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REPUBLIC OF THE PHILIPPINESCIVIL SERVICE COMMISSIONConstitution Hills, Quezon City
JUAN MIGUEL LUZ , Appellant,
-versus- Case No.
THE EXECUTIVE SECRETARYEDUARDO ERMITA , Appellee.
x---------------------------
Prefatory Statement
Integrity, competence, love of country and dedication to
public service are qualities expected of all public servants. Yet,
those who possess these are often not only unrewarded, but also
punished for standing up for their principles. In a government
where politics can kill a public servants dedication and
enthusiasm for service, the principles of merit, tness, and
security of tenure as well as the rules of the Civil Service
Commission are often on a collision course with the demands of
politics and politicians.
This Appeal by Juan Miguel Luz is a classic case of a good
and honest civil servant, a Career Service Executive Officer, who
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suffers the punishment of termination and later, a transfer, from
no less t han the Office of the President for refusing to perform an
unlawful act and for do ing what he believed was r ight.
The Appellant les this Appeal in the fervent hope that the
resolution of the issues in this case will enrich law and
jurisprudence, instill belief in justic
few who remain vigilant in their g ht against corruption.
The Case
This is an appeal from the Order of the Honorable Executive
Secretary re assigning Appellant Juan Miguel Luz, a Career Service
Executive Officer an d Undersecretary, Finance & Administration of
the Department of Education (hereafter called DepED), to the
Department of Labor and Employment (hereafter called DOLE).
Timeliness of the Appeal
The Appellant received a copy of the Memorandum of the
Appellee Executive Secretary Eduardo Ermita (hereafter called
Executive Secretary) on 04 October 2005, hence this Appeal is
being led on time. A certied true copy of this memorandum is
attached as Annex A .
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The Parties
APPELLANT Juan Miguel Luz (hereafter called Appellant)
is a Filipino, of legal age, residing at 326 St. Joseph Street, North
Concha Cruz Circle, B.F. Executive Homes, Las Pinas City. He is a
Career Service Officer (CESO) and is fully qualied for t he position
of Undersecretary of Education (Finance & Administration) which
he is currently occupying. A certied true copy of his CESO
certication is attached as Annex B. Appellant may be served
with copies of pleadings, notices, orders and other issuances of
this Honorable Office through undersigned counsel.
APPELLEE Eduardo Ermita (hereafter referred to as the
Appellee) is the Executive Secretary who signed the order
reassigning the Appellant to the DOLE.
Facts of the Case
The AppellantsQualications
1. Appellant has sterling qualications for the position of
Undersecretary of the DepED. His previous employment with
Government prior to his position in the DepED was with the
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Presidential Management Staff (Office of the President) during the
Administration of President Corazon C. Aquino. Outside of
government, the Appellant was the associate director of Philippine
Business for S ocial Progress (hereafter ref erred to as PBSP), the
largest social development NGO in the country, and in was a
professor at the Asian Institute of Management, one of Asias
leading business sch ools.
2. As the associate director of PBSP from 1985-87 and
1993-95, he headed training, research and programs development
and organized and led the team that drafted the management plan
for the Third Elementary Education Project (TEEP) of the
Department of Education, Culture and Sports funded by the World
Bank.
3. In 1987, he was appointed Presidential Staff Director of
the Presidential Management Staff in the Office of the Presient
(hereafter referred to as PMS) during the administration of
President Corazon C. Aquino, where he stayed until mid-1991. As
head of the Regional Operations Group and the Political Affairs
Group, he worked on a number of major projects including local
government autonomy and the establishment of the Autonomous
Region in Muslim Mindanao. Because of his experience with
PBSP, he was tasked with setting up the newly created Presidents
Social Fund (PSF), the sou rce of the post-dated checks that gured
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in the events antecedent to the Appellants termination and
subsequent reassignment from the DepED to the Department of
Labor and Employment (DOLE).
4. In January 1991, Appellant became a C areer Executive
Service Officer upon the general instruction of President Aquino
that all presidential appointees secure a CESO eligibility and rank
to shield them from the vagaries of political processes and
changes in presidential administrations and their particular
concerns related to appointments. (See Annex B h ereof.)
5. After four years i n government, Appellant returned to the
private sector. From 1995-97, he was vice president for corporate
affairs at the Far East Bank and Trust Company. From 1998 to
February 2002, he served as director of operations of the APEC
Business Advisory C ouncil, the private sect or ad visory b ody to the
APEC Leaders. Concurrently, he was also an Associate Professor at
the Asian Institute of Management from 1997 to 2002.
