G.R. No. 85670 July 31, 1991 ROGELIO A. TRIA petitioner, vs. CHAIRMAN PATRICIA A. STO.

TOMAS, CIVIL SERVICE COMMISSION, RET. BRIG. GEN. JOSE T. ALMONTE, RET. COL. ERNESTO P. RAVINA and RET. GEN. MIGUEL M. VILLAMOR, respondents. Florosco P. Fronda for petitioner.

FELICIANO, J.:p Petitioner Rogelio A. Tria had been employed with the Bureau of Intelligence and Investigation later renamed Finance Ministry Intelligence Bureau (FMIB) now known as the Economic Intelligence and Investigation Bureau (EIIB) of the Department of Finance, Region 5, Legaspi City, as a Management and Audit Analyst I, a position expressly described in the letter of appointment as "confidential." 1 The appointment was signed by Pelagio A. Cruz, Lieutenant General, AFP (Ret) Commissioner, FMIBI." 2 On 27 September 1984, petitioner wrote a confidential report to the FMIB Deputy Commissioner detailing the nonfeasance of a FMIB lawyer assigned to Region 5. Petitioner's report recommended the lawyer's replacement "With a competent and able lawyer to handle the cases brought to his attention." 3 On 14 October 1986, petitioner submitted another confidential report, addressed to the Deputy Executive Secretary, Office of the President, this time concerning Col. Jackson P. Alparce (Ret.). FMIB Region 5 Director. On 20 October 1986, petitioner filed an application for vacation leave for 100 working days, covering the period 1 November 1986 to 30 April 1987. Petitioner sought to take advantage of a Civil Service circular which allows employees who propose to seek interim employment abroad, to go on prolonged leave of absence without pay without being considered separated from the service. 4 The application was approved by his immediate supervisor and Chief, Intelligence and Investigation Service, Col. Ruperto Amistoso (Ret.), and the personnel officer, Col. Domingo Rodriguez (Ret.), both based in the Region 5 office of the FMIB. On 23 October 1986, when petitioner was already in Manila attending to the processing of his travel papers, a Memorandum was sent to him in Legaspi City from the FMIB Central Office in Quezon City by respondent Assistant FMIB Commissioner Brig. Gen. Miguel Villamor (Ret.), referring to the confidential report sent out to the Office of the President. The Memorandum in part stated:
Be reminded that as an agent of FMIB, it is inherent in your duties to report to the Commissioner or other authorities of FMIB of any irregularity committed by

employees/officials in that Region [5] to enable them to take appropriate action/investigation and/or disciplinary action. However, it appears that you opted to submit said report directly to the Office of the President, Malacaang which adversely affected the Bureau's image and placed the Commissioner in an embarrasing position. In view thereof, you are required to submit your explanation in writing within five (5) working days from receipt hereof why no disciplinary action should be taken against you for non-compliance with office rules and regulations. 5

Since petitioner had failed to receive and hence to respond to the above Memorandum, another Memorandum from Quezon City dated 17 November 1986 was issued, this time by respondent Col. Ernesto Rabina (Ret.), Chief, Administrative Service, FMIB, reminding petitioner of his duty to submit the required written explanation. That Memorandum went on to state:
Be informed further that your application for sick [should have been vacation] leave dated October 22, 1986 . . . has been disapproved pursuant to Sec. 16 of Civil Service Rule No. XVI which reads thus: "Leave of absence for any reason other than serious illness must be contingent upon the needs of the service." Inasmuch as your services in that Region [5] is (sic) needed, you are directed to report for work thereat within ten (10) working days from the date of this Memorandum otherwise, this office will be constrained to drop you from the rolls of FMIB for prolonged/unauthorized absence and non-compliance with office rules and regulations. 6

Petitioner, however, had already left the country on 26 October 1986, and was unable to comply with the express directives of the second Memorandum. He was therefore considered to be on absence without official leave (AWOL). This prolonged absence, as well as his failure to explain his sending out the confidential report to Malacaang, prompted respondent EIIB Commissioner Brig Gen. Jose Almonte (Ret.) to issue LetterOrder No. 06-87 dated 12 January 1987 informing petitioner of the termination of his services retroactive to "1 November 1986 for continuous absence without official leave and for loss of confidence." 7 It was upon his return to the country sometime in May 1987 that petitioner came to know of the abovementioned Letter-Order and of the two Memoranda. In a letter dated 20 May 1987 to respondent Almonte, petitioner asked for reinstatement, stating that his application for vacation leave had been approved by his immediate chief and the personnel officer. With respect to the confidential report he had addressed to the Deputy Executive Secretary, petitioner explained:
. . . I would like to state that the reason why I submitted my report to the Office of the President is precisely to protect the image of the bureau. Earlier, I handed a report to the then Deputy Commissioner Mendoza regarding said irregularities committed sometime in 1984-85, particularly by Atty. Geronga, R-5 and Director Col. Alfarce No investigation was undertaken inspite of my report. In the meanwhile, the FMIB-R-5 always appeared in the local newspaper regarding the unscrupulous behavior of the director which not only affects the good image of our organization but also of the subordinates of the office. Thus, I felt in

goodfaith that the matter should be brought to the attention of the Deputy Executive Secretary of Malacaang so that appropriate action can be taken for the good of the service. I submit that I did this in my honest belief that it is my duty to do so as a public servant and a loyal member of this organization. . . . I reiterate that the same was done in good faith and not for any selfish motive. 8

Reinstatement was, however, denied by respondent Rabina in a letter dated 11 August 1987, which in part read:
xxx xxx xxx Be informed that Commissioner, EIIB has directed the Investigation & Prosecution Office this bureau to conduct a brief investigation on your case and the established facts show that this office committed no injustice. Your violation of office rules and regulations were the grounds for your termination for loss of confidence. 9

Petitioner's request for payment of the cash equivalent of his accrued leave credits corresponding to a total of 179 days was also denied by respondent Villamor on the ground that:
. . . Section 6 of the Civil Service rules and laws provides that IX . . . the removal for cause of an official or employee shall carry with it forfeiture of . . . other benefits arising from his employment. 10

Petitioner then filed a petition for review with prayer for reinstatement and backwages before respondent Civil Service Commission ("Commission") which the Commission denied. Respondent Commission held that the grant of petitioner's application for vacation leave, notwithstanding the accumulation of sufficient leave credits, was discretionary on the part of respondent Rabina, the approving official, citing In re: Nicolasura Victor (CSC Res. No. 88-251) dated 25 May 1988 and Section 20 of the Revised Civil Service Rules which read:
Leave of absence for any reason other than the serious illness of an officer or employee . . . must be contingent upon the needs of the service. 11

Having failed to get reconsideration, petitioner came to this Court on the present Petition for Certiorari. Petitioner challenges his dismissal as being arbitrary. The propriety of petitioner's alleged unlawful removal boils down to the question of whether or not an employee holding a position considered as "primarily confidential" may be dismissed on grounds of "loss of confidence" by the appointing authority on the basis of the employee's having gone on unauthorized leave of absence and of his having filed a confidential report on one of his superiors directly with the Office of the President. We begin with the proposition that the effects of characterizing a position as "primarily confidential" are two-fold: firstly, such characterization renders inapplicable the ordinary requirement of filling up a position in the Civil Service on the basis of merit and fitness

as determined by competitive examinations; and secondly, while the 1987 Constitution does not exempt such positions from the operation of the principle set out in Article IX (B), Section 2 (3) of the same Constitution that "no officer or employee of the Civil Service shall be removed or suspended except for cause provided by law," the "cause provided by law" includes "loss of confidence." 12 It is said to be a settled rule that those holding primarily confidential positions "continue for so long as confidence in them endures. Their termination can be justified on the ground of loss of confidence because in that case their cessation from office involves no removal but the expiration of their term of office. 13 Notwithstanding the refined distinction between removal from office and expiration of the term of a public officer, the net result is loss of tenure upon loss of confidence on the part of the appointing power. A position in the Civil Service may be considered primarily confidential: (1) when the President of the Philippines, upon recommendation of the Civil Service Commission, has declared that position to be primarily confidential; or (2) when the position, given the character of the duties and functions attached to it, is primarily confidential in nature. 14 All positions in the EIIB were apparently declared as "highly confidential" by former President Marcos in Letter of Implementation No. 71, dated 4 September 1978, which reads in part as follows:
Pursuant to Presidential Decree No. 1458, dated June 11, 1978, and letter dated August 18, 1978 of the President/Prime Minister creating the Bureau of Intelligence and Investigation (BII) [now the EIIB], the following directives are hereby issued for immediate implementation by the new Bureau: xxx xxx xxx 4. The Commissioner of the BII with the approval of the Ministry of Finance, is hereby instructed to organize and appoint his staff . . . All positions in the BII are highly confidential in nature and incumbents thereof may be removed for loss of confidence by appropriate authority. 15

