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REPUBLIC OF THE PHILIPPINES CIVIL SERVICE COMMISSION Constitution Hills, Quezon City

JUAN MIGUEL LUZ, Appellant, Re: Reassignment/ -versus- Transfer (Appeal) THE EXECUTIVE SECRETARY EDUARDO ERMITA, Appellee. x--------------------------------------x

MOTION FOR RECONSIDERATION (of CSC Resolution No. 06-0216 dated 1 February 2006)

Appellant, Juan Miguel M. Luz, by counsel, respectfully

states:

TIMELINESS OF THE MOTION FOR RECONSIDERATION

1. This is a motion for reconsideration of Resolution No.

06-0216 (the “Resolution”) promulgated by this Honorable

Commission on 1 February 2006, which dismissed Appellant’s

Appeal of his reassignment to the Department of Labor and

Employment (“DOLE”), for lack of jurisdiction. A certified true copy

of this Resolution is hereto attached as Annex “A”.

2. Through undersigned counsel, Appellant received a

copy of the Resolution on 3 February 2006. Hence, the instant

motion is timely filed in accordance with Section 72 of the Uniform

Rules on Administrative Cases in the Civil Service, which provides:

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“Section 72. When and Where to File. – A decision or ruling of a department or agency may be appealed within fifteen (15) days from receipt thereof by the party adversely affected to the Civil Service Regional Office and finally, to the Commission Proper within the same period. A motion for reconsideration may be filed with the same office which rendered the decision or ruling within fifteen (15) days from receipt thereof.” (Emphasis supplied)

STATEMENT OF FACTS AND OF THE CASE Appellant’s qualifications

3. In 1987, Appellant was appointed Presidential Staff

Director of the Presidential Management Staff (“PMS”) in the Office

of the President 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.

4. In January 1991, Appellant became a Career

Executive Service Officer (“CESO”) 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.1

1 See Annex “B” of the Appeal.

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5. After four (4) years in 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

Asia Pacific Economic Cooperation (“APEC”) Business Advisory

Council, the private sector advisory body 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, Appellant served as

Executive Director of the Philippine National Museum Foundation,

a private sector foundation that raised funds for the renovation of

the National Museum in time for the country’s Centennial

celebrations in 1998. He also served as trustee of the Heritage

Conservation Society of the Philippines for two terms and is

currently a trustee of Museo Pambata ng Pilipinas.

7. With a Bachelor’s Degree in Liberal Arts from St.

Mary’s College of California,2 a La Salle Christian Brothers

institution, and a Master’s Degree in Public Administration from

the John F. Kennedy School of Government, Harvard University,3

Appellant has expertise in the fields 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 2 He graduated magna cum laude and garnered two awards for academic excellence – James L. Hagerty Award (School of Liberal Arts) and St. Thomas Aquinas Award (Integral Program). 3 He was an Edward S. Mason Fellow in International Development.

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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. On 12 November 2002, Appellant was appointed

Undersecretary of the DepED. In the same month, he took an oath

of office (a copy of which is attached as Annex “B” hereof)

pursuant to the said appointment. He then took charge of the

Finance and Administration of the DepED.

9. Appellant reactivated his CESO rank as confirmed by

the Career Executive Service Board.4

10. 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.

Appellant’s contributions to reform the DepED

11. As DepED Undersecretary, Appellant carried out major

reforms in the areas of finance and management systems. Notable

among these were:

• Providing direct funding releases from the National

Treasury to fiscally-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

4 See Annex “B”of the Appeal.

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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 automatic payroll deduction system;

• Re-engineering the Department’s Provident Funds5 in

order to have a professional system; and

• Forming Brigada Eskwela (National Schools

Maintenance Week), a project undertaking minor

repairs of schools involving various school

stakeholders, the local community, local government

units and the private sector. Brigada Eskwela

significantly minimized problems encountered during

school openings.

12. Since 2002, education reforms, both in terms of

financial management and support to academic programs of

schools, have helped establish the image of the Department of

Education as one of the five least corrupt national agencies in the

Social Weather Stations’ annual Enterprise Survey. This has been

cause for great pride in DepED considering that it was formerly

one of most corrupt agencies in the survey prior to that period.6

5 The Department Provident Fund has a nationwide portfolio of P1.1 Billion in 16 regions). 6 During the entire PGMA Administration, no procurement, personnel or financial scandal has rocked the Department. The lone scandal attributed to the Department involved a controversial error-laden textbook procured a decade ago but which are still in the schools. The Department recalled the textbook and put in place a tighter textbook evaluation process to prevent such errors from recurring in public school textbooks in the future.

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13. In sum, Appellant is a highly-educated, competent,

honest, and dedicated public servant. His knowledge, competence

and integrity enabled him to generate significant financial and

material support from the private sector for schools under the

Department’s Adopt-a-School program.

Malacañang’s post-dated checks

14. On 23 August 2005, the DepED received a letter from

Congressman Antonio Diaz stating that President Arroyo had

approved P20 Million from the President’s Social Fund (“PSF”) to be

used for the congressman’s scholarship fund in the 2nd District of

Zambales. Included in the letter was the first P5 Million, in a

handwritten check drawn against an unmarked non-commercial

account in the Land Bank branch in Malacañang.7

15. The DepED’s 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

amount and name of the payee, the Department of Education. The

check was dated 21 August 2005, a Sunday.

16. Incredulous that Malacañang would issue such a

handwritten check, Appellant asked the DepED Chief Accountant,

Ms. San Pablo, to call the office of DES Vargas to inquire if this

was in fact a genuine check.

7 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” of the Appeal.

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17. After Ms. San Pablo reported to him that the Office of

the President confirmed the existence of the check, the Appellant

called Congressman Diaz’s Chief of Political Affairs staff, Ms. Cora

Maestre, to inquire about the purpose of the amount and the

manner of the disbursement.

18. According to Ms. Maestre, the fund was to be

distributed as “scholarship assistance” given to each public high

school student in the congressman’s district at a rate of P350 per

student, notwithstanding the fact that public education is free and

requires no payment of fees.

19. Appellant was then told that the P5 Million should be

transferred to the Zambales division office which would, in turn,

release the money to the congressman’s office, which would then

distribute the same to the student beneficiaries directly. To

liquidate this amount, each student was to sign a list similar to a

teachers payroll when the latter receive their payslips and

paychecks from the division.

20. In a telephone conversation, DES Vargas told the

Appellant that she was not privy to the President’s decisions on the

PSF but that the Fund was disbursed solely at the discretion of the

President. Hence, the scholarship project as discussed by the

congressman must have been in accordance with the President’s

instructions.

