LEON S. PIÑERO, JESUS SAMANIEGO, SILVESTRE ATANACIO, JOSE CABRERA, RUFO CRUZ, LEONARDO DEL ROSARIO, RIZALDO GRANADA, EPITACIO GUEVARRA, ESMAEL C. HERNANDEZ, SEGUNDINO MANIMBO, D…

Alleging that they were dismissed
for lack of confidence, in violation of the law and the Constitution, appellees Leon Piñero, et al.,
instituted mandamus proceedings in the court below against their replacements,
the Commissioner of Customs, the Secretary of Finance and the Customs Auditor,
to compel reinstatement to their positions in the Customs Patrol Service, with
back salaries.

There is virtually no controversy
over the facts that gave rise to this proceeding. In his decision, the trial
judge, Hon. Conrado M. Vazquez, summarized thus the
stipulated facts in this case:

“The thirty-two petitioners, at
the time of their dismissal, were employees occupying positions in various
capacities in the Port Patrol Division of the Bureau of Customs. With the
exception of petitioners Jose Guerrero, Eleuterio
Medrano and Ismael Hernandez, they were holding their
positions under permanent appointments. The petitioners have rendered services
in the Bureau of Customs which ranged individually from two years to twenty-six
years. They were all insured with the Government Service Insurance System. On
various dates between the first week of December, 1962 up to the last week of
January, 1963, the petitioners were ordered dismissed or separated from the
Bureau of Customs by the respondent Acting Secretary of Finance and Acting
Commissioner of Customs, based on the ground that said respondent had lost
confidence in them. After their dismissal, the petitioners individually and
collectively demanded in writing for their immediate reinstatement, but their
demands were unheeded. Instead, the other respondents (except Rodrigo D. Perez,
Jr. and the Auditor of the Bureau of Customs) were appointed in the positions
previously held by the petitioners. On July 27, 1963, the petitioners filed this
action before this Court.”

The trial court held that under
the Constitution (Article XII, section 4) as well as the Civil Service Law (Rep.
Act No. 2260) the petitioners below (private respondents in this Court) could
not be dismissed or removed from their positions without cause and due hearing
even if their positions should be primarily confidential, as contended by the
Customs and Finance authorities , because the Civil Service law at present
protects not only those who belong to the classified service but also those in
the unclassified service, that include positions primarily confidential, policy
determining or highly technical. It, therefore, rendered judgment ordering the
reinstatement of petitioners with payment of back salaries and commanding those
who replaced them in their respective positions to vacate and surrender the same
to the claimants, since these replacements were “illegally appointed to
positions which were not vacant”.

The State then duly brought the
case to this Court by direct appeal.

The principal issue posed is
whether claimants may be dismissed without cause or hearing for mere lack of
confidence, in view of the fact that the positions occupied by them in the
Customs Patrol Service are “primarily confidential”, having been so declared by
Executive Order No. 397, series of 1941, and Executive Order No. 94, series of
1947.

Appellants buttress their claim
upon the executive orders aforesaid. It is well to note, however, that while
Executive Order No. 397, Series of 1941, declares that –

“the appointment, promotion,
discipline and removal of the members of the Harbor Police be subject only to
the discretion of the appointing authority”

Executive Order No. 94, Series of
1947, in its Section 53 and 54, merely provides:

“‘SEC. 53. There is hereby
organized as “Customs Patrol Service” through the consolidation of the Secret
Service Division and the Harbor Police Division, including the positions and
personnel paid by the entity operating the arrastre
service, to take direct charge of the enforcement of the laws and regulations
within the customs premises and the port area.

“‘SEC. 54. The positions in the
Customs Patrol Service are hereby declared primarily confidential and
appointments thereto will be subject only to the discretion of the Secretary of
Finance.’”,

without, therefore, reiterating
the former Executive Order (397) that (besides appointment) their discipline and
removal would be, likewise, at the discretion of the Secretary of Finance.
Appellants, however, maintain that the Executive Order (No. 397) supplements the
deficiency in the latter one (No. 94, series of 1947), and that in not so
holding the trial court committed error.

We do not find it necessary to
resolve this particular issue, because of the more fundamental reason that,
under Section 5 of the Civil Service Act of 1959 now in force, what determines
ultimately whether an administrative position is primarily confidential, policy
determining or highly technical, is the nature of the functions attached to the
position. This clearly appears from the wording and history of section 5 of the
1959 Civil Service Act (R. A. 2260), which recites:

“SEC. 5. The Non-competitive Service. – The
non-competitive or unclassified service shall be composed of positions expressly
declared by law to be in the non-competitive or unclassified service or those
which are policy determining, primarily confidential or highly technical in
nature.” (Emphasis supplied)

The Act’s legislative history
reveals that while Senate Bill No. 133 (that ultimately became Republic Act
2260) was being debated in the Senate, Section 5 originally provided as
follows:

“SEC. 5. The Non-competitive Service. – The
non-competitive or unclassified service shall be composed of positions expressly
declared by law to be in the non-competitive or unclassified service or to be
policy determining , primarily confidential, or highly technical in nature.”
(Emphasis supplied)