When one examines, however, the actual duties and functions of petitioner as a "Management and Audit Analyst I" in the FMIB, as set out in the job description of that position, one is struck by the ordinary and day to day character of such duties and functions:
Prepares required survey materials, work plans and schedules; gathers data and makes investigations and analyzes (sic) of administrative problems relating to organization, personnel and procedure; supplements data gathered by interviewing heads of office or private individuals or by observing actual operations; examines and analyzes reorganization proposals in the light gathered and facts observed; analyzes causes of inefficiency or lack of economy, undertakes required study and research; prepares survey reports and write (sic) drafts of tentative organization plans, discusses and justifies such plans to supervisor and appropriate bodies; maintains close liaison work with head of offices or organizations studies operational methods and procedures of the organization to simplify the work and improve efficiency; studies and recommends measures to insure industrial safety and prevention of accidents; supervises the installation of management control devices; assists in the compilation, analysis and interpretation of important statistics for use of management. 16 (Emphasis Supplied)

It is thus useful to recall that in Piero v. Hechanova, 17 the Court, speaking through J.B.L. Reyes, J., said:
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. 18 (Citation omitted; emphasis partly in the original and partly supplied)

The above doctrine was reiterated and relied upon in Borres v. Court of Appeals. 19 It is also important to note that the concept constitutive of "primarily confidential" positions has been narrowly drawn by this Court. Thus, in De los Santos v. Mallare, 20 the Court said, through Mr. Justice Pedro Tuason:
. . . [T]hree specified classes of positions policy determining, primarily confidential and highly technical are excluded from the merit system and dismissal at pleasure of officers and employees appointed therein is allowed by the Constitution. These positions involve the highest degree of confidence, or are closely bound up with and dependent on other positions to which they are subordinate, or are temporary in nature. It may truly be said that the good of the service itself demands that appointments coming under this category be terminable at the will of the officer that makes them. xxx xxx xxx 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 [discussion and delegation and reporting] without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state. . . . . 21

The positions which this Court has in the past characterized as "primarily confidential" include: private secretaries of public functionaries; 22 a security officer assigned as bodyguard of the person of a public officer and responsible for taking security measures for the safety of such official, 23 City Legal Officer of Davao City vis-a-vis the Davao City Mayor; 24 Provincial Attorney of Iloilo Province vis-a-vis the Governor of Iloilo Province. 25 It is also instructive to refer to some of the positions which the Court has refused to designate as "primarily confidential:" e.g., members of the Customs Police Force or Port Patrol; 26 Special Assistant to the Governor of the Central Bank, in charge of the Export Department; 27 Senior Executive Assistant, Clerk I and Supervising Clerk I and stenographer in the Office of the President. 28 It is evident that the duties of petitioner related to the study and analysis of organizational structures and procedures, with the end in view of making recommendations designed to increase the levels of efficiency and coordination within the organization so analyzed. Moreover, the modest rank and fungible nature of the position occupied by petitioner, is underscored by the fact that the salary attached to it

was no more than P1,500.00 a month at the time he went on leave (October, 1986). There thus appears nothing to suggest that petitioner's position was "highly" or even "primarily confidential" in nature. The fact that petitioner may, sometimes, handle "confidential matters" or papers which are confidential in nature, does not suffice to characterize their positions as primarily confidential. 29 Accordingly, we believe and so hold that petitioner Tria's particular position of "Management and Audit Analyst I" is not a "primarily confidential" position so as to render him removable upon, or the expiration of his term of office concurrent with, "loss of confidence" on the part of the appointing power who, as already noted, was the then Commissioner of the FMIB. If petitioner Tria was not legally removable upon "loss of confidence" on the part of the FMIB Commissioner, was there nonetheless legal cause provided by law for his dismissal from the service? We believe that the constitutional prohibition against suspension or dismissal of an officer or employee of the Civil Service "except for cause provided by law" is a guaranty of both procedural and substantive due process. Procedural due process requires that suspension or dismissal come, as a general rule, only after notice and hearing. 30 In the case at bar, as already noted, the EIIB issued a Memorandum to petitioner, after he was already in Manila, requiring him to explain why no disciplinary action should be taken against him for having submitted a report directly to the Office of the President, Malacaang, 'which adversely affected the bureau's image and placed the Commissioner in an embarrassing position," which Memorandum was not received by petitioner. However, after his return from abroad and upon request of petitioner, another investigation was conducted by the EIIB where petitioner had an opportunity to explain his side of the matter. The Court considers that, under the circumstances of this case the subsequent investigation constituted substantial compliance with the demands of procedural due process. Substantive due process requires, among other things, that an officer or employee of the Civil Service be suspended or dismissed only "for cause," a phrase which, so far as concerns dismissals of public officers not holding positions which are "policy determining, highly technical or primarily confidential," has acquired, according to this Court, the following "well-defined concept."
It means for reasons which the law and sound policy recognize as sufficient warrant for removal, that is, legal cause, and not merely causes which the appointing power in the exercise of discretion may deem sufficient. It is implied that officers may not be removed at the mere will of those vested with the power of removal or without cause. Moreover, the cause must relate to and effect the administration of the office, and must be restricted to something of a substantial nature directly affecting the rights and interests of the public. 31

In the instant case, we have noted earlier that petitioner was charged with violation of official rules and regulations consisting more specifically, of:. (1) having gone on an extended unauthorized leave of absence; (2) having bypassed official channels in

transmitting a report concerning alleged misfeasance or non-feasance on the part of a superior officer of the EIIB directly to the Office of the President through the Deputy Executive Secretary, rather than through the respondent EIIB Commissioner. It is true that petitioner was probably precipitate in taking off for abroad before his application for vacation leave was formally approved by the FMIB Central Office in Quezon City. We must, however, take into account the circumstance that his application for leave without pay had been approved or indorsed for approval by his immediate superior in the FMIB, Region 5 Office, where petitioner was assigned, and so petitioner was not completely without basis in believing that the formal approval of his application in the FMIB Central Office would follow as a matter of course. It is pertinent to point out that his immediate superiors in the Region 5, FMIB Office were the persons in the best position to ascertain whether his presence in the Regional office during the period covered by his application for leave without pay was really demanded by imperious exigencies of the service. The record is bare of any indication what those exigencies were, at that particular time. There is also no showing that the FMIB actually suffered any prejudice by reason of the non-availability of the services of petitioner during his leave without pay. Petitioner was, it should be recalled, a "Management and Audit Analyst," a humble rank separated by many ranks from the appointing power, the FMIB Commissioner. It thus appears to the Court that, on balance, the extreme penalty of dismissal from the service was unduly harsh in the case of petitioner; that suspension for thirty (30) days would have been more than adequate punishment for precipitately going on leave without pay prior to formal approval of his leave by the Central Office of the FMIB; and that the real and efficient cause of his dismissal from the service was the fact that he had bypassed official channels in rendering the confidential report addressed to the Deputy Executive Secretary, Office of the President, concerning the then Regional Director of FMIB, Region 5. After careful consideration, we believe and so hold that, in the circumstances of this case, that act of petitioner did not constitute lawful cause for his dismissal from the service. We believe, on the contrary, that petitioner's case is covered by the rule in Gray v. De Vera. 32 Benjamin A. Gray was Secretary of the Board of Directors of the People's Homesite and Housing Corporation ("PHHC"). He sent a telegram to President Carlos P. Garcia reading as follows:
Aye suggest complete revamp PHHC Board's top members should not usurp management functions (comma) should willingly attend meetings (comma) should not grab as quotas dwelling awards despite applicants of long standing (comma) should not divide among themselves emergency positions (comma) should create positions only in case of necessity and not because they want to accommodate their useless men (comma) and should respect civil service law. 33

On the following day, the PHHC Board of Directors terminated Gray's services "on account of loss of confidence due to treachery or disloyalty to the Board." In holding that Gray had been unlawfully dismissed and in ordering his reinstatement with backwages, this Court held:

The removal of Board Secretary Gray from the primarily confidential position to which he had been permanently appointed was illegal in view of the following considerations: (1) There was no lawful cause for removal. The sending of the telegram of January 12, 1959 to President Carlos P. Garcia suggesting a complete revamp of the Board of Directors of the PHHC due to the Board's acts of management and misconduct, the most serious of which was that the Directors were grabbing as 'quotas dwelling awards despite applicants of long standing,' was an act of civic duty. The telegram was a privileged communication presumably made in good faith and capable of being substantiated by evidence. According to the testimony of Director Manuel T. Leelin the act of Board Secretary Gray in sending the telegram of January 12,1959 to the President of the Philippines was an act of treachery or disloyalty to the Board. . . . xxx xxx xxx We cannot agree, for the following reasons: First. As pointed out, the sending of the telegram to the President of the Philippines was an act of civic duty. The telegram was a privileged communication presumably sent in good faith and capable of being proved by evidence. Second. The position of secretary to the board of a government corporation was declared by the President in Executive Order No. 399 primarily confidential in nature with the obvious intent that the position be filled by an appointee of unquestioned honesty and integrity. Hence, the act of Board Secretary Gray in reporting to the President the Board's act of mismanagement and misconduct was in consonance with the honesty and integrity required for the position. Assuming that Gray owed loyalty to the Board, that loyalty was in the interest of good government and not in the personal interest of the Directors to the extent of concealing the shenanigans of the Board. . . . 34

