savings generated from vacant positions in the office.12 Petitioner viewed this proposition as a deprivation of his salary and other benefits considering that the same shall be taken from the savings of the office, if there are any.13 Without delay, petitioner sought judicial intervention on January 22, 2002 with the filing of this special civil action for quo warranto to declare that he is the rightful incumbent of the position of DGCC and enjoin respondents herein from illegally ousting and removing him from his office. On January 29, 2002, this court issued a temporary restraining order enjoining respondents and all persons acting for and in their behalf to maintain the status quo, and to desist from any act tantamount to removing petitioner from the position of DGCC.14 Petitioner proposes the following issues for resolution, to wit: A. B. C. WHETHER OR NOT PETITIONER HAS A VALID APPOINTMENT AND THUS ENJOYS SECURITY OF TENURE WHETHER OR NOT PETITIONER IS PERMANENT AND IN THE CAREER SERVICE WHETHER OR NOT EO 878 AND EO 299 CAN BE AMENDED BY THE CESO BOARD TO PROVIDE ADDITIONAL REQUIREMENTS FOR QUALIFICATIONS WHETHER OR NOT RESPONDENT LEGAPIS APPOINTMENT TO THE POSITION OF DGCC VICE PETITIONER IS HIGHLY IRREGULAR AS THERE IS NO VACANCY15

D.

Petitioner avers that the position of DGCC is created by law and the qualification and eligibility requirements therefor are prescribed and specified therein. E.O. No. 878, Section 1, as amended by E.O. No. 299 provides: SECTION 1. x x x SECTION 1. The Office of the Government Corporate Counsel shall be headed by the Government Corporate Counsel whose rank, emoluments and privileges shall be the same as those of the Presiding Justice of the Court of Appeals. He shall be assisted by a Deputy Government Corporate Counsel whose rank, emoluments and privileges shall be the same as those of an Associate Justice of the Court of Appeals, and ten (10) Assistant Government Corporate Counsels whose rank, emoluments and privileges shall be the same as
12 13 14 15

Ibid. Ibid. Ibid. Ibid.

146 19 162 324

CA-G.R. SP NO. 68664 -4DECISION

those Regional Trial Judge of the Regional Trial Courts. The Government Corporate Counsel, Deputy Government Corporate Counsel and Assistant Government Corporate Counsels must be officers learned in law, of recognized competence, with experience in the practice of law for at least ten (10) years, and at least thirty-five (35) years of age.16 This specific provision of law, he theorizes, prescribes the qualification standards for the position of DGCC and it cannot be supplanted unless duly amended by law. Petitioner maintains that at the time of his appointment on March 9, 1998, he possessed all the prescribed qualifications including the R.A. No. 1080 eligibility, which was the only civil service eligibility required for the position of DGCC. As such, his was a permanent appointment entitling him to security of tenure. Petitioner points out that the position of DGCC falls under the career service of the Civil Service under the classification of career officers, other than those in the Career Executive Service, who are appointed by the President.17 The position is, therefore, permanent and career in character. He contends that it is neither policy-making nor highly confidential as the DGCC merely assists the GCC, who is the head of office. The DGCC, though appointed by the President, is the most senior career official of the OGCC. Petitioner likens the position to the Assistant Government Corporate Counsels, City Prosecutors and the Prosecutors, who, while being presidential appointees, are all career officials. He stresses that a CESO eligibility or rank is not required by law for the contested position. The qualifications and rank for the DGCC are well defined by law18 and are necessarily restricted to what it prescribes. To add or supplant additional qualifications would, in effect, amend the charter of the OGCC, E.O. No. 878, as amended by E.O. No. 299. These latter laws dealt particularly with the qualifications of the DGCC and must prevail over the general law and the CES Boards administrative issuance. Moreover, the required qualifications for a DGCC are reflected in the 1997 Qualification Standards of the Civil Service Commission 19 and a CES eligibility is not required therein. The CES Board cannot declare or require additional eligibility and conferment of rank, as that would undermine his security of tenure. Considering that petitioner, at the time of his appointment as DGCC on March 9, 1998, met all the qualifications prescribed by E.O. No. 878, as amended by E.O. No. 299, including the required civil service eligibility under R.A. No. 1080, then petitioners appointment is considered permanent and he cannot be dismissed from the service without cause.

