G.R. No.

93023             March 13, 1991

TOMAS D. ACHACOSO, petitioner
vs.
CATALINO MACARAIG and RUBEN D. TORRES, in their capacities as Executive Secretary
and Secretary of the Department of Labor and Employment (DOLE), respectively; and JOSE
N. SARMIENTO, respondents.

Padilla, Jimenez, Kintanar and Asuncion Law Office for petitioner.

CRUZ, J.:

The petitioner invokes security of tenure against his claimed removal without legal cause. The
respondents assert he is not entitled to the guaranty because he is not a career official. These are
the legal issues. The facts are as follows:

Tomas D. Achacoso was appointed Administrator of the Philippine Overseas Employment

Administration on October 16, 1987, and assumed office on October 27, 1987. On January 2,
1990, in compliance with a request addressed by the President of the Philippines to "all
Department Heads, Undersecretaries, Assistant Secretaries, Bureau Heads," and other
government officials, he filed a courtesy resignation. This was accepted by the President on April
3, 1990, "with deep regrets." On April 10, 1990, the Secretary of Labor requested him to turn over
his office to the Deputy Administrator as officer in-charge. In a letter dated April 19, 1990, he
protested his replacement and declared he was not surrendering his office because his resignation
was not voluntary but filed only in obedience to the President's directive. On the same date,
respondent Jose N. Sarmiento was appointed Administrator of the POEA, vice the petitioner.
Achacoso was informed thereof the following day and was again asked to vacate his office. He
filed a motion for reconsideration on April 23, 1990, but this was denied on April 30, 1990. He then
came to this Court for relief.

In this petition for prohibition and mandamus, this Court is asked to annul the appointment of
Sarmiento and to prohibit the respondents from preventing the petitioner from discharging his
duties as Administrator of the POEA.

Achacoso contends that he is a member of the Career Service of the Civil Service and so enjoys
security of tenure, which is one of the characteristics of the Career Service as distinguished from
the Non-Career Service.1 Claiming to have the rank of undersecretary, he says he comes under
Article IV, Section 5 of P.D. 807, otherwise known as the Civil Service Decree, which includes in
the Career Service:

3. Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary,

Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director,
Chief of Department Service and other officers of equivalent rank as may be identified by
the Career Executive Service Board, all of whom are appointed by the President.

His argument is that in view of the security of tenure enjoyed by the above-named officials, it was
"beyond the prerogatives of the President" to require them to submit courtesy resignations. Such
courtesy resignations, even if filed, should be disregarded for having been submitted "under
duress," as otherwise the President would have the power to remove career officials at pleasure,
even for capricious reasons. In support of this contention, he invokes Ortiz vs. Commission on
Elections,2 where we observed that "to constitute a complete and operative act of resignation, the
officer or employee must show a clear intention to relinquish" and that "a courtesy resignation
cannot properly be interpreted as a resignation in the legal sense for it is not necessarily a
reflection of a public official's intention to surrender his position." He concludes that as his removal
was illegal, there was no vacancy in the disputed office to which respondent Sarmiento could have
been validly appointed.

In his Comment, the Solicitor General concedes that the office of POEA Administrator is a career
executive service position but submits that the petitioner himself is not a career executive service
official entitled to security of tenure. He offers the following certification from the Civil Service
Commission to show that the petitioner did not possess the necessary qualifications when he was
appointed Administrator of the POEA in 1987:

CERTIFICATION

This is to certify that per records of the Career Executive Service Board (CESB), Mr. Tomas D.
Achacoso III has not participated in a Career Executive Service Development Program (CESDP)
and is not a CES eligible. This is to certify further that Mr. Achacoso was not appointed to a rank in
the CES and is not therefore a member of the Career Executive Service.

x x x           x x x          x x x

(Sgd.) ELMOR D. JURIDICO

Executive Director

Reference is also made to the following rules embodied in Part III, Article IV, Integrated
Reorganization Plan as approved by P.D. 1 and amended by P.D. 336 and P.D. 337, on the
career executive service:

c. Appointment. Appointment to appropriate classes in the Career Service shall be made by

the President from a list of career executive eligibles recommended by the Board. Such
appointments shall be made on the basis of rank; provided that appointments to the higher
ranks which qualify the incumbents to assignments as undersecretary and heads of the
bureaus and offices and equivalent positions shall be with the confirmation of the
Commission on Appointments. The President may, however, in exceptional cases, appoint
any person who is not a Career Executive Service eligible, provided that such appointee
shall subsequently take the required Career Executive Service examination and that he
shall not be promoted to a higher class until he qualifies in such examination. (Emphasis
supplied.)