In the case at bar, we note that petitioner sent his confidential (and presumably sealed) report to an office having overall administrative supervision and control over the FMIB (i.e., the Office of the President); the report was not, in other words, sent either to the media or to an office or agency having no administrative jurisdiction over the public official or office complained of. That report was a privileged communication and the author thereof enjoys the benefit of the presumption that he acted in good faith. The respondents have not alleged that petitioner acted with malice in fact. We do not believe that petitioner's act constituted serious misconduct but rather, on the contrary, was an act of personal and civic courage by which petitioner exhibited his loyalty to the FMIB as an institution and ultimately to the Government of the Republic of the Philippines. Considerations of fundamental public policy thus compel us to hold that petitioner was dismissed without lawful cause and must, therefore, be reinstated to the position he previously held or, If that position is no longer available, to some other position in the EIIB of equivalent rank and emoluments. In addition, petitioner is entitled to payment of his backwages (basic salary plus allowances, if any computed from the time of his return from his leave of absence, minus an amount equivalent to one-month's

backwages representing the appropriate penalty for petitioner's infraction of ordinary office rules. WHEREFORE, the Petition for Certiorari is hereby GRANTED DUE COURSE, the Comments filed by respondents are hereby CONSIDERED as their Answers to the Petition and Resolutions Nos. 88-150 and 88-787 of public respondent Civil Service Commission as well as Letter-Order No. 06-87 of public respondent EIIB Commissioner, are hereby ANNULLED and SET ASIDE. Public respondents are hereby ORDERED to reinstate forthwith petitioner to his former position, or to a position of equivalent rank and compensation, and to pay him the backwages, allowances and other benefits lawfully due him counted from May 1987, when he returned to the country from his leave of absence, until actual reinstatement, less one month's backwages. No costs. SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Gancayco, Padilla, Bidin, Sarmiento, Grio-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.

G.R. No. 91602 February 26, 1991 HONORABLE SIMPLICIO C. GRIO, SIXTO P. DEMAISIP, SANTOS B. AGUADERA, MANUEL B. TRAVIA and MANUEL M. CASUMPANG, petitioners, vs. CIVIL SERVICE COMMISSION, TEOTIMO ARANDELA, CIRILO GELVEZON, TEODULFO DATO-ON, and NELSON GEDUSPAN, respondents. Sixto P. Demaisip for petitioners. Rex C. Muzones for private respondents. Thelma A. Panganiban-Gaminde, Rogelio C. Limare and Normita M. Llamas-Villanueva for Civil Service Commission.

GANCAYCO, J.:p The main issue in this petition is whether or not the position of a provincial attorney and those of his legal subordinates are primarily confidential in nature so that the services of those holding the said items can be terminated upon loss of confidence. The facts of this case are simple. Petitioner Sixto Demaisip was the first appointed Provincial Attorney of Iloilo. He held this position from April 3, 1973 up to June 2, 1986 when he offered to resign and his resignation was accepted by the then Acting Governor. In his resignation letter, petitioner Demaisip recommended the elevation of respondent Teotimo Arandela from Senior Legal Officer to Provincial Attorney. OIC Governor Licurgo Tirador later on decided to appoint respondent Arandela as the Provincial Attorney. Respondent Cirilo Gelvezon, on the other hand, was promoted from Legal Officer II to Senior Legal Officer. Respondents Teodolfo Dato-on and Nelson Geduspan were appointed to the position of Legal Officer II. On February 2, 1988, petitioner Simplicio Grio assumed office as the newly elected governor of Iloilo. One month later, he informed respondent Arandela and all the legal officers at the Provincial Attorney's Office about his decision to terminate their services. In his letter, petitioner Grio made mention of an article pertaining to the Iloilo office of the Provincial Attorney which appeared in the Panay News and which "undermined that trust and confidence" that he reposed on them. Petitioner Demaisip was reappointed by Governor Grio as the Provincial Attorney, The latter, on the other hand, arranged the replacements of the other legal officers. Respondent Cirilo Gelvezon was replaced by

petitioner Santos Aguadera, respondent Nelson Geduspan was replaced by petitioner Manuel Casumpang and petitioner Manuel Travia took the place of respondent Teodolfo Dato-on. On March 15, 1988, petitioner Governor Grio formally terminated the services of the respondents herein on the ground of loss of trust and confidence. This action taken by the governor was appealed by respondents to the Merit Systems Protection Board of the Civil Service Commission. On March 9, 1989, the Merit Systems Board issued an Order declaring the respondents' termination illegal and ordering that they be immediately restored to their positions with back salaries and other emoluments due them. This was appealed by petitioner Grio to the Civil Service Commission. In Resolution No. 89-736 dated October 9, 1989, the Civil Service Commission affirmed the Order of the Merit Systems Protection Board, and directed that the respondents be restored to their former legal positions and be paid back salaries and other benefits. Petitioners filed a Motion for Reconsideration of the above-mentioned Decision of the Civil Service Commission. The motion was denied on December 7, 1989 in Resolution No. 89-920. Hence, this petition for review whereby petitioners seek the reversal of Resolution No. 89-736 of the Civil Service Commission and Resolution No. 89-920 which denied the Motion for Reconsideration. We shall first discuss whether the position of a provincial attorney is primarily confidential so that the holder thereof may be terminated upon loss of confidence. In Cadiente vs. Santos, 1 this Court ruled that the position of a city legal officer is undeniably one which is primarily confidential in this manner:
In resolving the merits of the instant case, We find as an undeniable fact that the position of a City Legal Officer is one which is "primarily confidential." This Court held in the case of Claudio vs. Subido, L-30865, August 31, 1971, 40 SCRA 481, that the position of a City Legal Officer is one requiring that utmost confidence on the part of the mayor be extended to said officer. The relationship existing between a lawyer and his client, whether a private individual or a public officer, is one that depends on the highest degree of trust that the latter entertains for the counsel selected. As stated in the case of Pinero vs. Hechanova, L22562, October 22, 1966, 18 SCRA 417 (citing De los Santos vs. Mallare, 87 Phil. 289), the phrase "primarily confidential" "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 on confidential matters of state. (Emphasis supplied.) The tenure of officials holding primarily confidential positions ends upon loss of confidence, because their term of office lasts only as long as confidence in them endure; and thus their cessation involves no removal (Corpus vs. Cuaderno, L-23721, March 31, 1965, 13 SCRA 591-596). When such confidence is lost and the officer holding such position is separated

from the service, such cessation entails no removal but an expiration of his term. In the case of Hernandez vs. Villegas, L-17287, June 30, 1965, 14 SCRA 548, it was held It is to be understood of course that officials and employees holding primarily confidential positions continue only for so long as confidence in them endures. The termination of their official relation can be justified on the ground of loss of confidence because in that case their cessation from office involves no removal but merely the expiration of the term of office two different causes for the termination of official relations recognized in the Law of Public Officers. In the case at bar, when the respondent City Mayor of Davao terminated the services of the petitioner, he was not removed or dismissed. There being no removal or dismissal it could not, therefore, be said that there was a violation of the constitutional provision that "no officer or employee in the civil service shall be suspended or dismissed except for cause as provided by law" (Article XII-B, Section 1 (3), 1973 Constitution). The matter of expiration of a term of an officer holding a primarily confidential position, as distinguished from a removal or dismissal, was further explained by this Court, in the case of Ingles vs. Mutuc, L-20390, November 29, 1960, 26 SCRA 171, in this wise: When an incumbent of a primarily confidential position holds office at the pleasure of the appointing power, and the pleasure turns into a displeasure, the incumbent is not removed or dismissed from office his term merely expires, in much the same way as an officer, whose right thereto ceases upon expiration of the fixed term for which he had been appointed or elected, is not and cannot be deemed removed or dismissed therefrom, upon expiration of said term. The main difference between the former the primary confidential officer and the latter is that the latter's term is fixed or definite, whereas that of the former is not pre-fixed, but indefinite, at the time of his appointment or election, and becomes fixed and determined when the appointing power expresses its decision to put an end to the services of the incumbent. When this event takes place, the latter is not removed or dismissed from office his term merely expired. The foregoing merely elaborates what this Court, speaking thru Justice J.B.L. Reyes, stressed in the case Corpus vs. Cuaderno, L-23721, March 31, 1965, 13 SCRA 591. In said case We stated that: The tenure of officials holding primarily confidential positions ends upon loss of confidence, because their term of office lasts only as long as confidence in them endures, and thus their cessation involves no removal. 2

In Besa vs. Philippine National Bank, 3 where petitioner, who was the Chief Legal Counsel with the rank of Vice President of the respondent Philippine National Bank, questioned his being transferred to the position of Consultant on Legal Matters in the Office of President, this Court, considering said position to be primarily confidential held
It cannot be denied of course that the work of the Chief Legal Counsel of respondent Bank, as of any lawyer for that matter, is impressed with a highly technical aspect. As had been pointed out, however, it does not mean that thereby a client is precluded from substituting in his stead another practitioner. That is his right; Ms decision to terminate the relationship

once made is impressed with the attribute of finality. The lawyer cannot be heard to complain; it is enough that his right to compensation earned be duly respected. In that sense, it is equally clear that where the position partakes of the attributes of being both technical and confidential, there can be no insistence of a fixed or a definite term if the latter aspect predominates. To paraphrase the language of the Chief Justice in the opinion previously cited, the incumbent of a primarily confidential position, as was the case of petitioner, should realize that at any time the appointing power may decide that his services are no longer needed. As thus correctly viewed, Corpus v. Cuaderno cannot be read as lending support to petitioner's efforts to retain his position as Chief Legal Counsel of respondent Bank, contrary to its wishes as so explicitly declared in its Resolution No. 1053.