21. Upon the request of DES Vargas, Appellant agreed to

have the first P5 Million check deposited to the DepED central

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office trust fund. He, however, instructed Ms. San Pablo, not to

transfer any fund to the Division of Zambales until the Department

received in writing a clear program of work and the process of

disbursement and liquidation from the congressman’s office.

22. On 2 September 2005, three similar checks of equal

amount (P5.0 Million each) were forwarded to the DepED

accounting office from the PMS for deposit and transfer to the

same division of Zambales. The dates on these post-dated checks

were 3 September 2005, 3 December 2005, and 3 March 2006.8

Appellant noticed that all three were similarly handwritten as the

first check in August, though they now bore two signatures - those

of DES Susana Vargas and Erlinda Bautista de Leon as head of the

PSF.

23. The DepED accountant reported to the Appellant that

there was no accompanying documentation with the checks.

Neither was there a Special Allotment Release Order (SARO),9 nor a

Notice of Cash Allocation (NCA)10. Moreover, upon checking with

both the Department of Budget and Management (DBM) and the

Commission on Audit (COA), she confirmed that the acceptance of

post-dated checks are against government rules on accounting and

auditing procedures.

8 Certified true copies of these checks are attached as Annexes “I-series” of the Appeal. 9 The SARO is the notice from the DBM to a department that informs the latter that funds are now allotted and can be obligated. In effect, the SARO provides the department with the authority to spend funds. 10 The NCA is the notice from the DBM that the cash has been deposited or transferred to the account of the department and can be drawn against. Only at this point in time can a check be prepared and/or released to the payee.

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24. Upon the request of the Appellant in a letter dated 6

September 2005,11 COA Assistant Commissioner Arcadio Cuenco

wrote a letter stating that:

“Please be informed that the issuance and/or

receipt of post-dated checks by government agencies is prohibited under GAO Circular No. 68-110 dated October 10, 1968 pertinent portion of which states:

‘Checks presented for payment must be drawn by the payor himself and made payable to the agency or head of agency… Under no circumstance shall the following checks be accepted: (a) checks drawn payable to the name of the agency head or any of its officers, (b) indorsed checks, (c) postdated checks, (d) stale checks, and (e) out-of-town checks, except those which are drawn by the Government or its instrumentalities.’ ” (Emphasis supplied)12

25. 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.13

26. Appellant called DES Vargas on 7 September 2005 to

inquire about the post-dated checks she signed, which were

personally delivered by the congressman’s staff. Her reply was

startling. She sounded perplexed by the Appellant’s 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

11 A certified copy of the letter of the Appellant to COA is attached as Annex “J” of the Appeal. 12 A certified copy of the letter of the Commission on Audit to the Appellant is attached as Annex “K” of the Appeal. 13 A certified true copy of this letter is attached as Annex “L” of the Appeal.

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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 to the details of the checks, nor to the projects

for which they were intended. Furthermore, she could not

understand nor explain why two of the checks would be post-

dated.

27. On the same day the DepED Chief Accountant called

the Appellant with another urgent matter. The PMS called her and

Mr. Mandy Ruiz, the Department’s Chief Budget Officer, to inquire

if another PSF check could be deposited directly to the division of

Zamboanga del Sur 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 check.

28. On 8 September 2005, Ms. Maestre of Congressman

Diaz’s office came to inquire if DepEd already deposited the first

two (2) checks and if these could already be transferred to the

division office.

29. The Appellant, not wanting to veer away from the

proper accounting and auditing procedures, decided to return the

four (4) checks to the PSF, including the first one (21 August 2005)

already deposited into the DepED central office trust account. For

this purpose, he called the Department’s Chief Accountant, Chief

Budget Officer and Cashier to his office. The official receipt for the

second check (3 September 2005) was cancelled since this official

receipt had not yet been given to the Office of the President/PMS

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and the check had yet to be deposited into the department’s trust

account.

30. Also on 8 September 2005, Ms. Yvonne Chua of the

Philippine Center for Investigative Journalism (“PCIJ”), having

heard of the post-dated checks from her “Malacañang source,”

came to see the Appellant to confirm if there were in fact such

checks received by DepED.

31. Early on 9 September 2005, Friday, a staff of PMS was

in Appellant’s office waiting to pick up the three checks. Appellant

called Director Marietta Tamondong of the PMS and informed her

that the amount in the first check (which had already been

deposited) would likewise be returned to PSF but through a DepED

check.14

32. That same day, Appellant informed OIC-Secretary Fe

Hidalgo of these developments. The latter concurred with his

decision.

33. Deciding to return all of the checks that constituted

the P20 Million grant given to Congressman Diaz by the President

through the PSF, Appellant, on 10 September 2005, cancelled the

Disbursement Voucher for the first P5.0 M and instructed Ms. San

Pablo to return the amount to the PSF using a DepED check.15

14 A certified copy of the letter documenting the return of the checks is attached as Annex “M” of the Appeal. 15 A certified copy of the cancelled voucher with the Appellant’s marginal note (written instructions) is attached as Annex “N” of the Appeal.

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34. On 11 September 2005, a Sunday, PCIJ’s Ms. Chua

posted the story on the PCIJ weblog site which became a source of

news for other media organizations.

35. On 12 September 2005, Appellant left for the United

States for a conference in New York City. That same day, the PCIJ

blog appeared in the Philippine Star.

36. While Appellant was in the United States, OIC-

Secretary Fe Hidalgo received a letter, dated 13 September 2005,

from Congressman Antonio Diaz requesting for the release of the

first P5.0 M (date 21 August 2005).16 This was eventually released

upon the instructions of OIC-Secretary Hidalgo. After the release

of this amount, the DepED received a Deed of Donation for the

same P5.0 Million signed by Cabinet Secretary Ricardo Saludo and

Undersecretary Ramon Bacani of the DepED, and notarized on 15

September 2005.17

Appellant’s termination

37. Appellant’s worries started on 13 September 2005,

when his office received a letter from the Executive Secretary that

read:

“We wish to thank you for your services as Undersecretary, Department of Education, effective immediately”.18

16 A certified true copy of Cong. Diaz’ letter is attached as Annex “O” of the Appeal. 17 A certified copy of this Deed of Donation is attached as Annex “P” of the Appeal. 18 Annex “C” of the Appeal.

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38. As Appellant was then out of the country, the OIC-

Secretary called him on 16 September 2005, while he was still in

New York, to relay the news.