6. As part of his community work, the Appellant served as
executive director of the Philippine National Museum Foundation,
a private sector foundation that r aised funds for t he renovation of
the National Museum in time for the countrys Centennial
celebrations in 1998. He also served as trustee of the Heritage
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Conservation Society of the Philippines for two terms and is
currently a trustee of Museo Pa mbata ng Pilipinas .
7. With a Bachelors Degree in Liberal Arts from St. Marys
College of California 1 , a La Salle Christian Brothers institution,
and a Masters Degree in Public Administration from the John F.
Kennedy School of Government, Harvard University, 2 Appellant has
expertise in the elds of community development, government
policy, business strategy and administration, and education
management. This is the reason why former DepED Secretary
Edilberto de Jesus invited him to rejoin government as
Undersecretary of Education in late 2002. Appellant accepted the
offer because he wanted to serve his country by contributing to
reforms in the DepED, which in the mid-to-late-1990s had the
reputation of being one of the most corrupt agencies in
government.
8. Appellant reactivated his CESO rank as conrmed by the
Career Executive Service Board. He took charge of the Finance an d
Administration of the DepED in November 2002. After Secretary
de Jesus left the DepED in August 2004, the Appellant continued
to serve under former Secretary Florencio B. Abad and OIC
Secretaries Ramon C. Bacani and Fe A. Hidalgo, successively.
1 He graduated magna cum laude and garnered two awards for academicexcellence James L. Hagerty Award (School of Liberal Arts) and St. ThomasA uinas Award (!ntegral "rogram).2
He was an #dward S. $ason %ellow in !nternational &e'elo ment.
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Appellants contributionsto reform in the DepED
9. Appellant carried out major reforms in the areas of
nance and management systems. Notable among these were:
Providing direct funding releases from the
National Treasury to scally-autonomous high
schools and school divisions through the Direct
Release System;
Establishing the DepED Procurement Service;
Drafting of a new textbook policy, as well as
designing and organizing the National Textbook
Delivery Program to ensure the timely delivery of
over 50 million quality textbooks to close to
42,000 elementary schools;
Decentralizing the payroll service of elementary
school teachers;
Fixing the a utomatic p ayroll deduction system;
Re-engineering the Departments Provident
Funds 3 in order to have a professional system
Forming Brigada Eskwela (National Schools
Maintenance Week), a project undertaking minor
repairs of schools involving various school
stakeholders, the local community, local
3 The &e artment "ro'ident %und has a nationwide ortfolio of " . *illion in
+ regions)
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government units and the private sector.
Brigada Eskwela signicantly minimized
problems en countered during school openings
10. Since 2002, education reforms, both in terms of
nancial management and support to academic programs of
schools, have helped establish the image of the Department of
Education as one of the ve least corrupt national agencies in the
Social Weather Stations annual Enterprise Survey. This h as been
cause for great pride in DepED considering that it was formerly
one of most corrupt agencies in the su rvey prior t o that period. 4
11. In sum, the Appellant is a h ighly-educated, competent,
honest, and dedicated public servant. His knowledge, competence
and integrity enabled him to generate signicant nancial and
material support from the private sector for schools under the
Departments Adopt-a-School program.
12. Then came a den ing moment in the Appellants career
in the DepED. His integrity was put to a t est when he was asked
to accept post-dated checks amounting to P 20 Million from the
Office of the President purportedly intended for a scholarship
4 &uring the entire ",$A Administration- no rocurement- ersonnel ornancial scandal has roc/ed the &e artment. The lone scandal attributed tothe &e artment in'ol'ed a contro'ersial error0laden textboo/ rocured adecade ago but which are still in the schools. The &e artment recalled thetextboo/ and ut in lace a tighter textboo/ e'aluation rocess to re'ent
such errors from recurring in ublic school textboo/s in the future.
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program of a congressman. Believing that these were against
government accounting and auditing rules as they were devoid of
documentation, he refused to do what he considered as highly
irregular an d contrary t o law. On September 9, 2005, the Appellant
decided to do the right thing and returned the checks to
Malacanang. As the events unfolded, Malacanang lost no time in
punishing him.
Terminated byMalacanang
13. Appellants worries started on 13 September 2005, when
his office rec eived a letter from the Executive Secretary that read:
We wish to thank you for your services as Undersecretary,
Department of Education, effective immediately. A copy of this
letter i s attached as Annex C . Stunned by what was apparently
a termination letter, he sent a query to the Civil Service
Commission on 20 September 2005 asking whether or not he was
terminated and if such was p roper.A copy of this letter is a ttached
as Annex D .