The question now is should the ruling in Cadiente be made applicable to a provincial attorney? According to the petitioners, Cadiente must be applied because by the nature of the functions of a provincial attorney and a city legal officer, their positions are both primarily confidential. Respondents, on the other hand, maintain that since the Civil Service Commission has already classified the position of private respondent Arandela as a career position and certified the same as permanent, he is removable only for cause, and therefore Cadiente is not applicable. We agree with the petitioners and answer the question earlier propounded in the affirmative. A city legal officer appointed by a city mayor to work for and in behalf of the city has for its counterpart in the province a provincial attorney appointed by the provincial governor. In the same vein, a municipality may have a municipal attorney who is to be named by the appointing power. The positions of city legal officer and provincial attorney were created under Republic Act No. 5185 which categorized them together as positions of "trust", to wit:
Sec. 19. Creation of positions of Provincial Attorney and City Legal officer. To enable the provincial and city governments to avail themselves of the full time and trusted services of legal officers, the positions of provincial attorney and city legal officer may be created and such officials shall be appointed in such manner as is provided for under Section four of this Act. For this purpose the functions hitherto performed by the provincial and city fiscals in serving as legal adviser and legal officer for civil cases of the province and city shall be transferred to the provincial attorney and city legal officer, respectively. (Emphasis supplied.) 4

By virtue of Republic Act No. 5185, both the provincial attorney and city legal officer serve as the legal adviser and legal officer for the civil cases of the province and the city that they work for. Their services are precisely categorized by law to be "trusted services." A comparison of the functions, powers and duties of a city legal officer as provided in the Local Government Code with those of the provincial attorney of Iloilo would reveal the close similarity of the two positions. Said functions clearly reflect the highly confidential nature of the two offices and the need for a relationship based on trust between the officer and the head of the local government unit he serves. The "trusted services" to be rendered by the officer would mean such trusted services of a lawyer to his client which is of the highest degree of trust. 5

The fact that the position of respondent Arandela as provincial attorney has already been classified as one under the career service and certified as permanent by the Civil Service Commission cannot conceal or alter its highly confidential nature. As in Cadiente where the position of the city legal officer was duly attested as permanent by the Civil Service Commission before this Court declared that the same was primarily confidential, this Court holds that the position of respondent Arandela as the provincial attorney of Iloilo is also a primarily confidential position. To rule otherwise would be tantamount to classifying two positions with the same nature and functions in two incompatible categories. This being the case, and following the principle that the tenure of an official holding a primarily confidential position ends upon loss of confidence, 6 the Court finds that private respondent Arandela was not dismissed or removed from office when his services were terminated. His term merely expired. The attorney-client relationship is strictly personal because it involves mutual trust and confidence of the highest degree, irrespective of whether the client is a private person or a government functionary. 7 The personal character of the relationship prohibits its delegation in favor of another attorney without the client's consent. 8 However, the legal work involved, as distinguished from the relationship, can be delegated. 9 The practice of delegating work of a counsel to his subordinates is apparent in the Office of the Provincial Attorney wherein it can be gleaned from the power granted to such officer to exercise administrative supervision and control over the acts and decision of his subordinates. 10 It is therefore possible to distinguish positions in the civil service where lawyers act as counsel in confidential and non-confidential positions by simply looking at the proximity of the position in question in relation to that of the appointing authority. Occupants of such positions would be considered confidential employees if the predominant reason they were chosen by the appointing authority is the latter's belief that he can share a close intimate relationship with the occupant which measures freedom of discussion, without fear of embarrassment or misgivings of possible betrayal of personal trust on confidential matters of state. 11 This implies that positions in the civil service of such nature would be limited to those not separated from the position of the appointing authority by an intervening public officer, or series of public officers, in the bureaucratic hierarchy. This is an additional reason why the positions of "City Legal Officer" and "Private Secretary to the President" were considered primarily confidential by the Court. 12 On the other hand, a customs policeman serving in the Harbor Patrol, in relation to the Commissioner of Customs, and an executive assistant, stenographer, or clerk in the Office of the President, were not considered so by the Court. 13 There is no need to extend the professional relationship to the legal staff which assists the confidential employer above described. Since the positions occupied by these subordinates are remote from that of the appointing authority, the element of trust between them is no longer predominant. The importance of these subordinates to the

appointing authority now lies in the contribution of their legal skills to facilitate the work of the confidential employee. At this level of the bureaucracy, any impairment of the appointing authority's interest as a client, which may be caused through the breach of residual trust by any of these lower-ranked lawyers, can be anticipated and prevented by the confidential employee, as a reasonably competent office head, through the exercise of his power to "review, approve, reverse, or modify" their acts and decisions. 14 At this level, the client can be protected without need of imposing upon the lower-ranked lawyers the fiduciary duties inherent in the attorney-client relationship. Hence, there is now no obstacle to giving full effect to the security of tenure principle to these members of the civil service. Thus, with respect to the legal assistants or subordinates of the provincial attorney namely, Cirilo Gelvezon, Teodolfo Dato-on and Nelson Geduspan, the Cadiente and Besa rulings cannot apply. To recall, said cases specifically dealt with the positions of city legal officer of the city and chief legal counsel of the PNB. There was no reference to their legal staff or subordinates. As head of their respective departments, the city legal officer, the provincial attorney or the PNB chief legal counsel cannot be likened to their subordinates. The latter have been employed due to their technical qualifications. Their positions are highly technical in character and not confidential, so they are permanent employees, and they belong to the category of classified employees under the Civil Service Law. Thus, the items of Senior Legal Officer and Legal Officer II remain permanent as classified by the Civil Service Commission. Consequently, the holders of the said items, being permanent employees, enjoy security of tenure as guaranteed under the Constitution. This notwithstanding, petitioners contend that respondents are estopped from protesting the termination of their services because of their actions which, if taken together, would allegedly reveal that they have accepted their termination, such as: applying for clearances, not remaining in office and signing their payroll for March 15, 1988 acknowledging therein that their appointment "terminated/expired." We cannot agree with petitioners in this regard. The respondents did the abovementioned acts because their services were actually dispensed with by petitioner Governor Grio. As a consequence of their termination, they could not remain in office and as required of any government employee who is separated from the government service, they had to apply for clearances. However, this did not mean that they believed in principle that they were validly terminated. The same should not prevent them from later on questioning the validity of said termination. The facts clearly show that respondents protested their termination with the Civil Service Commission within a month from the time of their termination. The Court holds that the said protest was filed within a reasonable period of time. WHEREFORE, and in view of the foregoing, the petition is GRANTED with respect to the position of provincial attorney of Iloilo. Respondent Teotimo Arandela is hereby ordered to vacate said position upon the finality of this Decision. The Decision of the

respondent Civil Service Commission pertaining to respondents Cirilo Gelvezon, Teodolfo Dato-on and Nelson Geduspan is hereby AFFIRMED. SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Bidin, Medialdea and Regalado, JJ., concur. Gutierrez, Jr., J., concurs in the result. Grio-Aquino and Davide, Jr., JJ., took no part.

Separate Opinions
PADILLA, J., concurring and dissenting: I concur with the majority opinion in its classification of the positions of legal assistants or subordinates of the Provincial Attorney as highly technical in character, falling under the category of permanent employees, with security of tenure under the civil service system. I dissent, however, from the majority opinion in its treatment of the position of Provincial Attorney, for the following reasons: The position of Provincial Attorney was created under Sec. 19 of RA 5185 to enable the provincial government to avail of the legal advice and services of its own counsel in civil cases affecting the province. Although the power to appoint the Provincial Attorney is vested in the Governor, however, the said local public officer is an employee of the provincial government to which he owes his loyalty, and not to the elected Governor, for he is not part of the latter's personal or confidential staff. As a provincial public officer, the Provincial Attorney's suspension, removal or transfer is subject to the provisions of the civil service law, rules and regulations. In other words, he may not be removed or suspended except for cause provided by law. More specifically, he may be removed from office for incompetence, dishonesty, or other misconduct but not for the Governor's loss of confidence in him, which by its very nature, can be as broad as anything imaginable. In its resolution, the Civil Service Commission has classified the position of Provincial Attorney as a career service position and a permanent one. It is but proper that a career position be developed for the Provincial Attorney to minimize the "spoils system",