39. Stunned by what was apparently a termination letter,

on 20 September 2005, Appellant sent a query to the Civil Service

Commission asking whether or not he was terminated and if any

such termination was proper.19

40. On 21 September 2005 Chairperson Karina

Constantino-David of this Honorable Commission wrote Appellant

a letter20 stating that:

“For an undersecretary position, the

qualifications are: Bachelor’s degree, three (3) years supervisory experience and Career Service Executive Eligibility (CSEE) or Career Executive Eligibility (CESE). Considering that you have met all the said requirements, the status of your appointment is permanent. As such, you have security of tenure to the said 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 the termination letter did not mention any cause or reason for your termination, it is obvious that the Office of the President was working under the mistaken assumption that your appointment was not permanent and thus, you may be separated from the service anytime or at a moment’s notice.”

41. On the same date, also in response to Appellant’s

query, Career Executive Service Board (“CESB”) Executive Director

Mary Ann Fernandez-Mendoza replied that since Appellant did not

19 Annex “D” of the Appeal. 20 Annex “E” of the Appeal.

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resign from his position, the letter from the Office of the President

could not be taken to mean termination from the service, and that

Appellant may continue performing his functions as

Undersecretary of DepED.21

42. Appellant immediately prepared a letter informing the

Office of the President that he was going to continue to perform his

duties and functions as Undersecretary of DepED with no

disrespect intended, and that his concerns were focused

principally on continuing and expanding education reforms.22

43. Two days later, on 23 September 2005, Malacañang

announced to the media that Appellant had been “terminated as

undersecretary (of education) but not as a CESO.” This was later

modified as to be “a reassignment to some other government

position of same rank.” Again, the announcement was modified by

the Press Secretary, who stated that Appellant had resigned as

Undersecretary.

44. 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.23

45. On 4 October 2005, Appellant received a

Memorandum24 of even date from Appellee, which reads:

“In the exigency of service, you are hereby re-assigned from the Department of Education (DepED)

21 A copy of this letter is attached as Annex “F” of the Appeal. 22 A copy of this letter is attached as Annex “G” of the Appeal. 23 Copies of the newspaper clippings are attached as Annexes “H”, “H-1”, and “H-2” of the Appeal. 24 Annex “A” of the Appeal.

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to the Department of Labor and Employment (DOLE) to a position at least commensurate to your Career Executive Service (CES) rank.”

The Memorandum reassigned him to the DOLE, without specifying

a position or a definite period.

46. On the same day, Appellant received a letter, dated 23

September 2005, from DOLE Secretary Patricia Santo Tomas,25

stating that since the Appellant was being moved from the DepED,

she was requesting that he be reassigned to her department.

47. On 14 October 2005, Appellant filed with this

Honorable Commission an Appeal contesting his reassignment to

the DOLE.

48. On 18 November 2005, Appellant, not having received

any Comment from Appellee, submitted to this Honorable

Commission a letter requesting for a decision of the Appeal based

on the pleadings and evidence filed, and requesting that the date of

hearing, if necessary, be set as soon as possible.

49. Appellee thereafter filed his Comment dated 25

November 2005.

50. On 12 December 2005, Appellant filed with this

Honorable Commission a Manifestation with Motion to Set Case for

Hearing and File Reply.

25 A certified true copy of this letter is attached as Annex “Q” of the Appeal.

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51. Without awaiting action on the said Motion, Appellant,

on 19 December 2005, filed his Reply to Appellee’s Comment.

52. On 3 February 2006, Appellant received a copy of this

Honorable Commission’s Resolution No. 06-0216. The dispositive

portion of the said Resolution, reflecting the Majority Opinion, i.e.

the opinions of Honorable Commissioners J. Waldemar V.

Valmores and Cesar D. Buenaflor (the “Majority”) states:

“WHEREFORE, the appeal of Undersecretary

Juan Miguel M. Luz is hereby DISMISSED for lack of jurisdiction.”

Hence, the instant Motion for Reconsideration where Appellant

respectfully submits that the Resolution dismissing his Appeal of

the Order dated 4 October 2005 (the “Order”), signed by Appellee,

Executive Secretary Eduardo Ermita, is not supported by evidence

on record and contains errors of law or irregularities prejudicial to

Appellant’s interest.26 Appellant concurs with Dissenting Opinion

of no less than the Chairperson of this Honorable Commission,

holding that:

“a. The Commission has jurisdiction over the appeal of

Luz. b. Luz has security of tenure in the Career Executive

Service. c. Luz’s reassignment to the DOLE was tainted with

bad faith and was not done in the interest of public service.”27

26 These are among the grounds for a motion for reconsideration stated under Section 40 of the Uniform Rules on Administrative Cases in the Civil Service. 27 Dissenting Opinion, p. 19.

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GROUNDS

I.

THE HONORABLE COMMISSION ERRED IN HOLDING THAT IT HAS NO JURISDICTION OVER APPELLANT’S APPEAL.

II. THE HONORABLE COMMISSION ERRED IN RULING THAT APPELLANT DOES NOT HAVE SECURITY OF TENURE.

III. THE HONORABLE COMMISSION ERRED IN RULING THAT APPELLANT’S TRANSFER WAS LEGAL.

DISCUSSION

I.

THE HONORABLE COMMISSION ERRED IN HOLDING THAT IT HAS NO JURISDICTION TO TAKE COGNIZANCE OF APPELLANT’S APPEAL.

53. In the Resolution, the Majority swiftly and erroneously

concluded that this Honorable “Commission cannot take

cognizance of the case because it has no jurisdiction over the

Appeal of Undersecretary Luz”. The Majority initially opined that

presidential appointees of CESO rank should question their

reassignment before the Office of the President, following

Paragraph 5(e), Article IV, Chapter I, Part III of Presidential Decree

No. 1 or the Integrated Reorganization Plan.28

28 This section states:

“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

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54. However, recognizing that the Order subject of the

appeal was issued “by authority of the President”, the Majority

dispensed with the need to go to the Office of the President, but

immediately jumped to a higher level, that is the Court of Appeals.

The Majority invoked Rule 43 of the Rules of Civil Procedure which

explicitly enumerates the Office of the President as among the

agencies whose decisions may be reviewed by the Court of Appeals.

They justified resort to the Court of Appeals by saying that nothing

in the Administrative Code of 1987 (Executive Order No. 292)

categorically vests this Honorable Commission with jurisdiction to

review actions of the Office of the President.