The respondents contend that as the petitioner was not a career executive service eligible at the
time of his appointment, he came under the exception to the above rule and so was subject to the
provision that he "shall subsequently take the required Career Executive Service examination and
that he shall not be promoted to a higher rank until he qualifies in such examination." Not having
taken that examination, he could not claim that his appointment was permanent and guaranteed
him security of tenure in his position.

It is settled that a permanent appointment can be issued only "to a person who meets all the
requirements for the position to which he is being appointed, including the appropriate eligibility
prescribed." Achacoso did not. At best, therefore, his appointment could be regarded only as
temporary. And being so, it could be withdrawn at will by the appointing authority and "at a
moment's notice," conformably to established jurisprudence.

The Court, having considered these submissions and the additional arguments of the parties in the
petitioner's Reply and the Solicitor-General's Rejoinder, must find for the respondents.

The mere fact that a position belongs to the Career Service does not automatically confer
security of tenure on its occupant even if he does not possess the required qualifications .
Such right will have to depend on the nature of his appointment, which in turn depends on his
eligibility or lack of it. A person who does not have the requisite qualifications for the position
cannot be appointed to it in the first place or, only as an exception to the rule, may be appointed to
it merely in an acting capacity in the absence of appropriate eligibles.3

The appointment extended to him cannot be regarded as permanent even if it may be so

designated.

The purpose of an acting or temporary appointment is to prevent a hiatus in the discharge of

official functions by authorizing a person to discharge the same pending the selection of a
permanent or another appointee.4 The person named in an acting capacity accepts the position
under the condition that he shall surrender the office once he is called upon to do so by the
appointing authority.

In these circumstances, the acting appointee is separated by a method of terminating official

relations known in the law of public officers as expiration of the term. His term is understood at the
outset as without any fixity and enduring at the pleasure of the appointing authority. When required
to relinquish his office, he cannot complain that he is being removed in violation of his security of
tenure because removal imports the separation of the incumbent before the expiration of his
term.5 This is allowed by the Constitution only when it is for cause as provided by law. The acting
appointee is separated precisely because his term has expired. Expiration of the term is not
covered by the constitutional provision on security of tenure.

There is a long line of cases affirming the rule that:

. . . One who holds a temporary appointment has no fixed tenure of office; his employment
can be terminated at the pleasure of the appointing power, there being no need the show
that the termination is for cause.6

The petitioner contends that his appointment was really intended to be permanent because
temporary appointments are not supposed to exceed twelve months and he was allowed to serve
in his position for more than three years. This is unacceptable. Even if that intention were
assumed, it would not by itself alone make his appointment permanent. Such an appointment did
not confer on the petitioner the appropriate civil service eligibility he did not possess at the time he
was appointed, nor did it vest him with the right to security of tenure that is available only to
permanent appointees.

The case of Luego vs. Civil Service Commission7 is not applicable because the facts of that case
are different. The petitioner in Luego was qualified and was extended a permanent appointment
that could not be withdrawn on the ground that it was merely temporary. In the case at bar, the
petitioner was not eligible and therefore could be appointed at best only in a temporary capacity.
The other cases he cites, viz. Pamantasan ng Lungsod ng Maynila vs. Intermediate Appellate
Court,8 Palma-Fernandez vs. De la Paz,9 and Dario vs. Mison,10 are also not pertinent because
they also involved permanent appointees who could not be removed because of their security of
tenure.

It should be obvious from all the above observations that the petitioner could have been validly
replaced even if he had not filed his courtesy resignation. We therefore do not have to rule on its
legality. Suffice it to say that it could have been a graceful way of withdrawing him from his office
with all the formal amenities and no asperity or discord if only he had not chosen to contest it. But
it was his right to do so, of course, although his challenge has not succeeded.

WHEREFORE, the petition is DISMISSED, with costs against the petitioner. It is so ordered.
Fernan, C.J., Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Bidin, Sarmiento,
Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.
Narvasa and Padilla, JJ., took no part

CASE DIGEST:

[G.R. No. 93023. March 13, 1991.]