whereby everytime a new Governor is elected, he can appoint his own man by terminating the services of the one holding the position, regardless of his competence and performance, on the basis (in reality, pretext) of an alleged "loss of confidence", leaving the appointees to said position at the mercy of the Governor's whims and caprices. To clothe the Governor with an unlimited or blanket authority to dismiss the Provincial Attorney on the ground of such generality as "loss of confidence" only aggravates the problem which has for too long plagued this country and that is the undue dominance of partisan politics in the appointment and retention of government officers and/or employees. Such practice only hinders the growth of trained-career personnel in the government service resulting in the demoralization of those officers and/or employees who would prefer to stake their fate in the government service on the basis of merit. The Office of Provincial Attorney is composed of a Provincial Attorney, one (1) Senior Legal Officer, five (5) Legal Officers and its administrative staff. Private respondent Teotimo Arandela rose from the ranks, wherein he started as Legal Officer III, to Senior Legal Officer and finally to Provincial Attorney, under the terms of three (3) Governors, before Gov. Grio was elected to office. 1 To unceremoniously terminate private respondent Arandela, who has risen from the ranks and who has been in government service for many years, at the pleasure or fancy of an incumbent Governor, is, to my mind, contrary to the constitutional provision that "no officer or employee of the civil service shall be removed or suspended except for cause provided by law." Abuse of power in the termination and/or suspension of an appointee to the position of Provincial Attorney or of a similar position on the basis of "loss of confidence" which is not duly substantiated should not be allowed. The reason stated by the Governor for his alleged loss of trust and confidence in private respondent was that " . . . an article pertaining to your office which appeared yesterday in Panay News undermined that trust and confidence which should otherwise prevail." Whatever the content of said article which allegedly triggered the loss of confidence on the part of the Governor in the private respondent was not specifically stated in his letter dated 1 March 1988 dispensing with the services of the private respondent. 2 The reason given by the Governor in terminating private respondent's services does not only appear unsubstantiated but is vague and uncertain. The presence of Cadiente vs. Santos, 142 SCRA 280 (1980), upon which the majority opinion relies in support of its thesis that the Provincial Attorney may be terminated at any time by the Provincial Governor upon loss of confidence, should be the last thing to bother one in attempting to establish a wholesome doctrine in the law of public officers. ACCORDINGLY, I vote to DISMISS the Petition and to AFFIRM the questioned Civil Service Commission rulings in favor of private respondents. SARMIENTO, J., concurring & dissenting:

I concur with the first part of the ponencia holding that the position of a provincial attorney appointed by the provincial governor being akin to that of a city legal officer appointed by the city mayor, is primarily confidential and hence, the termination from office of the provincial attorney follows as a consequence of the loss of confidence upon him by the provincial governor. However, I can not agree with the second part of the decision when it refused to apply the same aforementioned ruling to the case of legal assistants or subordinate lawyers on the justification that the earlier cases of Cadiente and Besa only specifically dealt with the positions of city legal officer and PNB chief legal counsel, respectively, and that the positions of legal assistants or subordinate lawyers are highly technical in character and not confidential. While it is true that Cadiente and Besa only involved a city legal officer and the PNB chief legal counsel, the same cases do not by any means preclude the application of the said precedents to legal assistants or subordinate lawyers in appropriate cases when such issue is squarely raised as presently. Anent the claim that the positions of assistant legal officers or subordinate lawyers is highly technical and not confidential, this contention is not supported by any evidence on record or any basis in law. On the contrary, the function of an assistant or a subordinate legal officer, as can be gleaned from the Local Government Code, is to "assist the chief officer and perform such duties as the latter may assign him." I can not see how such a function can be any less confidential than that of the chief legal officer. Absent any showing of substantial distinctions between the nature of the work or function of the provincial attorney and that of the legal assistants or subordinate lawyers, it is logical to presume that both public officers handle confidential matters relating to the legal aspect of provincial administration and that their relationship with their appointing power is that of a lawyer and his client requiring utmost confidence and the highest degree of trust. Hence, both positions being primarily confidential, the termination from office of the legal assistants or subordinate lawyers must likewise follow as a consequence of the loss of confidence upon them by the provincial governor.

G.R. No. 116041 March 31, 1995 NESCITO C. HILARIO, petitioner, vs. CIVIL SERVICE COMMISSION and CHARITO L. PLANAS, respondents.

ROMERO, J.: This is a petition for certiorari with prayer for the issuance of a Temporary Restraining Order and Preliminary Injunction. Petitioner seeks to declare CSC Resolution No. 943336 dated June 23, 1994 and Resolution No. 93-4067 dated September 21, 1993 of the Civil Service Commission (CSC) null and void. On August 18, 1986, petitioner was appointed as City Attorney by the then OIC Brigido R. Simon, Jr., at that time the Officer-In-Charge of the Office of the Mayor of Quezon City under the Freedom Constitution of 1986. On July 24, 1992, the newly-elected mayor, Ismael Mathay, Jr. took over from Mayor Simon. Mayor Mathay issued a letter 1 dated July 24, 1992 to petitioner, which states:
In the absence of a tender of resignation on your part from your present position as City Attorney (City Legal Officer), please be informed that pursuant to Sec. 481, Art. II of the Local Government Code of 1991 providing that the position of City Legal Officer is coterminous with the appointing authority, you are considered resigned as of June 30, 1992.

On July 1, 1993, respondent Vice Mayor Charito L. Planas of Quezon City filed a complaint 2 with the CSC against petitioner and a certain Jose L. Pecson praying that respondents be found administratively liable for usurpation, grave misconduct, being notoriously undesirable, gross insubordination, and conduct grossly prejudicial to the best interest of the service. On September 21, 1993, the CSC issued Resolution No. 93-4067, 3 the dispositive portion of which states:
WHEREFORE, foregoing premises considered, the Commission resolves to hold in abeyance any administrative disciplinary action against Atty. Nescito C. Hilario. However, Atty. Hilario should not be allowed to continue holding the position of the Legal Officer (City Attorney) of Quezon City.

Petitioner filed a Motion for Reconsideration which was denied by the CSC in its Resolution No. 94-3336, 4 the dispositive portion of which states:

WHEREFORE, foregoing premises considered, the Commission hereby resolves to deny the motion for reconsideration of Atty. Nescito Hilario. Accordingly, CSC Resolution No. 934067 dated September 21, 1993 stands. The Commission hereby orders the Cashier of the Quezon City government to stop payment of salaries to Atty. Hilario, otherwise the former shall be personally liable for its refund. Let copies of this Resolution be furnished Mayor Ismael A. Mathay, Jr. and Vice Mayor Charito L. Planas at their known addresses.

Hence, this petition. Petitioner raises the following issues: (1) petitioner's position as city legal officer is not confidential; and (2) respondent CSC has no authority to remove or terminate the services of petitioner. Petitioner alleges that when he was appointed City Attorney, the applicable law governing his appointment was Batas Pambansa Blg. 337 and, therefore, his position should not be considered confidential. He argues that although the said position was considered confidential under Republic Act No. 5185, Batas Pambansa Blg. 337 impliedly repealed the confidential nature of the position when it expanded the duties of City Attorney. We find petitioner's contention to be devoid of merit. The relevant provision of Republic Act No. 5185 states:
Sec. 19. Creation of positions of Provincial Attorney and City Legal Officer. To enable the provincial and city governments to avail themselves of the full time and trusted services of legal officers, the positions of provincial attorney and city legal officer may be created and such officials shall be appointed in such manner as is provided for under Section four of this Act. For this purpose, the functions hitherto performed by the provincial and city fiscals in serving as legal adviser and legal officer for civil cases of the province and city shall be transferred to the provincial attorney and city legal officer, respectively. . . . (Emphasis supplied)

Batas Pambansa Blg. 337, Section 188 enumerates the qualifications, powers and duties of the city legal officer thus:
Sec. 188. Appointment, Qualifications, Compensation, Powers and Duties. (1) The city legal officer shall be appointed by the city mayor, subject to civil service law, rules and regulation. (2) No person shall be appointed city legal officer unless he is a citizen of the Philippines, of good moral character, a member of the Philippine Bar, and has acquired experience in the practice of his profession for at least five years.

(3) The city legal officer shall receive such compensation, emoluments and allowances as may be determined by law or ordinance. (4) The city legal officer shall be the chief legal adviser of the city and all offices thereof, and as such shall: (a) Represent the city in all civil cases wherein the city or any officer thereof, in his official capacity, is a party; (b) When required, draft ordinances, contracts, bonds, leases and other instruments involving any interest of the city, and inspect and pass upon any such instruments already drawn; (c) Give his opinion in writing, when requested by the mayor or the sangguniang panlungsod, upon any question relating to the city or the rights or duties of any city officer; (d) Investigate or cause to be investigated any city officer for neglect or misconduct in office, or any person, firm or corporation holding any franchise or exercising any public privilege from the city for failure to comply with any condition, or to pay any consideration mentioned in the grant of such franchise or privilege, and recommend appropriate action to the sangguniang panlungsod and the city mayor; (e) Institute and prosecute in the city's interest when directed by the mayor, a suit on any bond, lease, or other contract upon any breach or violation thereof; and (f) Exercise such other powers and perform such other duties and functions as may be prescribed by law ordinance.

An examination of the provisions of Batas Pambansa Blg. 337 reveals no intention by the legislature to remove the confidential nature of the position of city legal officer. What it does, is to merely specify the various qualifications, powers and duties of a city legal officer which were not enumerated under Republic Act No. 5185. We have consistently held in previous cases 5 that the position of City Legal Officer is a confidential one. In the recent case of Grio v. Civil Service Commission, 6 respondent was appointed provincial attorney at a time when Batas Pambansa Blg. 337 was in effect. We held that the position of City Legal Officer has its counterpart in the position of provincial attorney appointed by the provincial governor, both being positions involving the rendering of trusted services. We said:
By virtue of Republic Act No. 5185, both the provincial attorney and city legal officer serve as the legal adviser and legal officer for the civil cases of the province and the city that they work for. Their services are precisely categorized by law to be "trusted services." A comparison of the functions, powers and duties of a city legal officer as provided in the Local Government Code with those of the provincial attorney of Iloilo would reveal the close similarity of the two positions. Said functions clearly reflect the highly confidential nature of the two offices and the need for a relationship based on trust between the officer

and the head of the local government unit he serves. The "trusted services" to be rendered by the officer would mean such trusted services of a lawyer to his client which is of the highest degree of trust.