A. Rule 43 of the Rules of Civil

Procedure is not applicable to Appellant’s case, as said rule applies only to awards, judgments, final orders or resolutions issued in the exercise of quasi-judicial functions.

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55. It is conceded that review by the Office of the President

is inapplicable to the case at bar. As the Honorable Chairperson of

this Commission correctly pointed out in her Dissenting Opinion,

“since the reassignment ordained by the Executive Secretary was

presumptively the act of the President in line with the doctrine of

qualified political agency, then the same could not be appealed to

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.” (Emphasis supplied)

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the President, without miscarriage of administrative justice.”29 It is

a settled rule in administrative law that the person who

promulgated the decision cannot be the same person who will

review such decision on appeal.30

56. The Majority’s resort to the Court of Appeals, is

however, a patent flaw which even law students can easily detect.

It is clear from the provisions of Section 1, Rule 43 that the said

Rule applies only to “appeals from judgments or final orders of the

Court of Tax Appeals and from awards, judgments, final orders or

resolutions of or authorized by any quasi-judicial agency in the

exercise of its quasi-judicial functions”. That the provision

mentions the Office of the President does not automatically mean

that review of all actions of such office fall within the exclusive

jurisdiction of the Court of Appeals. What is controlling for the

application of Rule 43 is that the decision must have been

rendered in the exercise of quasi-judicial functions.

57. Quasi-judicial functions involve the “determination of

rights, privileges and duties resulting in a decision or order which

applies to a specific situation.”31 As the Supreme Court aptly

explained in Commissioner of Internal Revenue vs. Court of

Appeals32 (also cited in the Dissenting Opinion, p. 4):

“Quasi-judicial or administrative adjudicatory power on the other hand is the power of the administrative agency to adjudicate the rights of

29 Dissenting Opinion, pp. 2-3. 30 GSIS vs. Court of Appeals, G.R. No. 128523 September 28, 1998 citing Zambales Chromite Mining Company vs. Court of Appeals, G.R. No. L-49711, November 7, 1979 and Anzaldo vs. Clave, 19 SCRA 353 (1982). 31 Lupangco vs. Court of Appeals, G.R. No. L-77372, April 29, 1988. 32 G.R. No. 119761, August 29, 1996.

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persons before it. It is the power to hear and determine questions of fact to which the legislative policy is to apply and to decide in accordance with the standards laid down by the law itself in enforcing and administering the same law. The administrative body exercises its quasi-judicial power when it performs in a judicial manner an act which is essentially of an executive or administrative nature, where the power to act in such manner is incidental to or reasonably necessary for the performance of the executive or administrative duty entrusted to it. In carrying out their quasi-judicial functions the administrative officers or bodies are required to investigate facts or ascertain the existence of facts, hold hearings, weigh evidence, and draw conclusions from them as basis for their official action and exercise of discretion in a judicial nature. Since rights of specific persons are affected it is elementary that in the proper exercise of quasi-judicial power due process must be observed in the conduct of the proceedings. (Emphasis supplied)”

58. It is evident that the Order reassigning Appellant was

not issued after a consideration and as a disposition of conflicting

claims. Appellee, in fact, describes the reassignment as a

“management prerogative”33, effectively admitting that it was an

administrative, and not a quasi-judicial, act.

B. This Honorable Commission is

mandated by law to take cognizance of the instant case.

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59. This Honorable Commission cannot abdicate itself

from the responsibility of acting on Appellant’s appeal. No less

than the Constitution mandates this Honorable Commission, as

the “central personnel agency of the government,”34 to “decide by a

Majority vote of all its Members any case or matter brought before

33 Appellee’s Comment, p. 3. 34 1987 Constitution, Article IX (B), Section 3.

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it within sixty days from the date of its submission for decision or

resolution.”35

60. Moreover, Section 26 of the Administrative Code of

1987 (Executive Order No. 292) specifically vests this Honorable

Commission with jurisdiction over personnel actions, which

includes transfer and reassignment, in accordance with the rules

promulgated by the Commission.36 Accordingly, Section 71 of the

Uniform Rules on Administrative Cases in the Civil Service,

pertaining to other personnel and non-disciplinary actions,

provides:

“Section 71. Complaint or Appeal the Commission. – Other personnel actions, such as, but not limited to separation from service due to unsatisfactory conduct or want of capacity during probationary period, dropping from the rolls due to Absence Without Official Leave (AWOL), physically and mentally unfit, and unsatisfactory or poor performance, action on appointments (disapproval, invalidation, recall, and revocation), reassignment, transfer, detail, secondment, demotion, or termination of services, may be brought to the Commission, by way of an appeal.” (Emphasis supplied)

61. Indeed, this Honorable Commission’s authority to take

cognizance of Appellant’s appeal of his reassignment is undeniable.

As the Chairperson interestingly notes her Dissenting Opinion,

35 1987 Constitution, Article IX (A), Section 7. 36 Book V, Title I(A), Chapter V, Section 26 of the Administrative Code of 1987 provides:

“Section 26. Personnel Actions. x x x As used in this Title, any action denoting the movement or

progress of personnel in the civil service shall be known as personnel action. Such action shall include appointment through certification, promotion, transfer, reinstatement, re-employment, detail, reassignment, demotion, and separation. All personnel action shall be in accordance with such rules, standards and regulations as maybe promulgated by the Commission.”

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Appellant’s appeal is not novel to this Honorable Commission. In

fact, in CSC Resolution No. 03-066937 (penned by the same

ponente of the subject Resolution, Honorable Commissioner

Valmores), this Honorable Commission, without question, gave due

course to Ms. Virginia L. Trinidad’s appeal of her reassignment to

an inexistent position in the Commission on Internal Revenue.

Appellant now wonders why this case elicited a different treatment

from the Honorable Commissioner.

II. THE HONORABLE COMMISSION ERRED IN RULING THAT APPELLANT DOES NOT HAVE SECURITY OF TENURE.

62. Notwithstanding its position that this Honorable

Commission lacks of jurisdiction over Appellant’s appeal, the

Majority discussed the merits of the case but incorrectly ruled that

Appellant does not enjoy security of tenure as DepED Secretary.

A. Appellant’s appointment as

DepED Undersecretary is not coterminous.

--------------------------------------------------------- 63. The Majority denied Appellant’s right to security of

tenure by arguing that Appellant’s appointment as DepED

Undersecretary was coterminous; hence, Appellant serves only at

the pleasure of the President as appointing authority. In support

thereof, the Majority relied on the 11 November 2002 and 23

September 2004 appointments38 issued to Appellant. Both of these

appointments, expressly qualifying the appointment as 37 Promulgated on 10 June 2003. 38 Annexes “1” and “2”, respectively, of Appellee’s Comment.