14. On 21 September 2005 Civil Service Commission
(hereafter referred to as CSC) Chairperson Karina Constantino-
David wrote h im a letter st ating that:
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For an undersecretary p osition, the qu alications a re:Bachelors degree, three (3) years supervisoryexperience and Career Service Executive Eligibility(CSEE) or Career Executive Eligibility (CESE).
Considering that you have met all the saidrequirements, the status of your appointment ispermanent. As su ch, you have security of tenure to thesaid position.
As a permanent official, you cannot be removed from your position by virtue of a mere letter. You may only be removed for cause as provided for by law, and after
due process. Considering that t he termination letterdid not mention any cause or reason for yourtermination, it is obvious that the Office of thePresident was working under the mistaken assumptionthat your appointment was not permanent and thus,
you may be separated from the service anytime or at amoments notice.
A copy of Chairperson Karina Constantino-Davids letter is
attached as Annex E .
15. On the sam e date, also responding to Appellants query,
Career Executive Service Board (hereafter referred to as CESB)
Executive Director Mary Ann Fernandez-Mendoza replied that
since the Appellant did not r esign from his p osition, the letter f rom
the Office of the President could not be taken to mean termination
from the ser vice, and that the Appellant may continue performing
his functions as Undersecretary of DepED. A copy of this letter is
attached as Annex F .
16. Appellant immediately prepared a letter informing the
Office of the President that he was going to continue to perform his
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duties and functions as Undersecretary of DepED with no
disrespect intended, and his con cerns were focused principally on
continuing and expanding education reforms. A copy of this letter
is a ttached as Annex G .
17. Two days later, on 23 September 2005, Malacaang
announced to the m edia that appellant had been terminated as
undersecretary (of education) but not as a CESO. This was
modied as to be a reassignment to some other government
position of same rank. This was again modied by the Press
Secretary, who stated that Appellant had resigned as
Undersecretary. On the evening of 26 September 2005, the Press
Secretary was heard on radio stating that appellant was being
allowed to stay as Undersecretary of education. Copies of the
newspaper clippings are attached as Annexes H , H-1 , and H-
2 .
18. On 4 October 2005, Appellant received a M emorandum
from the Appellee dated that same day that read: In the exigency
of service, you are hereby re-assigned from the Department of
Education (DepED) to the Department of Labor and Employment
(DOLE) to a position at least commensurate to your Career
Executive Service (CES) rank. (See Annex A )
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Malacanangspost dated checques
19. The termination letter of the Executive Secretary
received on 13 September 2005 and the Memorandum dated 4
October 2005 were no doubt sparked by the refusal of the
Appellant to accept the POST-DATED checks from the Presidents
Social Fund (hereafter r eferred to as PSF) which were intended for
the scholarship program of Congressman Antonio Diaz (2nd
District, Zambales).
20. On 23 August 2005, the DepED received a letter from
Congressman Diaz stating that President Arroyo had approved P20
Million from the PSF to be used for the congressmans sch olarship
fund in the 2nd District of Zambales. Included in the letter was t he
rst P5 Million as a handwritten check drawn against an
unmarked non-commercial account in the Land Bank branch in
Malacaang. A copy of this letter and the proof that this check
was deposited to the DepED OSEC Trust Account is attached as
Annexes I and I-1.
21. The DepEDs Chief Accountant, Mrs. Olivia San Pablo,
immediately called the Appellant to ask what to do with the check.
Baffled, he requested her to show him the check signed by Deputy
Executive Secretary (DES) Susana Vargas with the handwritten
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Appellant that she was not privy to the Presidents deci
PSF but that the Fund was d isbursed solely at the discretion of the
President. Hence, she continued, the scholarship project as
discussed by the congressman must have been in accordance with
the Presidents instructions.
25. Upon the request of DES Vargas, Appellant agreed to
have the rst P5 Million check deposited into the DepED central
office trust fund but then instructed Ms. San Pablo, DepED chief
accountant, not to transfer an y funds to the Division of Zambales
until the Department received in writing a clear p rogram of work
and the process of disbursement and liquidation from the
congressmans office.
26. On 2 September 2005, three similar checks of equal
amount (P5.0 M each) were forwarded to the DepED accounting
office from the Presidential Management Staff for deposit and
transfer to the sa me d ivision of Zambales. The dates on these p ost-
dated checks were 3 September 2005, 3 December 2005, and 3
March 2006. A certied true copy of these checks are attached as
Annexes J . The Appellant noticed that all three were similarly
handwritten as the rst check in August though they now bore two
signatures, those of DES Susana Vargas and Erlinda Bautista de
Leon as h ead of the PSF.