The change from the original
wording of the bill (expressly declared by law . . . . . . . . . . to be policy
determining, etc.) to that finally approved and enacted (“or which are policy
determining, etc. in nature”)
came about because of the observations of Senator Tañada, that as originally worded the proposed bill gave
Congress power to declare by fiat of law a certain position as primarily
confidential or policy determining, which should not be the case. The Senator
urged that since the Constitution speaks of positions which are “primarily
confidential, policy determining or highly technical in nature”^[1], it is not within the power of Congress
to declare what positions are primarily confidential or policy determining. “It
is the nature alone of the
position that determines whether it is policy determining or primarily
confidential.” Hence, the Senator further observed, the matter should be left to
the “proper implementation of the laws, depending upon the nature of the
position to be filled”, and if the position is “highly confidential” then the
President and the Civil Service Commissioner must implement the
law.

To a question of Senator Tolentino, “But in positions that involved both confidential
matters and matters which are routine, . . . . . . . . who is going to determine
whether it is primarily confidential?” Senator Tañada
replied:

“’SENATOR TAÑADA: Well, at the
first instance, it is the appointing power that determines that: the nature of
the position. In case of conflict then it is the Court that determines whether
the position is primarily confidential or not.

“‘I remember a case that has been
decided by the Supreme Court involving the position of a district engineer in
Baguio, and there, precisely, the nature of the
position was in issue. It was the Supreme Court that passed upon the nature of
the position, and held that the president could not transfer the district
engineer in Baguio against his consent.^[2]‘“

Senator Tañada, therefore, proposed an amendment to section 5 of the
bill, deleting the words “to be” and inserting in lieu thereof the words
“Positions which are by their nature” policy determining, etc., and deleting the
last words “in nature”. Subsequently, Senator Padilla presented an amendment to
the Tañada amendment by adopting the very words of the
Constitution, i.e., “those which are policy determining, primarily confidential
and highly technical in nature”. The Padilla amendment was adopted, and it was
this last wording with which section 5 was passed and was enacted (Senate
Journal, May 10, 1959, Vol. 11, No. 32, pp. 679-681).

It is plain that, at least since
the enactment of the 1959 Civil Service Act (R. A. 2260), it is the nature of
the position which finally determines whether a position is primarily
confidential, policy determining or highly technical. Executive pronouncements
can be no more than initial determinations that are not conclusive in case of
conflict. And it must be so, or else it would then lie within the discretion of
the Chief Executive to deny to any officer, by executive fiat, the protection of
section 4, Article XII, of the Constitution.^[3]

Now, the record is devoid of data
as to the functions discharged by the members of the Port Patrol, other than
they are part of the Customs police forces. But this fact does not by itself
indicate that the position is primarily confidential, so as to dispense with
security of tenure for the incumbents. In De los
Santos vs. Mallare, 87 Phil. 289, this Court, in
holding that the position of City Engineer of Baguio
was not a primarily confidential one, reasoned as follows:

“Every appointment implies
confidence, but much more than ordinary confidence is reposed in the occupant of
a position that is primarily confidential. The latter phrase denotes not only
confidence in the aptitude of the appointee for the duties of the office but
primarily close intimacy which insures freedom of intercourse without
embarrassment or freedom from misgivings of betrayals of personal trust or
confidential matters of state” (Cas. cit. at p.
298).

As previously pointed out, there
are no proven facts to show that there is any such close Intimacy and trust
between the appointing power and the appellees as
would support a finding that confidence was the primary reason for the existence
of the positions held by them or for their appointment thereto. Certainly, it is
extremely improbable that the service demands any such close trust and intimate
relation between the appointing official and, not one or two members alone but
the entire Customs Patrol (Harbor Police) force, so that every member thereof
can be said to hold “primarily confidential” posts.

We are thus compelled to conclude
that the positions formerly held by appellees were not
primarily confidential in nature, so as to make their terms of office
co-terminal with the confidence reposed in them. The inevitable corollary is
that respondents-appellees, Leon Piñero, et al., were not subject to dismissal or removal,
except for cause specified by law and with due process (Civil Service Law,
Republic Act 2260, section 32). Hence, the court below committed no error in
holding that appellees could not be legally separated
from the service for mere lack of confidence, the same not being one of the
causes for removal mentioned in section 33 of the Civil Service
Act.

Nor do we find tenable the
contention of appellants that removal of petitioners is discretionary in the
Secretary of Finance because it is so provided in Executive Order No. 397,
Series of 1941, that supplements the subsequent Executive Order No. 94, Series
of 1947, Section 53, the latter being silent on the manner of removing Customs
Patrol (ex-Harbor Police) officers. The reason is not only that Executive Order
No. 94, Series of 1947, was issued pursuant to the Reorganization Act of 1946
(Republic Act No. 51),specifically enacted for the organization of the
Administrative services of the independent Republic, and, therefore, it
necessarily superseded Executive Order No. 397, Series of 1941, that only
envisaged the services under the Commonwealth, but also because the 1941 order
appears predicated upon Section 671, paragraph 1, of the Administrative Code
^[4], and the latter section was among
those expressly repealed by Section 45 of the Civil Service Law of 1959. Even
assuming, therefore, that Executive Order No. 94, Series of 1947, is still in
force, the discretionary removal of appellees is not
authorized by it.