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“coterminous with the appointing authority”, are attached to

Appellee’s Comment.

64. As the Honorable Chairperson rightfully noted,

Appellant was not personally furnished with a copy the 23

September 2004 appointment, the latest appointment on which the

Majority based its conclusions. Truth is, Appellant was apprised

thereof only through the copy39 attached in Appellee’s Comment.

Being unaware of the 23 September 2004 appointment, Appellant

did not take an oath pursuant thereto. The Majority confirmed

such lack of oath of office in its opinion stating:

“x x x There is no showing from the records, however, that Undersecretary Luz took an oath of office on the basis of this September 23, 2004 appointment. x x x”40

65. The absence of the oath of office, not to mention the

dubious issuance of the 23 September 2004 appointment, renders

the Majority’s contention that Appellant’s appointment was merely

coterminous untenable.

66. Without the oath, Appellant cannot be considered to

have accepted the 23 September 2004 “coterminous” appointment,

if indeed such was officially issued. Book I, Chapter 10, Section 40

of the Administrative Code of 1987 expressly requires all public

officers to take an oath of office, to wit:

“Sec. 40. Oaths of Office for Public Officers and Employees. – All public officers and employees of the government including every member of the armed forces shall, before entering upon the discharge of his duties, take an oath or affirmation to defend the

39 Annex “2” of Appellee’s Comment. 40 Majority Opinion, p. 5.

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Constitution; that he will bear true faith and allegiance to it; obey the laws, legal orders and decrees promulgated by duly constituted authorities; will well and faithfully discharge to the best of his ability the duties of the office or position upon which he is about to enter, and that he voluntarily assumes the obligation imposed by his oath of office, without mental reservation or purpose of evasion. Copies of the oath shall be deposited with the Civil Service Commission and the National Archives.” (Emphasis supplied)

67. The Supreme Court’s holding in Lecaroz vs.

Sandiganbayan41 (appropriately cited in the Dissenting Opinion, p.

19) bolsters the need for an oath of office, thus:

“To be sure, an oath of office is a qualifying requirement for a public office; a prerequisite to the full investiture with the office. Only when the public officer has satisfied the prerequisite of oath that his right to enter into the position becomes plenary and complete. Until then, he has none at all.”

68. Considering the foregoing, what then is the basis of

Appellant’s appointment? The answer is not the 11 November 2003

“coterminous” appointment, but another appointment issued to

Appellant only a day thereafter.

69. Intriguingly, Appellee attached to his Comment copies

of the two (2) coterminous appointments (dated 11 November 2002

and 23 September 2004), but failed to include a copy of the 12

November 2002 appointment.

70. The existence of the 12 November 2002 appointment is

undisputed. The Career Service Executive Board (“CESB”), in its

Resolution No. 545 dated 10 August 2004,42 confirmed that:

41 G.R. No. 130872, March 25, 1999. 42 Annex “B” of the Appeal.

25

“…Mr. Luz left government service in 1992 and was appointed to his present position on November 12, 2002.”

71. Even the Majority acknowledged the existence of the

12 November 2002 appointment in its narration of facts.43

However, it seems to have neglected, if not deliberately ignored, the

import of such appointment in the case at bar.

72. Notably, the appointment issued to Appellant on 12

November 2002 was not qualified as coterminous, viz:

“Pursuant to the provisions of existing laws, you are hereby appointed UNDERSECRETARY, DEPARTMENT OF EDUCATION, vice Ernesto de los Santos Pangan.

By virtue hereof, you may qualify and enter

upon the performance of the duties of the Office, furnishing this Office and the Civil Service Commission with copies of your oath of office.”

73. Importantly, Appellant took his oath of office44

pursuant to the 12 November 2002 appointment.

74. Following the oath requirement in the Administrative

Code as well as the holding in Lecaroz, Appellant holds office as

DepED Undersecretary based on the 12 November 2002

appointment, which is not coterminous. Clearly, Appellant cannot

be dismissed from office at the pleasure or whim of the President.

He has security of tenure.

43 Majority Opinion, p. 4. 44 Annex “B” hereof.

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B. Appellant is fully qualified for the position of Undersecretary.

---------------------------------------------------- 75. The Majority further posited that Appellant’s

appointment is not permanent, and therefore, he does not have

security of tenure. They based their contention on Section 27 (1),

Chapter 5, Book 5 of the Administrative Code of 1987, which

defines a permanent appointment in the career service as follows:

“(1) Permanent status. A permanent appointment shall be issued to a person who meet (sic) all the requirements for the positions (sic) to which he is being appointed, including the appropriate eligibility prescribed, in accordance with the provisions of law, rules and standards promulgated in pursuance thereof.” (Emphasis supplied)

76. Under the Qualification Standards Manual (Revised

1997) of this Honorable Commission, a Department

Undersecretary must meet the following requirements:

(a) Bachelor’s degree;

(b) Three (3) years supervisory experience; and

(c) Career Executive Service Eligibility (“CESE”).

77. Appellant meets all of the aforesaid requirements. He

has a Bachelor’s degree in Liberal Arts from St. Mary’s College in

California and even has a Master’s Degree in Public Administration

from the John F. Kennedy School of Government, Harvard

University. He has more than three (3) years of supervisory

experience both in the government and private sector.45

Importantly, Appellant is CES Eligible as confirmed by the CESB in

45 See paragraphs 2-6 of the Appeal.

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its Resolution No. 54546 and in the 21 September 2005 letter-reply

of its Executive Director Mary Ann Z. Fernandez-Mendoza47.

78. Apparently, the Majority did not consider Appellant’s

sterling qualifications as sufficient compliance with the

requirements under the Qualification Standards Manual. This is

because the Majority improperly construed and expanded the last

requirement of CES eligibility to mean that Appellant must

specifically be a CESO Rank I. The Majority reasoned that since

Appellant only possesses CESO Rank III, he fails to satisfy the

minimum qualifications for an Undersecretary. Accordingly, the

Majority held that Appellant’s appointment is merely temporary.