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27. The DepED accountant reported to the Appellant that
there was no accompanying documentation with the checks,
neither a Special Allotment Release O rder (SARO) 5 nor a Notice of
Cash Allocation (NCA) 6. Moreover, upon checking with both the
Department of Budget and Management (DBM) and the
Commission on Audit (COA), she conrmed that the acceptance of
post-dated checks a re against government rules on accounting and
auditing procedures. Upon the requ est of the Appellant in a letter
dated 06 September 2005, COA Assistant Commissioner Arcadio
Cuenco wrote a letter s tating that:
Please be informed that t he issuance and/or receiptof post-dated checks by government agencies isprohibited under GAO Circular No. 68-110 datedOctober 10, 1968 pertinent portion of which states:
Checks presented for payment must bedrawn by the payor himself and madepayable to the agency or h ead of agencyUnder no circumstance sh all the followingchecks be accepted: (a) checks drawnpayable to the name of the agency head orany of its officers, (b) indorsed checks, (c)postdated checks , (d) stale checks, an d(e) out-of-town checks, except those whichare drawn by the Government or itsinstrumentalities. (emphasis supplied)
A certied copy of the letter of the to COA is attached as
Annex K . A certied copy of the letter of the Commission on
Audit to the Appellant is attached as Annex L . 5 The SARO is the notice from the DBM to a e!artment that informs the "atter that f#n s are no$a""otte an can %e o%"i&ate ' (n effect) the SARO !ro*i es the e!artment $ith the a#thorit+ tos!en f#n s'
6 The ,-A is the notice from the DBM that the cash has %een e!osite or transferre to theacco#nt of the e!artment an can %e ra$n a&ainst' On"+ at this !oint in time can a chec. %e
!re!are an /or re"ease to the !a+ee'
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28. On 6 September 2005, the Appellant received a letter
from Congressman Antonio Diaz dated 5 September 2005
requesting for the transfer of the two cleared checks (21 August
2005 and 3 September 2005) from the DepED central office trust
account to the DepED Division Office of Iba, Zambales. A cer tied
true c opy of this l etter i s a ttached as Annex M .
29. Appellant called DES Vargas on 7 September 2005 to
inquire about the post-dated checks she signed personally
delivered by the congressmans staff. Her reply was st artling. She
sounded perplexed by the Appellants query and asked what the
dates were on the checks. When asked why she did not know the
dates on the checks being the signatory, she told the Appellant
that she usually pre-signed blank checks for the PSF but would
give these directly to the President. She said she was not privy
thereafter t o the d etails o f the ch ecks nor of the p rojects for which
they were intended. Furthermore, she could not understand nor
explain why two of the checks would be post-dated.
30. On the same day the DepED Chief Accountant called
the Appellant with another urgent matter. The Presidential
Management Staff called her and Mr. Mandy Ruiz, the
departments Chief Budget Officer, to inquire if another PSF check
could be deposited directly to the division of Zamboanga del Sur
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for the projects of Congressman Isidro Real, thus by-passing the
central office in an effort to cut down on the overall processing
time for the ch eck.
31. On 08 September 2005, Ms. Maestre of Congressman
Diazs office came to inquire if DepEd had deposited the rst two
checks and if these could already be transferred to the division
office. The Appellant, not wanting to veer from the proper
accounting and auditing procedures, decided to return the four
checks to the Presidents Social Fund including the rst one (21
August 2005) already deposited into the DepED central office trust
account and called the departments Chief Accountant, Chief
Budget Officer and Cashier to his office. The official receipt for the
second check (3 September 2005) was can celled since this official
receipt ha d not yet been given to the Office of the President/PMS
and the check had yet to be deposited into the departments t rust
account.
32. Early on 9 September 2005, Friday, a staff of PMS was
in the Appellants office waiting to pick up the three checks. The
appellant cal led Director Marietta Tamondong of the Presidential
Management Staff and informed her that the amount in the rst
check which had already been deposited would likewise be
returned to PSF but through a DepED check. A certied copy of
the letter documenting the return of the checks is attached as
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Annex N . That s ame day, Appellant informed OIC-Secretary Fe
Hidalgo of these developments and she concurred with his
decision.
