CASE DIGEST: DE LEON vs. CA. G.R. No. 127182, January 22, 2001

FACTS:

Respondent Atty. Montesa, who is not a Career Executive Service Officer (CESO) or a member of the Career Executive Service, was appointed as "Ministry Legal Counsel - CESO IV in the Ministry of Local Government" (now DILG), by then Minister Pimentel. Atty. Montesa's appointment was approved as permanent by the CSC.

On July 25, 1987, then President Aquino promulgated EO 262, reorganizing the DILG. On April 8, 1988, then Secretary Santos, who succeeded Minister Pimentel, designated Patricio as chief of Legal Service in place of Montesa who, in turn, was directed to report to the office of the Secretary to perform special assignments.

Montesa filed a petition for quo warranto against then Secretary Santos and Patricio. The court ruled in favor of Montesa and ordered his reinstatement to his former position.

Meanwhile, the Salary Standardization Law took effect on July 1, 1989. Pursuant thereto, the position of "Department Service Chiefs," which include the Department Legal Counsel, was reclassified and ranked with "Assistant Bureau Directors" under the generic position title of "Director III".

In 1994, then Secretary Alunan III issued DO No. 94-370, relieving Montesa of his current duties and responsibilities and reassigning him as "Director III (Assistant Regional Director), Region XI,".

Montesa, however, did not report to his new assigned position. Instead, he filed a 90-day sick leave, and upon the expiration thereof, he submitted a memorandum for then acting Secretary Aguirre, signifying his intention to re-assume his position as Department Legal Counsel/Chief, Legal Services. The memorandum was denied the same with his motion for reconsideration.

Private respondent appealed to the CSC, but the latter sustained his reassignment to Region XI, on the ground that the subject reassignment was not violative of the due process clause of the Constitution or of Montesa's right to security of tenure; the reassignment did not entail any reduction in rank or status and that Montesa could be reassigned from one station to another without his consent as the rule against unconsented transfer applies only to an officer who is appointed to a particular station, and not merely assigned thereto.

With non-compliance of his reassignment, Montesa was dropped from the roster of public servants for serious neglect of duty and absences without leave (AWOL).

ISSUE:

Whether a person who lacks the necessary qualification (eligibility) for a public position be appointed to it in a permanent capacity.

RULING:

No. It must be stressed that the position of Ministry Legal Counsel – CESO IV is embraced in the Career Executive Service. Under the Integrated Reorganization Plan, appointment thereto shall be made as follows:

Appointment to appropriate classes in the Career Executive Service shall be made by the President from a list of career executive eligible recommended by the Board. Such appointments shall be made on the basis of rank.

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 qualifies in such examination.

At the initial implementation of this Plan, an incumbent who holds a permanent appointment to a position embraced in the Career Executive Service shall continue to hold his position, but may not advance to a higher class of position in the Career Executive Service unless or until he qualifies for membership in the Career Executive Service.

The required Career Executive Service eligibility may be then acquired by passing the CES examination that will entitle the examinee to a conferment of a CES eligibility and the inclusion of his name in the roster of CES eligible.

In the case at bar, there is no question that Montesa as he admits does not have the required CES eligibility.

Settled is a rule 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.

The mere fact that a position belongs to the Career Service does not automatically confer security or 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 eligible. The appointment extended to him cannot be regarded as permanent even if it may be so designated.

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