THE SECRETARY OF JUSTICE SERAFIN R. CUEVAS, EXECUTIVE SECRETARY RONALDO B. ZAMORA, AND ATTY. CARINA J. DEMAISIP, PETITIONERS, VS. ATTY. JOSEFINA G. BACAL, RESPONDENT.

Cuevas versus Bacal

The Case

This is a petition for review on certiorari brought by the Secretary of Justice, the Executive Secretary, and Attorney Carina Demaisip against Attorney Josefina Bacal, questioning the decision of the Court of Appeals which declared Bacal entitled to the position of Chief Public Attorney in the Public Attorney's Office. The case matters because it fixes the rule on security of tenure in the Career Executive Service: a career executive officer's tenure attaches to his rank, not to the particular position he occupies, so he may be reassigned or transferred from one office to another without violating that tenure, provided there is no reduction in rank or salary.

Procedural History

Bacal first filed a petition for quo warranto directly with the Supreme Court, questioning her replacement as Chief Public Attorney. The Supreme Court dismissed the petition without prejudice to its refiling in the Court of Appeals. Bacal then brought her case to the Court of Appeals, which, on March 25, 1999, ruled in her favor, finding her lawfully entitled to the Office of Chief Public Attorney. The petitioners moved for reconsideration, but the Court of Appeals denied the motion in its resolution dated July 22, 1999. The petitioners then came to the Supreme Court by petition for review on certiorari.

Facts

Josefina Bacal passed the Career Executive Service Examinations in 1989. On July 28, 1994, she was conferred CES eligibility and appointed Regional Director of the Public Attorney's Office. On January 5, 1995, then President Fidel Ramos appointed her to the rank of CESO III. On November 5, 1997, the Secretary of Justice designated her Acting Chief Public Attorney, and on February 5, 1998, President Ramos confirmed her appointment, so that on February 20, 1998, she took her oath and assumed office.

On July 1, 1998, President Joseph Estrada appointed Attorney Carina Demaisip as chief public defender. A second appointment paper dated July 6, 1998 designated Demaisip as chief public defender, formerly chief public attorney, vice Attorney Josefina Bacal, effective July 1, 1998. Bacal, on the other hand, was appointed Regional Director of the Public Defender's Office. Demaisip took her oath on July 7, 1998, and on July 10, 1998, the President issued a memorandum announcing her appointment.

On July 17, 1998, Bacal filed a petition for quo warranto questioning her replacement. The Court of Appeals ruled that her transfer, made without her consent, amounted to a removal without cause and that she had acquired security of tenure as Chief Public Attorney. Hence this petition.

Issues

• Whether or not Bacal's quo warranto suit should have been dismissed for failure to exhaust administrative remedies by appealing to the Office of the President.
• Whether or not Bacal, a CESO III, acquired security of tenure in the position of Chief Public Attorney, which carries CES Rank Level I.
• Whether or not Bacal's transfer to the position of Regional Director of the Public Attorney's Office, made without her consent, amounted to a removal without cause in violation of her security of tenure.

Applicable Provisions

The Integrated Reorganization Plan, on appointments in the Career Executive Service, provides:

Appointment to appropriate classes in the Career Executive Service shall be made by the President from a list of career executive eligibles recommended by the Board. Such appointments shall be made on the basis of rank; provided that appointments to the higher ranks which qualify the incumbents to assignments as undersecretary and heads of bureaus and offices and equivalent positions shall be with the confirmation of the Commission on Appointments.

This establishes that appointments in the Service are made on the basis of rank, which is the foundation of the Court's ruling that tenure attaches to rank and not to position.

The same Plan, on assignments, reassignments, and transfers, provides:

Any provision of law to the contrary notwithstanding, members of the Career Executive Service may be reassigned or transferred from one position to another and from one department, bureau or office to another; provided that such reassignment or transfer is made in the interest of public service and involves no reduction in rank or salary; provided, further, that no member shall be reassigned or transferred oftener than every two years; and provided, furthermore, that if the officer concerned believes that his reassignment or transfer is not justified, he may appeal his case to the President.

This authorizes the transfer of a career executive officer so long as it is in the interest of public service and involves no reduction in rank or salary, which is exactly the situation of Bacal.

The implementing rules of the CES Board, on the salary of career executive officers, provide:

A CESO is compensated according to his CES rank and not on the basis of the CES position he occupies. However, if a CESO is assigned to a CES position with a higher salary grade than that of his CES rank, he is allowed to receive the salary of the CES position. Should he be assigned or made to occupy a CES position with a lower salary grade, he shall continue to be paid the salary attached to his CES rank.

This explains why Bacal received the salary of Chief Public Attorney even though her rank was CESO III, and why her transfer to a lower salary grade did not reduce her compensation.

Ruling

On the first issue, the Court held that the doctrine of exhaustion of administrative remedies does not apply. No appeal need be taken to the Office of the President from the decision of a department head, because the department head is in theory the alter ego of the President; there is greater reason not to require such resort when the administrative decision sought to be reviewed is that of the President himself. In any event, the doctrine does not apply when the question raised is purely legal, as here.

On the second issue, the Court held that Bacal did not acquire security of tenure in the position of Chief Public Attorney. That position requires CES Rank Level I, while Bacal held CESO III. Her appointment to that position could not be permanent, and she could claim no security of tenure in respect of it. The Court quoted with approval the rule in Achacoso versus Macaraig:

It is settled 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.

On the third issue, the Court held that the transfer was valid. The position of Regional Director of the Public Attorney's Office carries CES Rank Level III and Salary Grade 28, corresponding to Bacal's rank. Within the Career Executive Service, personnel may be shifted from one office or position to another without violating security of tenure, because their status and salaries are based on their ranks and not on their jobs. Security of tenure in the Career Executive Service is acquired with respect to rank, not to position.

Doctrine

Security of tenure in the Career Executive Service is acquired with respect to rank, not to position. A CES eligibility alone does not confer tenure; it is appointment to the appropriate CES rank by the President, upon the recommendation of the Board, that completes the officer's membership in the Service and confers security of tenure in the CES.

A career executive officer may be reassigned or transferred from one position to another and from one department, bureau, or office to another, provided the reassignment or transfer is in the interest of public service and involves no reduction in rank or salary. Because the officer's status and salary are based on rank and not on the job, such mobility does not violate security of tenure.

An appointment to a position for which the officer lacks the required CES rank is not permanent, and the officer can claim no security of tenure in that position.

Disposition

The petition was granted; the decision of the Court of Appeals was reversed and set aside, and Bacal was held not entitled to the position of Chief Public Attorney.

Remember This

Memorize the line: in the Career Executive Service, security of tenure attaches to rank, not to position. Examiners use this case to test the distinction between rank and position in the CES, and the validity of unconsented transfers of career executive officers.