33. The day before, Ms. Yvonne Chua of the Philippine
Center f or Investigative J ournalism (hereafter r eferred to a s PCIJ),
having heard of the post-dated checks from her Malacaang
source, came to see t he Appellant to conrm if there were in fact
such checks received by the Department. This was conrmed by
the Appellant. On 11 September 2005, Sunday, she posted the
story on the PCIJ weblog site which became a source of news for
other m edia organizations.
34. Deciding to return all of the checks that constituted the
P20M grant given to Congressman Diaz by t he President through
the Presidents Social Fund, the Appellant, on 10 September 2005
cancelled the Disbursement Voucher for the rst P5.0 M and
instructed Mrs. San Pablo, chief accountant, to return the am ount
to the PSF using a DepED check. A certied copy of the cancelled
voucher with the Appellants marginal note (written instructi
attached as Annex O .
35. On 12 September 2005, the Appellant left for the United
States for a conference in New York City. That same day, the PCIJ
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blog appeared in the Philippine Star. While the Appellant was in
the United States, OIC-Secretary Fe Hidalgo received a letter from
Cong. Antonio Diaz dated 13 September requesting for the release
of the rst P5.0 M (date 21 August 2005). This was eventually
released upon the instructions of OIC-Secretary Hidalgo. A
certied true copy of Cong. Diaz letter is attached as Annex P.
After the release of this amount, the DepED received a Deed of
Donation for the sam e P5.0M signed by Cabinet Secretary Ricardo
Saludo and Undersecretary Ramon Bacani of the DepED,
notarized on 15 September 2005. A certied copy of this Deed of
Donation is at tached as Annex Q .
36. The next day, on 13 September 2005, the DepED
received the letter of termination of the Appellant from the
Executive Secretary. The OIC-Secretary cal led the Appellant on 16
September 2005 while he was still in New York to relay the news.
It will be noted that t he letter of C ong. Diaz (See Annex N ) was
received by the DepEd on that same day, 13 September 2005.
37. On 4 October 2006, Appellant received a M emorandum
signed by Executive Secretary Eduardo Ermita reassigning him
to the Department of Labor and Employment (DOLE), without
specifying a position or a denite period. On the same day, the
Appellant received a letter from DOLE Secretary Patricia Santo
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Tomas dated 23 September 2005, stating that since the Appellant
was being moved from the DepED, she was requesting that he be
reassigned to her department. A certied true cop y of this letter is
attached as Annex R .
38. Hence, the Appellant les this Appeal contesting his
reassignment to the DOLE.
Arguments/Issues
I.
APPELLANT WAS CONSTRUCTIVELYDISMISSED
II.
THE ORDER REASSIGNING THE APPELLANT TO THE DOLE WAS DONE WITH GRAVE ABUSE OF DISCRETION, THEREFORE UNLAWFUL
Appellant, a CESO, may be reassignedor transferred only if the followingrequirements are met: a) thereassignment or transfer must be in theinterest of public service, b) withoutreduction in rank or salary, and c) noreassignment or transfer may be madeoftener than every two years, d) thereassignment or transfer must beeffected only upon the availability of acorresponding position.
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III.
APPELLANTS TRANSFER WAS DONE INBAD FAITH, AND OBVIOUSLY FORPOLITICAL REASONS
D i s c u s s i o n
I. Appellant was constructively dismissed
39. The 4 October 2005 Memorandum mandating the transfer
of Appellant states that :
In the exigency of service, you are hereby re-assigned from the Department of Education (DepEd) tothe Department of Labor and Employment (DOLE) to aposition at least commensurate to your CareerExecutive Service rank. (Emphasis su pplied)
40. The Memorandum, although purportedly merely
reassigning the Appellant to the DOLE, was obviously meant to
kick him out of DepED because of his refusal to tow Malacanangs
line. Especially when viewed in the con text of the an tecedent facts,
this transfer or reassignment is in reality a constructive
dismissal because the Memorandum does not specify what
position the Appellant will occupy in the DOLE and for how long he
would be reassigned there.
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41. Furthermore, there is at pres ent no vacant or available
position of Undersecretary in the DOLE. Without such a position,
the apparent intent of Malacanang is to oat the Appellant as a
punishment, which is n ot allowed by the Civil Service Commission
(See, CSC Resolution No. 548, Aug. 10, 2004). Because the
purpose of the transfer order was to put Appellant on oating
status, the Appellant is deemed to be have been constructively
dismissed. This especi ally so si nce the Appellant would then nd
his si tuation in the DOLE intolerable and humiliating su ch that he
would have to eventually resign from the government service.