79. The Majority’s interpretation of the CES eligibility

requirement, adding qualifications beyond those expressly stated

in the Qualifications Standards Manual, defies elementary rules of

statutory construction. Expressum facit cessare tacitum.48 What is

expressed puts to an end that which is implied. In other words,

where a law, by its terms, is expressly limited to certain matters, it

may not, by interpretation or construction, be extended to other

matters.49 Hence, the Majority cannot impose qualifications other

46 Annex “B” of the Appeal. In Resolution No. 545, the CESB restored the CESO Rank III of Appellant. 47 Annex “F” of the Appeal. In the 21 September 2005 letter-response of the CESB to Appellant, the CESB Executive Director confirmed that Appellant is “a CES eligible occupying a career position in the Dep Ed’s plantilla with item no. OSEC-DECSB-DEUSEC-4-1998”. 48 This is a variation of the maxim expresio unius est exclusio alterius or the express mention of one person, thing, or consequence implies the exclusion of all others (Agpalo, infra). 49 Hong Kong & Shanghai Bank vs. Peters, 16 Phil. 824 (1910); Collanta vs. Carnation Phil., Inc., 145 SCRA 268 (1986), cited in Agpalo, Ruben E., Statutory Construction, 4th ed., 1998, at 221.

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than those expressly stated in the Qualifications Standards

Manual.

C. Jurisprudence cited by the

Majority are not applicable to Appellant’s case.

----------------------------------------------------- 80. To bolster their claim that Appellant is not qualified for

the position of Undersecretary because he only has CESO Rank III,

the Majority quoted the rulings in Dimayuga vs. Benedicto, et al.,50

Achacoso vs. Macaraig,51 General vs. Roco,52 and Cuevas vs.

Bacal53. In these cases, the Supreme Court held that for an

appointment to be permanent (and, consequently, for the

appointee protected with security of tenure), the appointee must

possess the rank appropriate to the position. Further, the Majority

relied on these cases in contending that “security of tenure in the

career executive service pertains only to rank and not to the office

or the position to which they maybe appointed…,”54 thereby,

affirming the Appellee’s argument that Appellant’s permanent

status or security of tenure pertains only to the CES, but not to the

specific position of Undersecretary. For the Majority, the President

may freely move Appellant to any other position in the

bureaucracy, provided there is no diminution in the rank he holds.

50 373 SCRA 652. 51 G.R. No. 93023, March 13, 1991. 52 G.R. No. 143366, January 29, 2001. 53 G.R. No. 139382, December 6, 2000. 54 Majority Opinion, p. 9.

29

81. The Majority’s reliance on the aforesaid cases is

misplaced.55 As the Honorable Chairperson of this Commission

succinctly explained:

“While the Supreme Court decisions on the Bacal and Roco cases may have been applicable years ago, these are no longer controlling today. At that time, the rule was that for a CESO to have security of tenure, his/her CESO rank must correspond to the position he/she is holding, that is, he/she must have the appropriate rank. Corollary to this, it was also the rule that a promotion in position merits a corresponding adjustment in rank. Neither was the rank promotion ladderized. Thus, by merely adjusting the rank, as CESO VI can become CESO I if he/she is appointed to an Undersecretary position. Such a system played havoc with the principle of merit and fitness and careerism in the third level of the bureaucracy. Cognizant of the deleterious effects the two decisions had on the security of tenure of career officials, such that every time they get promoted in (sic) position there will necessarily be a time wherein he/she would be insecure because his/her rank is no longer appropriate to the new position and has yet to be adjusted to the appropriate rank, the CES Board, as early as 2002, via Resolution No. 453 (Revised Policy on Original and Promotional Appointment to Career Executive Service Ranks) has already changed the rules. The correspondence or equivalence between rank and position no longer exists. CESOs are now required to start at rank VI regardless of the position they are holding. Also, promotion in the position does not mean that the CESO will get a corresponding promotion in rank. The CESB has set the requirements that a CESO must meet before he/she can be promoted in rank.”56 82. The CESB clarified this shift from the rule prevailing

during the time of Bacal and Roco to its new policy in Resolution

No. 548 s. 200457 as follows:

“x x x x x x x x x

55 See also Appellant’s Reply to Comment, paragraphs 4-7. 56 Dissenting Opinion, p. 12. 57 Revised Policy on Security of Tenure.

30

WHEREAS, in the case of Secretary of Justice vs. Serafin Cuevas vs. Bacal (G.R. No. 139382 dated December 6, 2000), the Supreme Court ruled that security of tenure in the career executive service is thus acquire with respect to rank and not to position and that the guarantee of security of tenure to the members of the CES does not extend to the particular positions to which they maybe appointed – a concept which is applicable only to first and second-level employees in the civil service – but to the rank to which they are appointed by the President;

WHEREAS, in the case of Luis Mario M. General vs. Ramon S. Roco (G.R. No. 143366 dated January 29, 2001), the Supreme Court ruled that two requisites must concur in order that an employee in the career executive service may attain security of tenure, to wit: a) CES Eligibility; b) Appointment to the appropriate CES rank;

WHEREAS, the above-stated rulings of the Supreme Court were based primarily on the policies, rules and regulations then of the CESB, which were quoted by the said court in the afore-cited cases;

WHEREAS, the above said policy set by the Board upon which the “appropriate rank” ruling of the Supreme Court in the case of Roco vs. General was based has already been revised by the Board through CESB Resolution No. 455 s. 2002 which states, that a CESO is considered a permanent employee and, therefore, guaranteed security of tenure in the CES regardless of the CES position he/she occupies or the rank/level to which he/she is appointed;

x x x x x x x x x

NOW THEREFORE, foregoing premises considered, the Board RESOLVES as is hereby RESOLVED to revise the policy on security of tenure in the Career Executive Service (CES) in conformity with the pertinent policies of the Civil Service Commission (CSC) for third level qualified incumbents. Henceforth, attainment of CES Eligibility by an incumbent of a CES position is enough to enjoy security of tenure in the CES provided he or she has met the other basic requirements of the position established in the qualification standards set or approved by the Civil Service Commission based on the recommendation of the Department or Agency concerned;

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x x x x x x x x x” (Emphasis supplied)

83. Based on the foregoing, Appellant, being CES Eligible

as certified by the CESB,58 is a permanent employee entitled to

security of tenure. The Majority’s contention that Appellant is

holding a position not equivalent to his CES rank is, therefore, of

no moment. Indeed, as the Honorable Chairperson correctly

pointed out, to apply the Bacal and Roco rulings to the case at

hand “would only result in injustice. Had the rules not been

changed, Luz could have had his rank adjusted to CESO I by

virtue of his appointment as Undersecretary.”59 This Honorable

Commission should not allow itself to become a vehicle of such

injustice.

III.

THE HONORABLE COMMISSION ERRED IN RULING THAT APPELLANT’S TRANSFER WAS LEGAL.