The appellants argue that
respondents-appellees herein do not possess civil
service eligibility appropriate for the positions they were holding. But this
question was not invoked in petitioners’ answer in the court below, and hence
can not be raised for the first time on appeal. Besides, the parties expressly
stipulated that appellees (with the exception of Jose
Guerrero, Eleuterio Medrano and Ismael Hernandez) were issued permanent appointments, and
the presumption of regularity applies to them. Even in the case of those holding
provisional or probationary appointments (like the three above-named) the
invalidity thereof can not be declared unless it is first shown that there were
appropriate eligibles at the time they were appointed,
and this requisite has not been established by evidence (Civil Service Rule VI,
sections 13 and 14).

“SEC. 13. Whenever a vacancy
occurs and the filling thereof is necessary in the interest of the service and
in the findings of the Commissioner there is no appropriate eligible at the time
of appointment, the appointing officer may, upon prior authorization of the
Commissioner, Provincial or City Treasurer, as the case may be, issue a
provisional appointment to a person who has not qualified in an appropriate
examination but who otherwise meets the requirements for appointment to a
regular position in the competitive or classified service.

“SEC. 14. A provisional
appointment shall in no case extend beyond 30 days from receipt by the
appointing officer of the certification of eligibles.”

In view of the deficiencies of
the record, and the failure in the answer to properly tender issue on these
points, it is our opinion that the matter of eligibility should be threshed out
in an appropriate proceeding, giving all parties ample opportunity to litigate
their respective contentions.

Appellants, likewise, aver that
appellees are in estoppel to
claim dismissal without just cause and hearing, because they accepted
appointment and assumed their positions under Executive Order No. 397, series of
1941, declaring their positions to be primarily confidential. But assuming that
such declaration was constitutional and valid, the subsequent 1959 Civil Service
Law determined the character of the appellees‘ tenure
according to the nature of the position itself, and we fail to see how estoppel could operate to deprive appellees of the benefits accorded by this subsequent
statute, particularly when the law itself prohibits waiver of any right or
rights accruing under the law to the civil service employee.

“SEC. 40. Waiver of Rights. – No public officer
or employee acting for a public officer shall be permitted to require an
applicant for employment or any employee to sign any paper or document whereby
such applicant for employment waives any right or rights accruing to him under
this law.”

The final contentions are
procedural. Petitioners Insist that the National Treasurer is an indispensable
party to this action, since appellees claimed payment
of back salaries; and that these proceedings are in fact a suit against the
government, not maintainable without its consent.

We find these contentions of
appellants untenable. The payment of appellees‘ back
salaries is purely incidental to the main question relative to the legality of
their ouster, and would be a mere consequence of a declaration that the same was
illegal. It nowhere appears that the Insular Treasurer has objected to paying
the back salaries of appellees herein in the event it
should be declared by the courts that they were illegally dismissed; nor does it
appear that such salaries are not, or have not been, included and appropriated
in the yearly budgets enacted by the Legislature and approved by the President
of the Philippines.

It was pointed out in State
Mineral Lease Commission vs. Lawrence, 157 So. 897 (quoted with approval in
Ruiz, et al. vs. Cabahug, et al., 54 Off. Gaz., No. 2, pp.351, 354), that the cases wherein the rule
of state immunity from suit has been applied and upheld are:

“xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx those which demanded a
money judgment, and wherein the discharge of the judgment, if obtained, would
require the appropriation or an expenditure therefrom,
which being legislative in its character is a province exclusively of the
political departments of the state. And in the less frequent number of cases
where no money judgment is demanded, and the rule of immunity is still upheld,
it will be found in them that the relief demanded would be, nevertheless, to
require of the state or its political subdivision the affirmative performance of
some asserted obligation, the nature of which, and the process of its discharge
belong to the state in its political
capacity.’”

None of these circumstances
obtains in this case.

WHEREFORE, the appealed decision is hereby
affirmed. Without costs.

Concepcion, C.J., Dizon. Regala, Makalintal, Bengzon, J. P., Zaldivar, Sanchez and Ruiz Castro, JJ., concur.

 Barrera, J., on leave.

^[1] Constitution, Article XII (Civil
Service), Section 1. “A Civil Service embracing all branches and subdivisions of
the Government shall be provided by law. Appointments in the Civil Service,
except as to those which are policy-determining, primarily confidential or
highly technical in nature, shall be made only according to merit and fitness,
to be determined as far as practicable by competitive
examination.”

^[2] Senator Tañada must have had in mind the case of De los Santos vs. Mallare, 87 Phil.
289.

^[3] Section 4. No officer or
employee in the Civil Service shall be removed or suspended except for cause as
provided by law.”

^[4] Sec. 671, Adm. Code. “Persons
embraced in unclassified service -x x x x (1) Positions which may be declared by the President of
the Philippines, upon recommendation of the Commissioner of Civil Service, as
policy determining, primarily confidential, or highly technical in nature.