42. The Constitution guarantees that no officer or employee
in the Civil Service shall be d ismissed except for ca use a s p rovided
by law. 7 This was b latantly violated by the Appellee, and his gross
bad faith, driven by political motive, is clear
facts. Furthermore, the Supreme Court has held in the case of
Pastor vs. Pasig 8 that an indenite assignment, such as that of
Appellant, is tantamount to a constructive dismissal. In sa
petitioner, a budget officer, was a ssigned to Office of the Municipal
Administrator indenitely. Her assignment was allegedly pending
the investigation of reports that sh e issued advice of allotments
without sufficient cash collection. In her ten-year assignment,
however, no investigation therefore was ever conducted. The
Supreme Court found such indenite assignment as a form of
7 Art' ( B) Sec' 2 3 ) 1987 -onstit#tion'8
382 S CRA 232 (2002).
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constructive dismissal which left petitioner vi rtually on a oating
status. Moreover, the Supreme Court held that an employees
illegal removal cannot b e carried out in the guise of a transfer for
the good of public servi ce, thus:
There is no question that we recognize the validity and indispensable necessity of the well
established rule t hat for t he good of public se rvice and whenever public interest demands, [a] public official
may be temporarily a ssigned or d etailed to other du tieseven over his objection without n ecessarily violatinghis fundamental and legal rights to security of tenurein the civil service. But as we have already stated,such cannot be undertaken when the transfer of theemployee is with a view to his removal and if thetransfer is resorted to as a scheme to lure theemployee away from his permanent position becausesuch attitude is improper as it would in effect result
in a circumvention of the prohibition which safeguardsthe tenure of office of those who are in the civilservice. 9
43. Similarly, in Gloria vs. Court of Appeals 10 and Padolino
vs. Fernandez, 11 the Supreme Court held that an indenite
assignment, i.e. one which does not indicate a particular d uration
or does not appear to be temporary, violates a civil servants
security of tenure.
44. In addition, in Bentain vs. Court of Appeals, 12 the
Supreme Court did not hesitate to declare a transfer motivated by
purposes other than the exigencies of public interest as
tantamount to an illegal dismissal. In the s aid case, petitioner, the
9 Citing Cruz. Vs. Navarro, 66 SCRA 79, 90 (1975).10 338 SCRA 5.11 342 SCRA 442.12
G.R. No. 89452, June 9, 1992.
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are met, and always in good faith. While the Appellee has the
authority to transfer a CESO, he cannot do so in grave abuse of
discretion. The application of the mobility principle to CESOs was
specically laid down in the Revised Policy on Security of Tenure in
the C areer E xecutive S ervice (Revised Policy), 14 to wit:
RESOLVED FURTHER , that notwithstanding thepermanent status of appointment of a third levelofficial, he/she is covered by the mobility principleenshrined under Article IV, Part III of the IntegratedReorganizational Plan, as approved by PresidentialDecree No. 1, as amended, dated September 24, 1972,quoted herein as follows:
e. Assignments, Reassignments and Transfers
x x x x x x x x x
Any provision of law to the contrarynotwithstanding, members of the CareerExecutive Service may be reassigned ortransferred from one position to another;provided that such reassignment ortransfer is m ade in the interest o f publicservice and involves no reduction in rankor salary; provided, further, that nomember shall be reassigned or transferredoftener than every t wo yea rs.
RESOLVED FURTHERMORE, to ensure compliance to(sic) the above-quoted mobility principle, reassignmentor transfer shall be effected only upon theavailability of the corresponding position , i t b eing
understood that a oating status is not within thecontemplation of this p rinciple. Assignment to a CESOpool shall not be considered as a oating status.(Emphasis supplied)
14
Career Executive Service Board Resolution No. 548, August 10, 2004.
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46. Based on the foregoing resolution, the reassignment or
transfer of a CESO must comply with the following requ isites:
a. It must be made in the interest of public service;
b. It must involve no reduction in rank or salary;
c. It must not be made within two years from the
employees last transfer or r eassignment; and
d. It must be effected only upon the availability of a
corresponding position.
47. The Office of the President, represented by the Appellee,
miserably failed to satisfy th e rst and the fourth requisite. Worse,
its action reeks of the unmistakable smell of malice. The
Appellees mere invocation of the clause in the exigency o
does not m ake the Appellants transfer lawful, in the absence of
any convincing proof thereof. The burden of proof is on the part of
the Appellee who seeks to deprive the Appellant of his work, his
right to property.
48. That Appellant is purportedly needed at the DOLE, as
Secretary Patricia Sto. Tom as claims in her letter t o Appellee, is
NOT an exigency of service which warrants Appellants transfer.