16 17 18 19

Underlining supplied Sec. 7(4). Chapter II, Title I, Subtitle A. Book V. Administrative Code of 1997 E.O. 878, as amended Rollo. 152

CA-G.R. SP NO. 68664 -5DECISION

Petitioner argues that the position requires membership in the BAR and ten years in the practice of law. These requirements, he contends, cannot be supplanted by the 4-stage entrance examination given by the CES Board which cannot evaluate much less determine the wealth of experience highly peculiar to practicing lawyers. Petitioner asseverates that respondent Legaspis reliance on the pronouncements made by the Supreme Court in Secretary of Justice v. BacaL20 is misplaced. First, the position involved therein is the Chief Public Attorney in the Public Attorneys Office. As it involved the head of office, the position is necessarily political and the appointee thereto can be removed at any time upon the pleasure of the President unless the incumbent acquires a CESO rank appropriate for the position. In contrast, the DGCC is not a political position. It is career in character. A rank in the CES is not required since the law has already conferred the rank of Associate Justice of the Court of Appeals upon the appointee to the position. Second, the qualification standards for the office specifically prescribed a career service executive eligibility for the position, thus, the ruling that permanent status can only be attained through the conferment of a CESO rank was mainly because the CES eligibility needed for Chief Public Attorney was explicitly stated. Third, the Administrative Code and the law creating the Public Attorneys Office do not specify the qualifications necessary for the position of Chief Public Attorney, whereas, the law creating the OGCC specifically fixes the qualifications for the position of DGCC. Petitioner claims that since he has not resigned nor been removed for a valid cause, there is no vacancy in the position of DGCC. No valid appointment, therefore, can be issued to herein respondent Legaspi to a position which has not been vacated. Respondent Legaspi, on the other hand, contends that the position of DGCC is a career position in the third level, entrance to which is prescribed by the CES Board. Positions in the CES include the Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Chief of Department Services and other officers of equivalent rank as may be identified by the CES Board, all of whom are appointed by the President. Since the DGCC demands executive and managerial responsibility and competence in the supervision of all lawyers at the OGCC and, in the absence of the GCC, acts as the officer-in-charge, the position necessarily belongs to the third level and is, therefore, subject to the rules and regulations issued by the CES Board. Further, respondent cites a communication from the CES Board issued in response to his query, which states that: Please be informed that the position of Deputy Government Corporate Counsel (SG-29) is a Career Executive Service (CES) position and is equivalent to an Assistant Secretary position. According to law, an official enjoys security of tenure if he is appointed to an appropriate rank in the CES. In your case, the appropriate rank for your position is CESO Rank II.
20

347 SCRA 338 (2000)

CA-G.R. SP NO. 68664 -6DECISION

Please be informed further that an official may only be appointed to a CESO rank upon compliance with the following requirements: (1) (2) (3) (4) (5) (6) he must be an incumbent of a CES position; he must be a CES eligible; he must have at least a Satisfactory rating based on the yearly CES Performance Evaluation System or CESPES; he must have an endorsement letter from the Department Secretary; he must submit clearances from his agency, Sandiganbayan, PCAGC and self-certification that he has no pending administrative or criminal cases; and he must have no pending administrative and criminal cases.21