Petitioner next questions the validity of CSC Resolution Nos. 93-4067 and 94-3336 for having been issued without authority. He argues that the CSC "usurped the power, functions, and prerogatives of Mayor Mathay to exclusively discipline and decide on matters affecting the conduct and employment of Quezon City employees and officials who are under his control and supervision." 7 CSC Resolution 94-3336 states that: "It appears that Atty. Hilario was issued an appointment effective August 18, 1986 by then Mayor Simon. Hence, his term of office is deemed to have automatically expired when now Quezon City Mayor Mathay was elected in office and subsequently assumed his position." Petitioner maintains that the Mayor is the only one who may remove him from office directly and not the CSC, which only has appellate powers to review the decision of the Mayor. We find this argument untenable. Nothing in the Administrative Code precludes the CSC from deciding a disciplinary case before it. Precisely, Section 47 thereof, states:
Sec. 47. Disciplinary Jurisdiction. (1) The Commission shall decide upon appeal all administrative disciplinary cases involving the imposition of a penalty of suspension for more than thirty days, or fine in an amount exceeding thirty days' salary, demotion in rank or salary or transfer, removal or dismissal from office. A complaint may be filed directly with the Commission by a private citizen against a government official or employee in which case it may hear and decide the case or it may deputize any department or agency or official or group of officials to conduct the investigation. The results of the investigation shall be submitted to the Commission with recommendation as to the penalty to be imposed or other action to be taken.

Although respondent Planas is a public official, there is nothing under the law to prevent her from filing a complaint directly with the CSC against petitioner. Thus, when the CSC determined that petitioner was no longer entitled to hold the position of City Legal Officer, it was acting within its authority under the Administrative Code to hear and decide complaints filed before it. Petitioner further claims that he is not covered by Republic Act No. 7160, otherwise known as The Local Government Code of 1991, which explicitly states that the term of the legal officers shall be co-terminous with the office appointing authority. 8 He argues that the co-terminous provision applies only to future appointments of the legal officer but does not apply to incumbents. This provision is but a reiteration of the principle that since the position of City Legal Officer is a confidential one, it is perforce deemed to be co-terminous with that of the appointing authority.

Lastly, petitioner alleges that although Mayor Mathay in his letter dated July 24, 1992 considered him resigned as of June 30, 1992, the latter still continued to give him legal assignments, a cogent indication that Mayor Mathay still reposes trust and confidence in him; thus, there is no reason for him to vacate his office. If Mayor Mathay really intended to retain the services of petitioner as City Legal Officer, he could easily have done so by issuing a formal appointment to this effect. This he did not do. In fact, at no time during the proceedings before the Civil Service Commission did Mayor Mathay ever indicate a desire to rescind his letter dated July 24, 1992. Nor did the Mayor raise any objection when the CSC ordered petitioner to vacate the position of City Legal Officer in Quezon City. We can only draw the irresistible conclusion that Mayor Mathay's silence is eloquent proof that he does not intend petitioner to continue in the said position. WHEREFORE, the instant petition is hereby DISMISSED for lack of merit. SO ORDERED. Feliciano, Bidin, Regalado, Davide, Jr., Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan, Mendoza and Francisco, JJ., concur. Narvasa, C.J., took no part.

Separate Opinion

PADILLA, J., concurring: In Grio v. Civil Service Commission (194 SCRA 458), I stated in my dissenting opinion that the position of provincial attorney (and, by analogy, the city attorney) is not primarily confidential but a career position, and, as such, the holder of the office owes his loyalty not to the appointing authority (the provincial governor or city mayor) but to the provincial or city government for which he acts as counsel or attorney. The attorney-client relationship existed really between the local government unit concerned and the lawyer appointed to the position of provincial or city attorney. It was clear that it should be the local government unit concerned which should decide whether or not to terminate said relationship and not the governor or mayor alone. In

other words, governors and mayors could go but the provincial attorney and city attorney would remain as a career officer, subject to removal only for cause as provided by law and the civil service rules. It is unfortunate, however, that the Local Government Code of 1991 (Rep. Act No. 7160) in Sec. 481 made the position of legal officer co-terminous with that of the appointing authority. This, in my opinion, certainly adds to the demoralization within the ranks of career government employees since appointments to the position of legal officer can now be based on considerations other than performance, efficiency, dedication and public service. The "spoils system" is now given free reign at least in the position of provincial attorney and city attorney. Given the above provision of the Local Government Code, I am left with no choice but to concur with the Court's decision.

G.R. No. 104639 July 14, 1995 PROVINCE OF CAMARINES SUR through its GOVERNOR, SANGGUNIANG PANLALAWIGAN and PROVINCIAL TREASURER, petitioner, -versusCOURT OF APPEALS and TITO B. DATO, respondent.

KAPUNAN, J.: Petitioner Province of Camarines Sur assails the decision of the Court of Appeals which affirmed with modification the Regional Trial Court of Camarines Sur's decision ordering it to pay private respondent Tito Dato backwages and attorney's fees. The relevant antecedents are as follows: On January 1, 1960, private respondent Tito Dato was appointed as Private Agent by the then governor of Camarines Sur, Apolonio Maleniza. On October 12, 1972, he was promoted and was appointed Assistant Provincial warden by then Governor Felix Alfelor, Sr. Because he had no civil service eligibility for the position he was appointed to, private respondent Tito Dato could not be legally extended a permanent appointment. Hence, what was extended to him was only a temporary appointment. Thereafter, the temporary appointment was renewed annually. On January 1, 1974, Governor Alfelor approved the change in Dato's employment status from temporary to permanent upon the latter's representation that he passed the civil service examination for supervising security guards. Said change of status however, was not favorably acted upon by the Civil Service Commission (CSC) reasoning that Tito Dato did not possess the necessary civil service eligibility for the office he was appointed to. His appointment therefore remained temporary. Thereafter, no other appointment was extended to him. On March 16, 1976, private respondent Tito Dato was indefinitely suspended by Governor Alfelor after criminal charges were filed against him and a prison guard for allegedly conniving and/or consenting to evasion of sentence of some detention prisoners who escaped from confinement. On March 19, 1976, or two years after the request for change of status was made, Mr. Lope B. Rama, head of the Camarines Sur Unit of the Civil Service Commission, wrote the Governor of Camarines Sur a letter informing him that the status of private respondent Tito Dato has been changed from temporary to permanent, the latter having passed the examination for Supervising

Security Guard. The change of status was to be made retroactive to June 11, 1974, the date of release of said examination. In the meantime, the Sangguniang Panlalawigan, suppressed the appropriation for the position of Assistant Provincial Warden and deleted private respondent's name from the petitioner's plantilla. Private respondent Tito Dato was subsequently acquitted of the charges against him. Consequently, he requested the Governor for reinstatement and backwages. When his request for reinstatement and backwages was not heeded, private respondent Tito Dato filed an action for mandamus before the Regional Trial Court of Pili, Camarines Sur, Branch 31. On May 31, 1991, the trial court 1 rendered judgment, the decretal portion of which reads: WHEREFORE, judgment is hereby rendered, ordering the respondents: 1) to appropriate and pay the back salaries of the petitioner Tito B. Dato equivalent to five (5) years without qualification or deduction, at the rate of P14,532.00 per annum, with all the rights and privileges that he is entitled to as a regular government employee reaching the age of 65 in the government service, as provided by law; 2) to pay the petitioner the sum of P5,000.00 as attorney's fees; and 3) to pay the costs. SO ORDERED. 2 In due course, petitioner Province of Camarines Sur appealed the said decision to the Court of Appeals. On February 20, 1992, respondent Court of Appeals rendered its decision which dispositively reads as follows: WHEREFORE, in view of all the foregoing, judgment appealed from is hereby AFFIRMED with the following modifications: (1) respondents are ordered to pay the backwages of petitioner Tito B. Dato during the entire period of his suspension, with all the rights and privileges that he is entitled to as a regular government employee reaching the age of 65 in the government service, as provided by law; and (2) the award of the sum of P5,000 to petitioner as attorney's fees and respondents to pay the costs of suit is deleted. IT IS SO ORDERED. 3 Aggrieved by the foregoing ruling, petitioner Province of Camarines Sur interposed the present petition submitting that the respondent court erred in (a) affirming the trial court's finding that

private respondent Tito Dato was its permanent employee at the time he was suspended on March 16, 1976; and (b) modifying the said decision so as to allow private respondent to claim backwages for the entire period of his suspension. The primary question to be resolved in the instant case is whether or not private respondent Tito Dato was a permanent employee of petitioner Province of Camarines Sur at the time he was suspended on March 16, 1976. Petitioner contends that when Governor Alfelor recommended to CSC the change in the employment status of private respondent from temporary to permanent, which the CSC approved as only temporary pending validation of the results of private respondent's examination for supervising security guard, private respondent's appointment in effect remained temporary. Hence, his subsequent qualification for civil service eligibility did not ipso facto convert his temporary status to that of permanent. Private respondent, on his part, vigorously asseverates that the respondent court committed no error in confirming his appointment as permanent. We agree with the petitioner. Private respondent does not dispute the fact that at the time he was appointed Assistant Provincial Warden on January 1, 1974, he had not yet qualified in an appropriate examination for the aforementioned position. Such lack of a civil service eligibility made his appointment temporary 4 and without a fixed and definite term and is dependent entirely upon the pleasure of the appointing power. 5 The fact that private respondent obtained civil service eligibility later on is of no moment as his having passed the supervising security guard examination, did not ipso facto convert his temporary appointment into a permanent one. 6 In cases such as the one at bench, what is required is a new appointment since a permanent appointment is not a continuation of the temporary appointment these are two distinct acts of the appointing authority. 7 It is worthy to note that private respondent rests his case entirely on the letter dated March 19, 1976 communicated by Mr. Lope Rama to the Governor of Camarines Sur. The letter, which is self-explanatory, is reproduced in full below: XXXXXXXXXXXX CAMARINES SUR UNIT Naga City Re: DATO, Tito Appointment of March 19, 1976