Secretary Sto. Tomas letter itself belies any pretense that the
transfer ord er of the Appellant was in the interest of public se rvice.
On the contrary, said letter acknowledges that Appellee already
sought to remove Appellant from the DepED from the very start,
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September 2005. There is no vacant or available Undersecretary
position in the DOLE. In addition, DOLE is allowed three (3)
plantilla Assistant Secretary positions, two (2) of which are a lready
lled-up.
52. The fourth requisite for a lawful transfer of a CESO was
likewise vi olated by the Appellee. If the Appellant is transferred to
DOLE, he will be placed in a humiliating situation because h e will
not get the same rank and status of Undersecretary. Given the
situation of both departments, how can the DOLEs need for
Appellants services take priority over that of
53. Moreover, the Office of the President could not possibly
be blind to the successful reforms spearheaded by the Appellant in
the DepEd, particularly on scal and administrative management.
With Appellants outstanding performance, his transfer to another
department with a completely different and unrelated function for
which he was not trained all the more becomes illogical.
54. It is therefore n ot d ifficult to conclude that Appellants
honesty, professionalism and independence in the performance of
his duties a s the Undersecretary in charge of the nances of the
government agency with the biggest budget, having P118 Billion as
of 2004, prompted the Office of the President to underhandedly
remove him from the DepEd. And for what purpose? Not only to
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punish him, but to serve also as a lesson to others who may be of
like m ind.
55. While t he t ransfer of Career E xecutive Service Officers is
allowed, this can be lawfully done only if the above-mentioned
requirements are existing, and always in good faith. We can be
guided by a case w ith similar issues involving the t ransfer of Atty.
Virgina L. Trinidad, CESO IV, who was an Assistant Commissioner
in the Bureau of Internal Revenue, who was reassigned to a
position that does n ot exist. In the ca se o f Trinidad, Virginia L. Re
Appeal, Reassignment, the CSC ruled in favor of the Appellant in
its Resolution No. 030669 ( 10 June 2003), stating that:
While it is true that reassignment is amanagement prerogative which the Commission doesnot n ormally interfere with, the same is true only, asheld in CSC Resolution No. 96-3651, absent theshowing of grave abuse of discretion. In other words,grave abuse of discretion must be clearly shown inorder that the Commission may take up the cudgelsfor the employee reassigned (MONTIEL, Rolando, CSCResolution No. 94-1006, February 17, 1994. Theauthority under the law is not intended as aconvenient weapon for the appointing authority toharass or oppress a subordinate on the pretext ofadvancing and promoting public interest (INHAYES,Oscar J., CSC Resolution No. 98-16-08, June 24,1998).
III. Appellants transfer was done in bad faith, and obviously for political
reasons
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56. A careful examination of the even ts t hat t ranspired prior
to Appellants t ransfer cl early shows th at Appellees a ct was t ainted
with bad faith, motivated by purely political reasons ui
the Appellant was removed because he was an obstacle to the
wishes of the President that she distributes the Presi
Fund with no restrictions, and even when funds a re not available,
hence the post-dated checks. The Palace demands blind
obedience, and this t he Appellant could not give.
57. Appellee very well knew that Appellant is a C ESO with a
constitutionally guaranteed right to security of tenure, yet it
sought to dismiss Appellant through a termination letter da ted 13
September 2005, only four (4) days after Appellant decided to
transfer back to the PSF the three (3) checks supposedly for
Congressman Diaz. The timing betrays Malacanangs political
motives b ehind Appellants t ermination.
58. Both the CSC and the CESB have written the Appellant
that termination of a CESO without cause and due process of law
is illegal. Hence, in a desperate and fraudulent attempt to lend a
semblance of legality to Appellants removal from the DepEd,
Malacanang qualied on 23 September 2005, i.e. ten (10) days
after t he issuance of the termination letter, that Appellant was
terminated as undersecretary (of education) but not as CESO
( Annex I hereof). Malacanang later changed its stance and
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disguised the termination as a reassignment to some other
government position of the sam e rank.
59. Malacanangs cover-up did not end with its conicting
declarations. Knowing that the termination (disguised as
reassignment) is patently illegal, Malacanang deviously made it
appear that Appellant resigned and that it merely allowed
Appellant to continue its services as some form of accommodation.
Worse, Malacanang declared all these through press releases,
obviously to humiliate Appellant before t he p ublic.