The same Board, respondent claims, has certified that herein petitioner is not a CESO, stating that: This is to certify that ATTY. ELPIDIO J. VEGA is a Career Executive Service (CES) Eligible per CES Board Resolution No. 230 dated July 7, 1999. However, he is not a Career Executive Service Officer (CESO) as he has not been appointed to a CES Rank by the President of the Philippines.22 Respondent Legaspi also posits that E.O. No. 878, as amended by E.O. No. 299, prescribes only the minimum qualifications for the position of DGCC. On the other hand, the Administrative Code of 1987 and the Integrated Reorganization Plan (IRP) creating the CES and the CES Board prescribe the requirements applicable to the holder of a third level or CES position, such as the DGCC, to enjoy security of tenure. Contrary to petitioners contention, there is nothing in E.O. No. 878 which would even remotely suggest that the qualification of the DGCC are exclusive. In fact, there appears no conflict between E.O. No. 878, as amended, on one hand, and the provisions of the Administrative Code and the IRP, as amended, on the other, regarding the CES. E.O. No. 878 prescribes the minimum qualification and since the DGCC is a third level position, the requirements prescribed by the CES Board regarding CES Eligibility with the appropriate rank must be followed. Respondent Legaspi concludes that since petitioner does not possess all the qualifications for the position of DGCC, his appointment thereto could only be deemed temporary. Respondent Legaspi also adverts to Memorandum Circular No. 1, issued on January 30, 2001 by the President through the executive secretary, which specifically provides that (P)ursuant to existing laws and jurisprudence, all non-Career Executive Service Officer [CESO] occupying career executive service [CES] positions shall continue, in a hold-over capacity, to perform and discharge their responsibilities until their successors have been appointed and have qualified. Thus, since petitioners appointment is only temporary, it was effectively withdrawn by President Arroyo when she appointed respondent herein as DGCC on March 26, 2001.
21 22

Rollo. 184 Ibid., 188

CA-G.R. SP NO. 68664 -7DECISION

Again, referring to the cases of Secretary of Justice v. Bacal,23 and Executive Secretary v. Roco,24 respondent Legaspi claims that the President can legally and validly replace petitioner by appointing him to the position. The law allows, in exceptional cases, the appointment of a non-CES eligible provided that the appointee subsequently passes the CES examinations. Besides, the court, he claims, cannot and should not substitute its judgment for that of the appointing authority. True, petitioners appointment was valid but only until respondent Legaspi was appointed by President Arroyo on March 26, 2001 because the latters appointment was very clear and specific, i.e., vice Elpidio J. Vega.25 In his supplemental memorandum dated May 29, 2002, petitioner specifically contests the communication from the CES Board declaring the DGCC as a CES position based on the criteria that the position is (a) career.; (b) above a division chief and SG-25 at least; and (c) performing executive and managerial functions and has supervisory responsibility over a division. He argues that conditional stipulations under Resolution No. 16526 of the CES positions were not complied with. The DGCC position, he continues, has not been converted to a position in the CES. More importantly, he alleges, Resolution No. 165 was promulgated and approved on July 6, 1998. It cannot be retroactively applied to petitioner who was appointed DGCC in the OGCC as early as March 9, 1998. The petition is impressed with merit. The rank, qualifications for appointment, emoluments and privileges of the DGCC are kindred to those of an Associate Justice of the Court of Appeals.27 As such, the DGCC must be an officer learned in law, of recognized competence, with experience in the practice of law for at least ten years and at least thirty-five (35) years of age.28 Under the qualification standards of the Civil Service Commission, the position of DGCC is accorded a Level 2 classification with a salary grade 29. It requires a bachelor of laws degree and significantly, only an R.A. No. 1080 eligibility. At the time of his appointment, petitioner possessed all these qualifications. It is beyond contest, therefore, that he holds a permanent appointment to the position, not so much because his appointment was designated as such or that the position is inherently permanent in character but more so because he met all the requirements for the position. A permanent appointment is issued to a person who meets all the requirements for the position to which he is being appointed, including the appropriate eligibility prescribed, in accordance with the provisions of laws and standards promulgated in pursuance thereof.29

23 24

Supra 350 SCRA 528 (20014) 25 Rollo. 293 26 Defining the coverage of the Career Executive Service (CES) in accordance with the Provisions of Law 27 Sec. 1. E.O. 299 28 Ibid. 29 Sec. 27, Book V-A, Administrative Code of 1997