The Honorable The Provincial Governor of Camarines Sur Naga City. Sir: This refers to the latest approved appointment of Mr. TITO DATO as Asst. Provincial Warden, this province, at P3600, effective January 1, 1974 which was approved by this Office as temporary pending validation of his Supervising Security Guard eligibility. It appears, however, that the aforementioned eligibility of Mr. Dato was released on June 11, 1974. In this connection, attention is being invited to Sec. 19, Rule III of the Rules on Personnel Action and Policies which provides that "Eligibility resulting from civil service examination . . . shall be effective on the date on the release of the results of the examination. . . ." (Emphasis supplied.) Mr. Dato's Supervising Security Guard eligibility, therefore, takes effect June 11, 1974, the date the results thereof was released. In view thereof, the aforementioned appointment of Mr. Dato is hereby approved anew as follows: "APPROVED as temporary under Sec. 24 (c), R.A. 2260, as amended, effective January 1, 1974 up to June 10, 1974 and as permanent under Sec. 24 (b), R.A. 2260, as amended, subject to the report on his physical and medical examination as to insurability, effective June 11, 1974. The Supervising Security Guard eligibility of Mr. Dato has been validated by the Civil Service Commission, Quezon City. The records of Mr. Dato in this Office have been amended accordingly. Very truly yours, By authori ty of the Commi ssion. (Initialed) LOPE B. RAMA Unit Head 8 The foregoing is a clear arrogation of power properly belonging to the appointing authority. Time and again, the Court has defined the parameters within which the power of approval of

appointments shall be exercised by the Civil Service Commission. In Luego v. Civil Service Commission, 9 the Court ruled that CSC has the power to approve or disapprove an appointment set before it. It does not have the power to make the appointment itself or to direct the appointing authority to change the employment status of an employee. The CSC can only inquire into the eligibility of the person chosen to fill a position and if it finds the person qualified it must so attest. If not, the appointment must be disapproved. The duty of the CSC is to attest appointments 10 and after that function is discharged, its participation in the appointment process ceases. 11 In the case at bench, CSC should have ended its participation in the appointment of private respondent on January 1, 1974 when it confirmed the temporary status of the latter who lacked the proper civil service eligibility. When it issued the foregoing communication on March 19, 1976, it stepped on the toes of the appointing authority, thereby encroaching on the discretion vested solely upon the latter. Moreover, the Court is not prepared to accord said letter 12 any probative value, the same being merely a purported photocopy of the alleged letter, initialed and not even signed by the proper officer of the CSC. Based on the foregoing, private respondent Tito Dato, being merely a temporary employee, is not entitled to the relief he seeks, including his claim for backwages for the entire period of his suspension. WHEREFORE, premises considered, the appealed decision is hereby REVERSED and the petition for mandamus instituted by herein private respondent Tito Dato is hereby DISMISSED. SO ORDERED. Narvasa, C.J., Feliciano, Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, Vitug, Mendoza and Francisco, JJ., concur.

G.R. No. 116183 October 6, 1995 SEC. RICARDO T. GLORIA, in his capacity as Secretary of Education, Culture & Sports and Chairman of the Board of Trustees of the Philippine State College of Aeronautics (PSCA); JULIAN J. LOLENG, JR., in his capacity as Officer-in-Charge of PSCA; and BOARD OF TRUSTEES of PSCA, petitioners, -versusHON. SALVADOR P. DE GUZMAN, JR., Presiding Judge of Branch 113, Regional Trial Court of Pasay, Metro Manila; VIRGILIO R. RAMOS, LEONY P. SENDIN, ROSARIO V. CERILLO, ANDREA A. PESTANO, ARTHUR V. RODRIGUEZA, LENI V. DIMAYUGA, JAIME ABON, RIZALDO O. VALLE, JOIE ARCEO, SHIRLEY PESTANO, SERVANDO SACUEZA, JAIME C. PONEGAL, EDGARDO MERCADO, CRISTINA BULADO, BENIGNO T. AQUINO, RODEL PESTANO, JUN JAY PARMA, NILO B. ELLO, and NELSON SACUEZA, respondents.

HERMOSISIMA, JR., J.: Intransigence of private respondents in maintaining a patently indefensible position sparked this long drawn out controversy. Knowing fully well that, as temporary employees whose terms of office, whether by contract or by the tenor of their appointments, had expired one year after their respective temporary appointments, that is, on December 31, 1992, they insist on a perceived, albeit mistaken, right to reinstatement. Before this Court is a Petition for Certiorari, filed by Hon. Ricardo T. Gloria, in his capacity as Secretary of Education, Culture and Sports (DECS) and as Chairman of the Board of Trustees of the Philippine State College of Aeronautics (PSCA); Col. Julian J. Loleng, Jr., in his capacity as Officer-in-Charge of the PSCA; and the Board of Trustees of the PSCA 1, under Rule 65 of the Revised Rules of Court, with the end in view of nullifying the Decision 2 and Order 3 of respondent Judge Salvador P. de Guzman, Jr., Presiding Judge of Branch 113, Regional Trial Court of Pasay City, dated January 31, 1994 and June 29, 1994, respectively. Questioned in effect by the petitioners is only the portion of the judgment ordering the reinstatement of private respondent Rosario V. Cerillo to the position of "Coordinator for Extension Services". Actually, the act of effecting the termination of the appointment of Rosario V. Cerillo was perpetrated by Col. Julian J. Loleng, Jr. while it was the Hon. Isidro Cario who was the DECS Secretary. The case for reinstatement which was filed before respondent Judge Salvador P. de Guzman, Jr. of the Pasay City Regional Trial Court was instituted during the incumbency of the succeeding DECS Secretary, the Hon. Armand Fabella. The judgment of the lower court, as a matter of fact, involved the Hon. Armand Fabella as defendant. In view of the resignation of

Secretary Fabella, the duty and obligation to question the decision aforesaid of Judge Salvador P. de Guzman, Jr. devolved on the incumbent Secretary, the Hon. Ricardo T. Gloria. Consequently, the dramatis personae in this case include: DECS Secretary Ricardo T. Gloria; PSCA Board of Trustees Chairman Col. Julian J. Loleng, Jr.; and the PSCA Board of Trustees created under Republic Act No. 7605, as petitioners; and RTC Executive Judge Salvador P. de Guzman, Jr., as public respondent, and the named private respondents who were the petitioners in the court below. The facts of the case are not in dispute. The question at issue is one of law: Is private respondent Rosario V. Cerillo entitled to reinstatement to the position of "Coordinator for Extension Services"? Private respondents were employees of the Philippine Air Force College of Aeronautics (PAFCA) which was created by virtue of Presidential Decree No. 1078 on January 26, 1977. Under the said decree, the Board of Trustees is vested with authority, among others, to appoint, as it did appoint, officials and employees of the college, except the members of the Board of Trustees themselves and the President of the college. In line with this authority, the PAFCA Board of Trustees issued Resolution No. 91-026 on April 1, 1991, which declared that "All faculty/administrative employees are also subject to the required civil service eligibilities", in accordance with pertinent civil service law, rules and regulations. Thus, herein private respondents were issued only temporary appointments because at the time of their appointment, they lacked appropriate civil service eligibilities or otherwise failed to meet the necessary qualification standards for their respective positions. Private respondent Rosario V. Cerillo, specifically, was issued a one-year temporary appointment to the position of Board Secretary II of PAFCA (now PSCA), that is, from January 1, 1992 to December 31, 1992. This appointment went along the line enunciated by the Civil Service Commission in a letter, dated March 25, 1992. 4 The letter emphasized that temporary appointments were good and renewable only up to 1992. On March 24, 1992, private respondent Rosario V. Cerillo was relieved as Board Secretary of the PAFCA in accordance with Board Resolution No. 92-017 by reason of loss of confidence. Subsequently, however, she was designated as "Coordinator for Extension Services". On June 3, 1992, Republic Act No. 7605 was enacted into law. It converted PAFCA into a state college to be known as the Philippine State College of Aeronautics (PSCA). The Board of Trustees likewise was the governing body of the PSCA. The power to make appointments was retained by the Board. Petitioner Col. Julian J. Loleng, Jr. remained as Officer-in-Charge by virtue of a designation made anew by then DECS Secretary Isidro Cario on June 8, 1992. Only on December 7, 1992 did Col. Loleng inform private respondents that they shall be deemed separated from the service upon the expiration of their temporary appointments. Had private respondent Rosario V. Cerillo not been summarily dismissed as Board Secretary on March 24, 1992, her temporary appointment as such was supposed to have lasted until December 31, 1992.