60. This Honorable Commission should not and cannot
sanction such dismissal tainted by bad faith. Just like any other
employer, the government cannot transfer an employee as a result
of discrimination, in bad faith or as a form of punishment without
sufficient cause. 16 As this Honorable Commission has consistently
ruled, (t)he authority (to transfer em ployees) under t he law is not
intended to harass or oppress a subordinate on the pretext of
advancing and promoting public interest 17 .
61. The Supreme Court has protected government employees
from political ven detta. In Pangilinan vs. Maglaya, 18 the Acting
Executive Director of the Land Transportation Office was sep arated
from service the day after his public exposes on the anomalies
16 hi"i!!ine American ife an enera" (ns#rance -o' *s' rama e) 'R' ,o' 156963) ,o*em%er11) 2004'17 -i*i" Ser*ice -ommission Reso"#tion ,o' 030669) #ne 10) 2003 citin& -S- Reso"#tion ,o'98 16 08) #ne 24) 1998'18
'R' ,o' 104216) A#st 20) 1993'
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involving his superiors and his threat t o le cases against them.
Although the Supreme Court admitted that it was constrained by
law to uphold the termination of a temporary employee, it did not
hesitate to express its disapproval of t he real political motives
behind dismissals and declare that the removal, in fact,
grave a buse of discretion:
It is not d ifficult to see that the petitioner w asreplaced because of his expos and his threat to bringcharges a gainst his superiors. His relief was clearlyan act of punishment if not personal vengeance .
This is not denied. The respondents, while invokingthe law to justify his sep aration, have made no effort
whatsoever to justify their motives.
x x x x x x x x x
It would be a sorry day, indeed, if a civilservant could be summarily removed from hisposition for the "sin" of complaining about theirregularities of his superiors. This would not onlyimpair the integrity of the civil service but alsoundermine the campaign to encourage the public,
including those in the civil service, to expose anddenounce venality in government .
Pangilinan's denunciation of the non-reectivelicense plates was n ot the act of a rabble-rouser or apublicity-seeker. The record shows that he quietly
brought the matter to the attention of his superiors,giving reasons for h is misgivings. They took no action.Feeling frustrated, he sought the attention of themedia and told them of his objection to the non-reective license plates. He cited the laws that heclaimed had been violated. He narrated his efforts toprevent their violation. He sp oke of the indifference ofhis s uperiors. In doing all these, he was ex ercising hisright as a citizen, and especially as a civil servant, todenounce official misconduct and improve the publicservice.
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x x x x x x x x x
Pangilinan was separated the dayimmediately following his press conference. TheCourt sees the action as a retaliation. The publicrespondents say they were merely terminating hisincumbency in accordance with existing law. TheCourt sees that termination as a punishment.
Under the expanded denition of judicialpower in Article VIII, Section 1, of theConstitution, the Court can declare the acts of the
public respondents as tainted with grave abuse ofdiscretion and therefore invalid . (Emphasissupplied)
62. In this ca se, Appellant faces a formidable opponent, and
powerless, he can only take refuge in the arm s of the law. Under a
Rule of Law not even the highest officer of the land should be
allowed to disregard the Constitution, the law and the rights of
civil servants. No amount of political power nor threat of
punishment sh ould be able to intimidate civil servants into loyal
submission, blind obedience, and conspiracy to commit unlawful
acts.
Prayer
WHEREFORE, in view of the foregoing, it is respectfully
prayed that the Order dated 4 October 2005 signed by the
Appellee, ordering Appellants transfer to the DOLE be nullied as
illegal and that Appellant be retained as Undersecretary for
Finance and Administration of the Department of Education.
The Appellant prays for other relief that are just and
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equitable in the p remises.
Quezon City, 14 October 2005.
Counsel for Appellant:
ROWENA V. GUANZON
PTR No. 01321430 1-17-04 Cadiz CityIBP Lifetime Member 1020636 8-20-04Bacolod CityRoll of Attorney No. 33534
DAMCELLE S. TORRES PTR NO. 9437561/1-05-2005/ Makati
IBP NO. 631983/1-05-2005 LagunaRoll of Attorney No. 49400
MAE NIA REYES
Suite 311 Centro PlazaScout Torillo corner Scout MadrinanSouth Triangle, Quezon City 1103
Copy furnished: Registered Mail No. ___Secretary Eduardo Ermita Date __________________Office of the Executive SecretaryMalacanang PalaceManila City
EXPLANATION ON MODE OF SERVICE
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For lack of personnel, a copy of foregoing Memorandum on Appeal was served by registered mail, rather than by the preferrd
mode of personal service.
DAMCELLE S. TORRES