602 Phil. 325
TINGA, J.:
On the other hand, respondent maintains that he was appointed to a second-level position and, thus, he is not under the Career Executive Service (CES). He adds that he was, in fact, appointed to a station-specific position. Moreover, he claims that his reassignments were made in violation of the rules and constitute constructive dismissal.[27]
- in classifying the position held by Hamoy, Jr. as TransCo Vice President as a mere second level and not a third level position;
- in declaring that presidential appointment is a requirement for a position to be classified as belonging to the third level thus disregarding the clear provisions of CSC Memorandum Circular No. 21, series of 1994 and prevailing jurisprudence;
- in holding that Hamoy, Jr. was appointed to a station-specific position;
- in classifying the first movement of Hamoy from his original assignment in the VisMin Operations and Maintenance to the office of the president as a "reassignment" and not a `detail;"
- in declaring that Hamoy's reassignment was not made in accordance with civil service laws, rules, and regulations.[26]
Petitioner also cites Caringal v. Philippine Charity Sweepstakes Office (PCSO)[28] and Erasmo v. Home Insurance Guaranty Corporation[29] to show that a presidential appointment is not required before a position in a government corporation is classified as included in the CES. [30] We are not convinced.
- Positions covered by the Career Executive Service
(a) x x x
(b) In addition to the above identified positions and other positions of the same category which had been previously classified and included in the CES, all other third level positions of equivalent category in all branches and instrumentalities of the national government, including government owned and controlled corporations with original charters are embraced within the Career Executive Service provided that they meet the following criteria:
- the position is a career position;
- the position is above division chief level;
- the duties and responsibilities of the position require the performance of executive and managerial functions.
Section 8. Classes of positions in the Career Service.--( 1) Classes of positions in the career service appointment to which requires examinations shall be grouped into three major levels as follows:Positions in the CES under the Administrative Code include those of Undersecretary, Assistant Secretary, 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.[32] Simply put, third-level positions in the Civil Service are only those belonging to the Career Executive Service, or those appointed by the President of the Philippines. This was the same ruling handed down by the Court in Office of the Ombudsman v. Civil Service Commission,[33] wherein the Court declared that the CES covers presidential appointees only.
(a) The first level shall include clerical, trades, crafts and custodial service positions which involve non-professional or sub-professional work in a non-supervisory or supervisory capacity requiring less than four years of collegiate studies; (b) The second level shall include professional, technical, and scientific positions which involve professional, technical or scientific work in a non-supervisory or supervisory capacity requiring at least four years of college work up to Division Chief levels; and (c) The third level shall cover positions in the Career Executive Service.[31]
Thus, the CES covers presidential appointees only. As this Court ruled in Office of the Ombudsman v. CSC:Respondent was appointed Vice-President of VisMin Operations & Maintenance by Transco President and CEO Alan Ortiz, and not by the President of the Republic. On this basis alone, respondent cannot be considered as part of the CES."From the above-quoted provision of the Administrative Code, persons occupying positions in the CES are presidential appointees. xxx" (emphasis supplied)Under the Constitution, the Ombudsman is the appointing authority for all officials and employees of the Office of the Ombudsman, except the Deputy Ombudsmen. Thus, a person occupying the Position of Director II in the Central Administrative Service or Finance and Management Service of the Office of the Ombudsman is appointed by the Ombudsman, not by the President. As such, he is neither embraced in the CES nor does he need to possess CES eligibility.[34]
Appointment to CES RankInterestingly, on 9 April 2008, CSC Acting Chairman Cesar D. Buenaflor issued Office Memorandum No. 27, s. 2008, which states in part:
Upon conferment of a CES eligibility and compliance with the other requirements prescribed by the Board, an incumbent of a CES position may qualify for appointment to a CES rank. Appointment to a CES rank is made by the President upon the recommendation of the Board. This process completes the official's membership in the CES and most importantly, confers on him security of tenure in the CES.
To classify other positions not included in the above enumeration as covered by the CES and require appointees thereto to acquire CES or CSE eligibility before acquiring security of tenure will lead to unconstitutional and unlawful consequences. It will result either in (1) vesting the appointing power for non- CES positions in the President, in violation of the Constitution; or (2) including in the CES a position not held by presidential appointee, contrary to the Administrative Code[35]
For years, the Commission has promulgated several policies and issuances identifying positions in the Career Service above Division Chief Level performing executive and managerial functions as belonging to the Third Level covered by the Career Executive Service (CES) and those outside the CES, thus, requiring third level eligibility for purposes of permanent appointment and security of tenure.Thus, petitioner can no longer invoke Section 1(b) of Memorandum Circular (MC) No. 21, it being inconsistent with the afore-quoted Office Memorandum and thus deemed repealed by no less than the CSC itself.
However, the issue as to whether a particular position belongs to the Third Level has been settled by jurisprudence enshrined in Home Insurance and Guaranty Corporation v. Civil Service Commission, G.R. No. 95450 dated March 19, 1993 and Office of the Ombudsman (OMB) v. Civil Service Commission; G.R. No. 162215 dated July 30, 2007, where the Honorable Supreme Court ruled citing the provision of Section 7(3) Chapter 2, Title I-A, Book V of Administrative Code of 1987, that the Third Level shall cover positions in the Career Executive Service (CES). Positions in the Career Executive Service consists of 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 (CESB), all of whom are appointed by the President. To classify other positions not included in the above enumeration as covered by the CES and require appointees thereto to acquire CES or CSE eligibility before acquiring security of tenure will lead to unconstitutional and unlawful consequences. It will result either: in (1) vesting the appointing power for non-CES positions in the President, in violation of the Constitution; or, (2) including in the CES a position not held by presidential appointee, contrary to the Administrative Code.x x x
While the above-cited ruling of the Supreme Court refer to particular positions in the OMB and HIGC, it is clear, however, that the intention was to make the doctrine enunciated therein applicable to similar and comparable positions in the bureaucracy. To reiterate, the Third Level covers only the positions in the CES as enumerated in the Administrative Code of 1987 and those identified by the CESB as of equivalent rank, all of whom are appointed by the President of the Philippines. Consequently, the doctrine enshrined in these Supreme Court decisions has ipso facto nullified all resolutions, qualification standards, pronouncements and/or issuances of the Commission insofar as the requirement if third level eligibility to non-CES positions is concerned.