On June 25, 1993, barely five months after the lapse of the terms of their temporary appointments as determined by the PSCA administration, the herein private respondents filed before the Regional Trial Court of Pasay City, presided over by respondent Judge Salvador P. de Guzman, Jr., a "Petition for Mandamus and Reinstatement, with Back Wages and Damages", docketed as Civil Case No. 10049. The complaint in effect prayed that then DECS Secretary Armand Fabella complete the filling up of positions for Board of Trustees and order the Board of Trustees to reinstate the respondents in the case at bench to their respective positions. In their Answer, 5 the herein petitioners opposed the petition upon the ground that mandamus will not lie to compel reinstatement because the reappointment prayed for is discretionary on the part of the appointing power. Besides, it was the claim of Secretary Fabella that a writ of mandamus should be unavailing to private respondents because of their failure to exhaust administrative remedies. We find the petition to be impressed with merit. I The judgment of respondent Judge Salvador P. de Guzman, Jr. which orders the reinstatement of Ms. Rosario V. Cerillo to the position of "Coordinator for Extension Services" is patently improper because it finds no support as to facts and the law. Respondent Cerillo, although temporarily extended an appointment as Board Secretary II, was dismissed therefrom because of loss of confidence. This dismissal was neither contested nor appealed from by Ms. Cerillo. There is no question, therefore, that her dismissal as Board Secretary II could not have been the subject of the petition for mandamus and reinstatement filed before respondent Judge. The fact is that private respondent's assignment as "Coordinator for Extension Services" was a mere designation. Not being a permanent appointment, the designation to the position cannot be the subject of a case for reinstatement. Furthermore, even granting that Ms. Cerillo could be validly reinstated as "Coordinator for Extension Services", her reinstatement thereto would not be possible because the position is not provided for in the PSCA plantilla. The PSCA could not have made any valid appointment for this inexistent position. This could very well be the reason why she was merely designated as Coordinator. As a mere designee, she could not have acquired any right to the position even if the position existed. At any rate, a mere "designation" does not confer upon the designee security of tenure in the position or office which he occupies in an acting capacity only 6. II Should the object of private respondent Cerillo in prosecuting the case in the court below be her reinstatement to the position of Board Secretary II, the reinstatement prayed for appears to be impermissible. In the first place, Ms. Cerillo had already been dismissed from this position for loss of confidence. She did not contest this dismissal possibly because the position of Board Secretary II is primarily confidential

and the Board of Trustees, when finding her, the incumbent to the position, to be wanting in faithfulness and integrity dismissed her for that reason alone. She accepted the dismissal without any ripple and when designated as Coordinator for Extension Services, she indicated acceptance by performing the acts called for by the designation. The quarrel between the private respondents, on the one hand, and the PSCA administration, on the other, came about in this manner: The Civil Service Commission, mandating a policy, wrote petitioner Col. Julian J. Loleng, Jr. a letter 7 mandating that temporary appointments of officers/employees of the PSCA were to last only up to December 31, 1992. For a better perspective, We quote a pertinent portion of the letter: xxx xxx xxx Please note that temporary appointments last only for a maximum of one (1) year and all personnel appointed in a temporary capacity can be replaced any time by a civil service eligible. Since you have just been recently covered by the Civil Service Law and rules, this Field Office approved all your temporary appointments subject to yearly renewal up to 1992 only. Subsequent appointments should strictly conform with civil service policies. You may, therefore, advise all your temporary personnel to take civil service examinations in order to be eligible for appointment. This letter was implemented by Col. Julian J. Loleng, Jr. Objecting thereto, private respondents pointed out to the PSCA administration that, in Resolution No. 91-026, dated April 1, 1991, the Board of Trustees declared that all faculty/administrative employees of the college, while required to acquire civil service eligibilities under pertinent civil service law, rules and regulations, must exert effort to acquire civil service eligibilities within a period of three years from their temporary appointments. This, the private respondents believe should be taken to mean that, should they acquire civil service eligibilities within that period of three years, they cannot be terminated from the service. The fact that private respondent Cerillo passed the requisite Civil Service Examination after the termination of her temporary appointment is no reason to compel petitioners to reappoint her. Acquisition of civil service eligibility is not the sole factor for reappointment. Still to be considered by the appointing authority are: performance, degree of education, work experience, training, seniority, and, more importantly, as in this case, whether or not the applicant enjoys the confidence and trust of the appointing power. As We said earlier, the position of Board Secretary II, by its nature, is primarily confidential, requiring as it does "not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which ensures freedom from misgivings of betrayals of personal trust or confidential matters of state." 8 In other words, the choice of an appointee from among those who possessed the required qualifications is a political and administrative decision calling for considerations of wisdom, convenience, utility and the interests of the service which can best be made by the Head of the office concerned. 9

It cannot be overemphasized that the PSCA Board Resolution No. 91-026 must yield to the Civil Service Commission policies on the issuance of temporary appointments. When the Civil Service Commission directed that temporary appointments were to be effective only up to 1992, it did so in pursuance of the general purpose of the civil service law, as stated under Section 2 of Republic Act No. 2260, as amended, which is "to ensure and promote the constitutional mandate regarding appointments only according to merit and fitness and to provide within the public service a progressive system of personal administration to ensure the maintenance of an honest and efficient progressive and courteous civil service in the Philippines. 10 For that matter, it is vested with the function, among others, to promulgate policies, standards and guidelines for the civil service and adopt plans and programs to promote economical, efficient and effective personnel administration in the government. 11 We hold that reappointment to the position of Board Secretary II is an act which is discretionary on the part of the appointing power. Consequently, it cannot be the subject of an application for a writ of mandamus. Reinstatement is technically issuance of a new appointment which is essentially discretionary, to be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the qualifications required by law. 12 Such exercise of the discretionary power of appointment cannot be controlled, not even by the Court as long as it is exercised properly by the appointing authority. 13 It is Our holding that the questioned order of reinstatement amounts to an undue interference by the Court in the exercise of the discretionary power of appointment vested in the PSCA Board of Trustees. Surprisingly, the Court a quo, while upholding the right of private respondent Cerillo to a reappointment, adhered to this pontification by stating that: The appointment of the petitioners to their former positions is not a matter of right; rather, it is a matter of discretion on the part of the respondents. Mandamus cannot be availed of to compel anyone to exercise his discretion absent any showing of grave abuse of discretion. III The termination of the services of private respondents was proper and legal, it being the consequence of the Board of Trustees' power to appoint. The view of respondent Judge, however, is that there was no termination ordered. Either the employees' contracts lapsed or their temporary appointments were abrogated by circulars from the Civil Service Commission. This, as a necessary consequence of the transition from the Philippine Air Force College of Aeronautics (PAFCA) to the Philippine State College of Aeronautics (PSCA). We agree with respondent Judge's disquisition on this point:

To the question was the termination of the services of the petitioners legal or not?, the only answer is there was not termination to speak of. Termination presupposes an overt act committed by a superior officer. There was none whatsoever in the case at bar. At most, Col. Julian (Loleng) gave notice to the petitioners of the expiration of their respective contracts, Petitioners appointment or employment simply expired either by its very own terms, or because it may not exceed one year, but most importantly because the PAFCA was dissolved and replaced by the PSCA. The notice given by Col. Loleng to the petitioners seem to have been misunderstood by them as an act of dismissal which as they correctly state, belongs to the Board of Trustees alone. IV Considering Our finding that there is merit to the petition, the issue as to whether attorney's fees and costs of litigation should be awarded to private respondent Rosario V. Cerillo as adjudged in the questioned decision of respondent Judge has become moot and academic. At any rate, the Court holds that the said award could not have been imposed because, while it was directly ordered in the dispositive portion of the decision, it was neither discussed nor justified in the body of the questioned decision. Clear on this point is Our decision in Policarpio vs. Court of Appeals, 194 SCRA 129, 742, [1991]: "The Court had occasion to state that the reason for the award of attorney's fees must be stated in the text of the decision, otherwise, if it is stated only in the dispositive portion of the decision, the same shall be disallowed." This ruling We reiterated in the case of Koa vs. Court of Appeals, 219 SCRA 541, 549, [1991], citing Central Azucarcra de Bais vs. Court of Appeals, 188 SCRA 328, 340, where it was stated that "The award of attorney's fees must be disallowed for want of factual and legal premise in the text of the decision rendered by the court of origin and the appellate court as well." WHEREFORE, the petition is GRANTED. The challenged decision, dated January 31, 1994, insofar as it ordered the reinstatement of Ms. Rosario V. Cerillo and the payment to the latter of back wages and attorney's fees, and the Order, dated June 29, 1994, of respondent Judge Salvador P. de Guzman, Jr. are hereby declared null and void and ordered set aside. The temporary restraining order/preliminary injunction heretofore issued is hereby made permanent. SO ORDERED. Feliciano, Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Puno, Vitug, Kapunan, Mendoza and Francisco, JJ., concur. Narvasa, C.J. and Melo, JJ., are on leave.