CA-G.R. SP NO. 68664 -8DECISION

It cannot be gainsaid that the position of DGCC belongs to the career service where entrance is based on merit and fitness and is marked by the opportunity for advancement and the guarantee of security of tenure. Respondent Legaspi and the GCC, however, maintain that the position of the DGCC has been classified by the CES Board as belonging to the third level of the CES, equivalent to an assistant secretary of a department, and requires a CESO II eligibility. We shall resolve this issue in light of CES Board Resolution No. 165, 30 approved on July 6, 1998, pertinent portions of which read: WHEREAS, in consonance with its powers to identify positions of equivalent rank as CES positions, the Board deems it necessary to examine the duties, responsibilities and functions of other executive or supervisory positions, and to classify these positions as CES positions if found to meet the following criteria: a) The position is career.; b) The position is above division chief and has a salary grade of at least twenty-five (SG 25); and c) The position is performing executive and managerial functions and has supervisory responsibility over a division/s NOW THEREFORE, be it RESOLVED, as it is HEREBY RESOLVED, that, in addition to the positions identified in both PD 1 and EO 292 as CES positions, namely, the positions of Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, and Chief of Department Service, other executive and supervisory positions, provided they meet the above criteria, are hereby classified and declared as CES positions under the governance of the Career Executive Service Board. RESOLVED FURTHER, that the Board furnish the concerned government offices the plantilla of CES positions, and subsequent plantilla of other executive or supervisory positions that meet the aforesaid criteria and classified by the Board as CES or third level positions. The power of the CES Board to classify certain positions appertaining to the CES may be conceded. However, under basic principles of law, equity and justice, the CES Board cannot merely undertake an indiscriminate classification of positions without regard to the rights of the incumbent. Lest its plenitude of powers mutate to blatant indiscretion, the CES Board is duly constrained by the requirements of due process. To ensure that substantive justice is achieved, the CES Board must first thoroughly examine and evaluate the existing positions prior to their classifications as part of the CES. Indeed, by legislative fiat, the CEs Board is mandated to furnish the concerned government offices the plantilla of CES positions and subsequent
30

Defining the coverage of the Career Executive Service (CES) in accordance with the Provisions of Law. Annex B, Supplemental Memorandum

CA-G.R. SP NO. 68664 -9DECISION

plantilla of other executive or supervisory positions that meet the aforesaid criteria and classified by the board as CES or Third level positions. The OGCC, however, through its administrative officer and CES coordinator,31 professes in a certification, dated May 9, 2002, that it was not furnished with the plantilla of CES posts classified in accordance with the resolution.32 The plantilla of personnel as of April 30, 2001 does not reflect the DGCC as a CES position requiring CES eligibility. Again, only a civil service eligibility under R.A. No. 1080 is required. Inexplicably, in a letter received on April 8, 2002 by the OGCC, the CES Board requested that it be provided with documents allegedly to facilitate a position classification study for the OGCC. The letter reads in part: We are currently conducting a study on executive positions in all government agencies and Government-Owned and Controlled Corporations (GOCCs). To facilitate the completion of this project, we would like to ask for a copy of the following documents as bases for our position classification study: 1. Office charter and reorganization law 2. Organizational Chart 3. Notice of Organization, staffing and Compensation Action (NOSCA) issued by the DBM 4. Updated Plantilla of Positions 5. Statement of Duties and Functions of all executive positions.33 The request leads to the inevitable conclusion that the CES Board was yet to study and examine the positions in the OGCC falling under the CES. Thus, the CES Board could not have preempted the study by declaring outright the position of a DGCC as a CES position. Resolution No. 165 has created distinct preconditions which must be observed. Apparently, none of these has been complied with. The CES Board cannot declare the position of a DGCC as a CES position without examining its functions, duties, and responsibilities. Neither can it classify the same without amending the plantilla and the qualification standards. More importantly, the CES Board cannot effect such classification without informing the affected government office. To contend, consequently, that the DGCC has already been classified as a CES position is legally impermissible and raises due process questions. Even on the assumption, ex gratis argumenti, that Resolution No. 165 has converted the DGCC to a CES position requiring CES eligibility and a CESO rank for the appointee to enjoy security of tenure, it ought not to adversely affect the permanent appointment of petitioner by relegating him to the status of a temporary employee.
31 32 33

Leilani C. Lopez. Administrative Officer V: Annex C. Supplemental Memorandum Annex B. Ibid. Annex C. Ibid.