A. Appellant’s reassignment does not

comply with the requirements for the application of the mobility principle.

---------------------------------------------------- Appellant’s reassignment was not made in the interest of public service.

84. The Majority sanctioned Appellant’s reassignment

under the mobility principle.60 However, as extensively discussed

in the Appeal, the application of the mobility principle is subject to

58 See Annexes “B”, “E” and “F” of Appeal. 59 Dissenting Opinion, p. 12. 60 Majority Opinion, p. 9.

32

certain requirements laid down in CESB Resolution No. 548 s.

2004, thus:

“RESOLVED FURTHER, that notwithstanding the permanent status of appointment of a third level official, he/she is covered by the mobility principle enshrined under Article IV, Part III of the Integrated Reorganizational Plan, as approved by Presidential Decree 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 contrary notwithstanding, members of the Career Executive Service may be reassigned or transferred from one position 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.’

RESOLVED FURTHERMORE, to ensure compliance to (sic) the above-quoted mobility principle, reassignment or transfer shall be effected only upon the availability of the corresponding position, it being understood that a “floating status” is not within the contemplation of this principle. Assignment to a CESO pool shall not be considered as a floating status.” (Emphasis supplied)

85. Simply put, a transfer or reassignment of a CESO

under the mobility principle must comply with the following

requisites:

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

employee’s last transfer or reassignment; and

33

d. It must be effected only upon the availability of a

corresponding position.

86. The Majority considered the public interest

requirement satisfied by the letter of Department of Labor and

Employment (“DOLE”) Secretary Patricia Sto. Tomas (dated 23

September 2005),61 requesting that Appellant be transferred to the

DepED. Notably, such letter came after Appellee’s 13 September

2005 letter62 thanking Appellant for his services as Undersecretary

(or after the “euphemistically-packaged” termination letter as aptly

termed by the Honorable Chairperson in her Dissenting Opinion63),

and Malacañang’s press releases about Appellant’s termination.

Obviously, Secretary Sto. Tomas’ request is nothing but a mere

afterthought issued to subterfuge the initial scheme to remove

Appellant.

87. Furthermore, as the Honorable Chairperson correctly

held, Appellant’s exemplary service and expertise will better serve

the DepED which has a substantially bigger budget and number of

personnel than DOLE. In addition, DepED, unlike DOLE, does not

have full management complement. DepED operates without a

head and with only two (2) undersecretaries (one of whom acts as

department Secretary), in case Appellant is reassigned.64

88. Appellant agrees with the Majority that the

determination of whether a reassignment is made in the interest of

61 Annex “Q” of the Appeal. 62 Annex “C” of the Appeal. 63 Dissenting Opinion, p. 16. 64 Dissenting Opinion, pp. 18-19;

34

public service is within the sound discretion of the President. But

Appellant also agrees with the lone dissenter that the appointing

authority’s prerogative in such case is not absolute. It is subject to

limitations such as the requirements laid down in CESB

Resolution No. 548, and must always be exercised in good faith.

89. The principle enunciated by this Honorable

Commission’ in the appeal of Trinidad, Virginia L. Re Appeal,

Reassignment65 (also penned by the Honorable Commissioner

Valmores) is instructive:

“While it is true that reassignment is a management prerogative which the Commission does not normally interfere with, the same is true only, as held in CSC Resolution No. 96-3651, absent the showing of grave abuse of discretion. In other words, grave abuse of discretion must be clearly shown in order that the Commission may take up the cudgels for the employee reassigned (MONTIEL, Rolando, CSC Resolution No. 94-1006, February 17, 1994. The authority under the law is not intended as a convenient weapon for the appointing authority to harass or oppress a subordinate on the pretext of advancing and promoting public interest (INHAYES, Oscar J., CSC Resolution No. 98-16-08, June 24, 1998).” (Emphasis supplied)

90. Neither can the Majority invoke the presumption of

regularity in effecting Appellant’s reassignment. As will be

explained in the following paragraphs, such presumption is

rebutted by evident bad faith and political motives behind the

reassignment.

65 CSC Resolution No. 030669, June 10, 2003.

35

Appellant’s reassignment effectively results in a floating status, if not a reduction in rank or salary. 91. The 4 October 2005 Order, 66 reassigning Appellant to

the DOLE, does not specify the position to which Appellant will be

transferred. Without such a position, the apparent intent of

Malacañang is to “float” the Appellant as a punishment, in clear

violation of CESB Resolution No. 548. Because the purpose of the

transfer order was to put Appellant on “floating” status, the

Appellant is deemed to be have been constructively dismissed.

This especially so since the Appellant would then find his situation

in the DOLE intolerable and humiliating such that he would have

to eventually resign from the government service.

92. Presently, there is no vacant or available

Undersecretary position in the DOLE. Thus, even if Appellant is

placed under a new designation, his office will definitely be a lower

position, resulting in a diminution of his rank and salary.

93. The Majority admits that the “reassignment of

Undersecretary Luz may not perfectly conform to the provisions of

the said CESB Resolution (CESB Resolution No. 548).”67 They,

however, contend that non-compliance therewith is immaterial in

light of the rulings of the Supreme Court in the cases of Dimayuga,

Roco and Bacal. According the Majority as between the CESB

Resolution which is merely an administrative rule and the cited

jurisprudence, the latter prevails.

66 Annex “A” of the Appeal. 67 Majority Opinion, p.10.

36

94. The Majority’s contention does not hold water. First, as

explained above, the cases cited by the Majority precisely are

inapplicable to Appellant’s case, because of the change in the

CESB policy. The Supreme Court in crafting jurisprudence,

decides cases in accordance with the prevailing and applicable law,

including administrative rules and regulations.

95. Secondly, as the Honorable Chairperson of the

Commission correctly explained in her Dissenting Opinion, the

CESB as an administrative agency has full authority to promulgate

and, accordingly, change and construe its rules and regulations.68

B. Appellant’s reassignment is

politically motivated and tainted with bad faith.

---------------------------------------------------- 96. The Majority sweepingly set aside Appellant’s

allegation of bad faith. Amidst the screaming backdrop of political

manipulation, the Majority denied the presence of any political

motive.69

97. A careful examination of the events that transpired

prior to Appellant’s transfer, however, shows that Appellee’s act

was tainted with bad faith and motivated by purely political

reasons. Quite clearly, the Appellant was removed because he was

an obstacle to the wishes of the President that she distributes the

Presidential Social Fund with no restrictions, and even when funds

68 Collector of Internal Revenue vs. Ledesma, G.R. No. L-17509, January 30, 1970). 69 Majority Opinion, p. 9.

37

are not available, hence the post-dated checks. The Palace

demands blind obedience, and this the Appellant could not give.