In view thereof, OM No. 6, series of 2008 and all other issuances of the Commission inconsistent with the afore-stated law and jurisprudence are likewise deemed repealed, superseded and abandoned. x x x[36] (Emphasis supplied)
Sec. 6. x x x. Reassignment shall be governed by the following rules:Petitioner claims that respondent was not appointed to a station-specific position because his appointment paper, CS Form No. 33, does not indicate any specific work station.[39] This being the case, he is entitled to security of tenure with respect only to the position of Vice President, and he may be reassigned from his original assignment in the VisMin Operations & Maintenance to his new assignment in the Power Systems Reliability Group.[40] On the other hand, the Court of Appeals, relying on Board Resolution No. TC 2003-2007, which indicated that respondent's appointment was to the position of Vice President under "Item No. 700010-VisMin Operations and Maintenance," held that his appointment was station-specific.[41]
- These rules shall apply only to employees appointed to first and second level positions in the career and non-career services. Reassignment of third level appointees is governed by the provisions of Presidential Decree No. 1.
- Personnel movements involving transfer or detail should not confused with reassignment since they are governed by separate rules.
- Reassignment of employees with station-specific place of work indicated in their respective appointments shall be allowed only for a maximum period of one (1) year. An appointment is considered station-specific when the particular office or station where the position is located is specifically indicated on the face of the appointment paper. Station-specific appointment does not refer to a specified plantilla item number since it is used for purposes of identifying the particular position to be filled or occupied by the employee.
- If appointment is not station-specific, the one-year maximum shall not apply. Thus, reassignment of employees whose appointments do not specifically indicate the particular office or place of work has no definite period unless otherwise revoked or recalled by the Head of Agency, the Civil Service Commission or a competent court.
- If an appointment is not station-specific, reassignment to an organizational unit within the same building or from one building to another or contiguous to each other in one work area or compound is allowed. Organizational unit refers to sections, divisions, and departments within an organization.
- Reassignment outside geographical location if with consent shall have no limit. However, if it is without consent, reassignment shall be for one (1) year only. Reassignment outside of geographical location may be from one Regional Office (RO) to another RO or from the RO to the Central Office (CO) and vice-versa.
- Reassignment is presumed to be regular and made in the interest of public service unless proven otherwise or if it constitutes constructive dismissal x x x
a) Reassignment of an employee to perform duties and responsibilities inconsistent with the duties and responsibilities of his/her position such as from a position of dignity to a more servile or menial job; b) Reassignment to an office not in the existing organizational structure; c) Reassignment to an existing office but the employee is not given any definite duties and responsibilities; d) Reassignment that will cause significant financial dislocation or will cause difficulty or hardship on the part of the employee because of geographical location; and e) Reassignment that is done indiscriminately or whimsically because the law is not intended as a convenient shield for the appointing/disciplining authority to harass or oppress a subordinate on the pretext of advancing and promoting public interest.[38] [Emphasis supplied).
The pertinent portions of Board Resolution No. TC 2003-007 read, thus:Republika ng Pilipinas
NATIONAL TRANSMISSION CORPORATION
Diliman, Lungsod ng Quezon
MR. VENUSTO D. HAMOY, JR.
National Transmission Corporation
Diliman, Quezon City
MR. HAMOY:
Kayo ay nahirang na (VICE PRESIDENT JG-18) (VICE PRESIDENT SG-28) na may katayuang PERMANENT sa Pambansang Korporasyon sa Transmisyon sa pasahod na EIGHT HUNDRED FIFTY SIX THOUSAND THREE HUNDRED TWENTY PESOS ( P856,320) piso. Ito ay magkakabisa sa petsa ng pagganap ng tungkulin subalit di aaga sa petsa ng pagpirma ng puno ng tanggapan o appointing authority.
Ang appointment na ito ay REEMPLOYMENT PURSUANT TO TRANSCO BOARD RES. NO. 2003-07 DATED 2/5/03 bilang kapalit ni N/A na N/A at ayon sa Plantilya Item Blg. 7000010 CY2003, Pahina ______.[42] (Emphasis supplied)Sumasainyo,
ALAN T. ORTIZ, Ph.D.
President & CEO
Puno ng Tanggapan
MAR 01 2003
Petsa ng Pagpirma
In other words, it is clear from the filled-up Form No. 33 or the letter of appointment that the appointment was issued pursuant to Board Resolution No. TC 2003-007. The appointment paper's explicit reference to the Board Resolution, which in turn cited "Item No. 700010-VisMin Operations & Maintenance," indicated that respondent's work station was the VisMin Operations & Maintenance. As "VisMin" stands for the Visayas-Mindanao, the Vice-President for VisMin Operations, who is respondent, necessarily has to hold office in Cebu where petitioner has offices for its Visayas-Mindanao Operations.RESOLUTION NO. TC 2003-007 xxx
WHEREAS, after careful evaluation and deliberation of the qualifications of the applicants consistent with the Board's Guidelines, the following executives are hereby appointed as follows:a) x x x
x x x
j). Item No. 700010-VisMin Operations &Maintenance-Mr. Venusto D. Hamoy, Jr.
APPROVED AND CONFIRMED, February 5, 2003.[43] (Emphasis supplied)