CA-G.R. SP NO. 68664 - 10 DECISION

Resolution No. 165 was promulgated and approved on July 6, 1998, a good four months after petitioners appointment to office as DGCC. At the time of petitioners appointment, there was no requirement for a CES eligibility or conferment of rank. Petitioner was then indubitably in possession of and met all the qualifications for the office. Plainly, he holds a permanent appointment to a career position and enjoys the constitutionally guaranteed right to security of tenure. It must be emphasized that a statute operates prospectively and never retroactively unless the legislative intent to the contrary is made manifest either by express terms or by necessary implication.34 No retroactive intent is made manifest in Resolution No. 165. Fundamental fairness compels that petitioner be maintained in his position unless valid cause exists for his removal. The incumbent has in his favor the guarantee of security of tenure which cannot be defeated by the provision for higher or other qualifications than were prescribed under the law effective upon his appointment. The provision, at the least, can only operate prospectively.35 It is well to remember that when the dispute concerns ones constitutional right to security of tenure, public office is deemed analogous to a property in a limited sense; hence, the right to due process could veritably be invoked by herein petitioner.36 To prescribe additional qualifications for herein petitioner prior to declaring the position as belonging to the CES, without due notice to the office or to the incumbent, is a blatant irreverence to his constitutionally enshrined right. To give retroactive effect to the resolution prescribing higher qualifications is pillage to a vested right. Though there is, in reality, no vested right to a public office, yet, the incumbent has, in a sense, a right to the position specially when a statute aims to legislate public servants out of office.37 It is a hornbook rule that a permanent appointment, once made, is irrevocable and not subject to reconsideration.38 After the assumption of office of an appointee, the valid appointment made and approved should not be disturbed, except for just cause. In resume, official communications and documents borne out by the records amply and inexorably support petitioners claim of permanency and security of tenure vis--vis the tenuous stand of respondent Legaspi. First, both plantilla of personnel for the OGCC and the DBM, as they stood upon petitioners assumption to office in 1998 to this date. Categorically state that petitioners appointment is permanent.39 Second, even petitioners service record bears a permanent status designation since his appointment as DGCC.40 Third, the tenor of the following communication from the GCC addressed to the Secretary of Justice categorically bolsters petitioners stance, thus:
34 35 36 37 38 39 40

Segovia v. Noel, 47 Phil 543 (1925) Mayor v. Macaraig. 194 SCRA 672 (1991) Lumiqued v. Exevea. 292 SCRA 125 (1997) Segovia v. Noel. supra Agpalo. The Law of Public Officers. 1st ed., 1998. 101-102 Rollo. 58-62. 112-117. 153-158 Ibid., 159

CA-G.R. SP NO. 68664 - 11 DECISION

MEMORANDUM June 11, 200110 FOR FROM SUBJECT : : : HONORABLE HERNANDO B. PEREZ SECRETARY OF JUSTICE AMADO D. VALDEZ GOVERNMENT CORPORATE COUNSEL RETENTION OF ELPIDIO J. VEGA AS DEPUTY GOVERNMENT CORPORATE COUNSEL OFFICE OF THE CORPORATE COUNSEL In connection with the above-captioned subject, I would like to inform your good office of the following circumstances: 1. The position of Deputy Government Corporate Counsel (DGCC) is permanent and a career in character, unlike the position of the Government Corporate Counsel which is coterminus with the appointing authority. At present, the salary grade of the DGCC is SG-29, a rank equivalent to an Assistant Government Corporate Counsel41 (AGCC). As such, the DGCC is not involve in the policy making process at the office of the Government Corporate Counsel because said function is principally lodged with the Government Corporate Counsel (GCC). The DGCC position is likened to that of the Prosecutors of Department of Justice specifically the City prosecutors and the first assistant prosecutors which positions are permanent.