98. Appellant and the Majority downplay Malacañang’s

financial maneuverings, which Appellant rightfully refused. Both

Appellant and the Majority conveniently omitted this from their

narration of facts and deliberately failed to address the issue of the

post-dated checks. The various documents (the post-dated checks,

disbursement vouchers, etc.)70 evidencing Malacañang’s attempt to

carry out an illegal disbursement of public funds, however, belie

the Appellant and the Majority’s denial by silence.

99. Moreover, as the pointed out in the Dissenting

Opinion, Appelee’s bad faith is apparent from the deliberate

omission of Appellant’s 12 November 2002 appointment in

Appellee’s Comment. Said appointment, unlike the two (2) others

dated 11 November 2002 and 23 September 2004, do not qualify

Appellant’s appointment as coterminous. Furthermore, the 12

November 2002 appointment is the basis of his title to office in the

instant case since it was pursuant thereto that Appellant took an

oath of office.

100. Appellee very well knew that Appellant is a CESO

with a constitutionally guaranteed right to security of tenure, yet it

sought to dismiss Appellant through a termination letter dated 13

September 2005, only four (4) days after Appellant decided to

transfer back to the PSF the three (3) checks supposedly for

70 See Annexes “I” – “P” of the Appeal.

38

Congressman Diaz. The timing betrays Malacañang ’s political

motives behind Appellant’s termination.

101. This Honorable Commission and the CESB have

both 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 Appellant’s

removal from the DepEd, Malacañang qualified on 23 September

2005, i.e. ten (10) days after the issuance of the termination letter,

that Appellant was “terminated as undersecretary (of education)

but not as CESO”. Malacañang later changed its stance and

disguised the termination as “a reassignment to some other

government position of the same rank”.71

102. Malacañang ’s cover-up did not end with its conflicting

declarations. Knowing that the termination (disguised as

reassignment) is patently illegal, Malacañang deviously made it

appear that Appellant resigned and that it merely allowed

Appellant to continue its services as some form of accommodation.

Worse, Malacañang declared all these through press releases,

obviously to humiliate Appellant before the public.

103. 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

71 See Annexes “H-series” of Appeal.

39

sufficient cause.72 As this Honorable Commission has consistently

ruled, “(t)he authority (to transfer employees) under the law is not

intended to harass or oppress a subordinate on the pretext of

advancing and promoting public interest”73.

104. This Honorable Commission can draw guidance from

the Supreme Court’s ruling in Pangilinan vs. Maglaya,74 protecting

government employees from political vendetta. In said case, the

Acting Executive Director of the Land Transportation Office was

separated from service the day after his public exposes on the

anomalies involving his superiors and his threat to file 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 the real

political motives behind dismissals and declare that the removal,

in fact, constitutes grave abuse of discretion:

“It is not difficult to see that the petitioner was replaced because of his expos and his threat to bring charges against his superiors. His relief was clearly an act of punishment if not personal vengeance. This is not denied. The respondents, while invoking the law to justify his separation, 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 civil servant could be summarily removed from his position for the "sin" of complaining about the irregularities of his superiors. This would not only impair the integrity of the civil service but also

72 Philippine American Life and General Insurance Co. vs. Gramaje, G.R. No. 156963, November 11, 2004. 73 Civil Service Commission Resolution No. 030669, June 10, 2003 citing CSC Resolution No. 98-16-08, June 24, 1998. 74 G.R. No. 104216, August 20, 1993.

40

undermine the campaign to encourage the public, including those in the civil service, to expose and denounce venality in government. Pangilinan's denunciation of the non-reflective license plates was not the act of a rabble-rouser or a publicity-seeker. The record shows that he quietly brought the matter to the attention of his superiors, giving reasons for his misgivings. They took no action. Feeling frustrated, he sought the attention of the media and told them of his objection to the non-reflective license plates. He cited the laws that he claimed had been violated. He narrated his efforts to prevent their violation. He spoke of the indifference of his superiors. In doing all these, he was exercising his right as a citizen, and especially as a civil servant, to denounce official misconduct and improve the public service.

x x x x x x x x x Pangilinan was separated the day immediately following his press conference. The Court sees the action as a retaliation. The public respondents say they were merely terminating his incumbency in accordance with existing law. The Court sees that termination as a punishment. Under the expanded definition of judicial power in Article VIII, Section 1, of the Constitution, the Court can declare the acts of the public respondents as tainted with grave abuse of discretion and therefore invalid.” (Emphasis supplied)

105. All told, Appellant humbly and respectfully submits

that this Honorable Commission’s Resolution outrightly dismissing

his Appeal deserves to be re-examined to conform with law and the

evidence presented, and, ultimately, to afford justice to public

servants who continue to uphold honesty and integrity despite

political pressure.

41

PRAYER WHEREFORE, in view of the foregoing, it is respectfully

prayed that:

1) Resolution No. 06-0216 promulgated by this

Honorable Commission on 1 February 2006 be set

aside;

2) Appellant’s appeal of the Order dated 4 October 2005,

signed by the Appellee, be given due course;

3) The Order dated 4 October 2005 reassigning Appellant

to the Department of Labor and Education be nullified

as illegal; and

4) Appellant be retained as Undersecretary for Finance

and Administration of the Department of Education.

Other reliefs, just and equitable in the premises, are likewise

prayed for.

Quezon City, 20 February 2006.

Counsel for Appellant:

ROWENA V. GUANZON PTR No. 01321430, 1/17/04, Cadiz City IBP Lifetime 1020636, 8/20/04, Bacolod

Roll No. 33534

DAMCELLE S. TORRES PTR NO. 4181522/1-03-2006/ Makati IBP NO. 665395/1-05-2006 Laguna Roll of Attorney No. 49400

42

MAE NIÑA REYES PTR No. 7358436 / 1-31-06 / Q.C. IBP No. 646026 / 1-31-06 / Q.C. Roll of Attorney No. 151262

Suite 311 Centro Plaza Scout Torillo corner Scout Madrinan South Triangle, Quezon City 1103 Copy furnished: Secretary Eduardo Ermita Office of the Executive Secretary Registered Mail No. ________ Malacañang Palace Date _______________________ Manila City

EXPLANATION

For lack of personnel, a copy of the foregoing Motion for Reconsideration was served by registered mail, rather than by the preferred mode of personal service.

MAE NIÑA REYES