GOVERNMENT

Fourth, Office Order No. 107 sustains the permanence of petitioners appointment by declaring the position of the Deputy Government Corporate Counsel (DGCC) is permanent and career in character.42 Fifth, former Justice Secretary Silvestre Bello clarifies in a letter, dated June 25, 2001, addressed to President Arroyo ~ x x x . The position of DGCC under EO 878, as amended, is a permanent one as he is not the head of the office but only assists the Government Corporate Counsel. I am certain fro the records (plantilla) that his appointment to the position is classified as permanent and would not be subject to the pleasure of the appointing authority or upon changes in the administration.43

41 42 43

Ibid. 41: underlining added Ibid. 76: bold type given Ibid. underlining added

CA-G.R. SP NO. 68664 - 12 DECISION

Sixth and last, President Arroyo, in a marginal note to the Secretary of Justice, instructed ~ Nani Perez- let us start w/ giving a supplemental for the position of Joy Legaspi44 Without doubt, the Presidents request for a supplemental budget for respondent Legaspi recognizes that the existing budget for the position of the DGCC pertains to the petitioner. Such recognition is pregnant with admission that the petitioner cannot be unceremoniously removed from his position or be arbitrarily deprived of the perquisites of his office. As a career service officer, petitioner basks in the right to security of tenure. No less than the Constitution guarantees this right. Section 36 of P.D. No. 807, as amended, otherwise known as Civil Service Decree of the Philippines, is like emphatic that career service officers and employees who enjoy security of tenure may be removed only for any of the causes enumerated in the law. That petitioner is a presidential appointee bears no distinction. The Constitution eschews arbitrariness and it never intended that the power to appoint be exercised with abuse.45 It does not give the appointing authority the liberty to remove him at will or at his pleasure for petitioner is, foremost, a career service officer who, under the law, is the recipient of tenurial protection. He may only be moved for a cause and in accordance with procedural due process.46 To say that the appointment of respondent Legaspi had no color of title is a superfluity. There is no vacancy in the position of DGCC. No person, no matter how qualified and eligible he is for a certain position, may be appointed to an office which is not vacant. The incumbent must have been lawfully removed or his appointment validly terminated before another could be lawfully appointed in his stead. An appointment to an office not vacant is null and void ab initio.47 Two different persons cannot, at the same time, be in the actual occupation and exercise of an office for which one incumbent only is provided by law.48 There cannot, thus, be an officer de jure and another officer de facto in possession of one and the same office at the same time. Neither can there be two de facto incumbents of one office at the same time.49 Where two officers are acting simultaneously, each under claim of right, the one who appears to have the better legal title will alone be recognized and be entitled to the salaries and emoluments appertaining to the position.50 WHEREFORE, the petition is GRANTED. Judgment is hereby rendered DECLARING petitioner ELPIDIO J. VEGA as the lawful incumbent to the position of Deputy Government Corporate Counsel in the Office of the Government Corporate Counsel. Respondents and their successors-in-office
Rolo. 84. 357 Secretary of Justice v. Bacal. supra 46 Larin v. Executive Secretary. 280 SCRA 713 (1997) Garces v. Court of Appeals. 259 SCRA 99 (1996) 63 Am Jur 2d. 931 Ibid. Ibid.
45 44

47 48 49 50

CA-G.R. SP NO. 68664 - 13 DECISION

are hereby PERMANENTLY ENJOINED from removing or causing the removal of petitioner from the office without cause as provided by law, and are hereby ORDERED to immediately reinstate or cause the reinstatement of petitioner as Deputy Government Corporate Counsel, with payment of full back salaries. The appointment of respondent Joy C. Legaspi is hereby DECLARED null and void. SO ORDERED. (SGD.) OSWALDO D. AGCAOILI Associate Justice WE CONCUR: (SGD.) EDGARDO P. CRUZ TOLENTINO Associate Justice (SGD.) AMELITA G. Associate Justice

ATTESTATION
I hereby attest that the above decision was reached after due consultation among the members of this Division in accordance with the provision of section 13, Article VIII of the Constitution. OSWALDO D. AGCAOILI Chairman, Thirteenth Division