FACTS:

Tomas D. Achacoso was appointed Administrator of the Philippine Overseas Employment

Administration

In compliance with a request addressed by the President of the Philippines to “all Department
Heads, Undersecretaries, Assistant Secretaries, Bureau Heads,” and other government officials,
he filed a courtesy resignation.

This was accepted by the President, “with deep regrets.”

The Secretary of Labor requested him to turn over his office to the Deputy Administrator as officer-
in-charge.

he protested his replacement and declared he was not surrendering his office because his
resignation was not voluntary but filed only in obedience to the President’s directive.

On the same date, respondent Jose N. Sarmiento was appointed Administrator of the POEA,
vice the petitioner.

Achacoso was informed thereof the following day and was again asked to vacate his office.

He filed a motion for reconsideration but this was denied. He then came to this Court for relief.

The petitioner invokes security of tenure against his claimed removal without legal cause.
Achacoso contends that he is a member of the Career Service of the Civil Service and so enjoys
security of tenure, which is one of the characteristics of the Career Service as distinguished
from the Non-Career Service. 1 Claiming to have the rank of undersecretary, he says he comes
under Article IV, Section 5 of P.D. 807, otherwise known as the Civil Service Decree, which
includes in the Career Service:

Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary,

Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief
of Department Service and other officers of equivalent rank as may be identified by the Career
Executive Service Board, all of whom are appointed by the President.

His argument is that in view of the security of tenure enjoyed by the above-named officials,
it was “beyond the prerogatives of the President” to require them to submit courtesy
resignations. Such courtesy resignations, even if filed, should be disregarded for having been
submitted “under duress,” as otherwise the President would have the power to remove career
officials at pleasure, even for capricious reasons

The respondents assert he is not entitled to the guaranty because he is not a career official (the
petitioner did not possess the necessary qualifications when he was appointed Administrator of
the POEA in 1987).

ISSUE:
WON Achacoso is protected by the security of tenure clause

HELD:

NO. The Court finds for the respondent.

CONSTITUTIONAL LAW; BILL OF RIGHTS; SECURITY OF TENURE; PERMANENT

APPOINTMENT ISSUED ONLY TO PERSONS QUALIFIED. — A permanent appointment can be
issued only “to a person who meets all the requirements for the position to which he is being
appointed, including the appropriate eligibility prescribed.”

The mere fact that a position belongs to the Career Service does not automatically confer security
of tenure on its occupant even if he does not possess the required qualifications.

PERSONS APPOINTED WITHOUT THE REQUISITE QUALIFICATION DEEMED IN ACTING

CAPACITY. — The mere fact that a position belongs to the Career Service does not
automatically confer security of tenure on its occupant even if he does not possess the
required qualifications. Such right will have to depend on the nature of his appointment, which in
turn depends on his eligibility or lack of it. A person who does not have the requisite qualifications
for the position cannot be appointed to it in the first place or, only as an exception to the rule, may
be appointed to it merely in an acting capacity in the absence of appropriate eligibles.

TEMPORARY APPOINTMENT; PURPOSE. — The purpose of an acting or temporary

appointment is to prevent a hiatus in the discharge of official functions by authorizing a person to
discharge the same pending the selection of a permanent or another appointee.

4.ID.; ID.; ID.; ID.; CONDITION IMPOSED ON APPOINTEE. — The person named in an acting
capacity accepts the position under the condition that he shall surrender the office once he is
called upon to do so by the appointing authority.

EXPIRATION OF TERM; METHOD OF TERMINATING TEMPORARY EMPLOYMENT. — In

these circumstances, the acting appointee is separated by a method of terminating official
relations known in the law of public officers as expiration of the term. His term is understood at the
outset as without any fixity and enduring at the pleasure of the appointing authority. When
required to relinquish his office, he cannot complain that he is being removed in violation
of his security of tenure because removal imports the separation of the incumbent before
the expiration of his term. This is allowed by the Constitution only when it is for cause as
provided by law. The acting appointee is separated precisely because his term has expired.
Expiration of the term is not covered by the constitutional provision on security of tenure.

LUEGO CASE (143 SCRA 327) NOT APPLICABLE TO CASE AT BAR. — The case of Luego v.
Civil Service Commission is not applicable because the facts of that case are different. The
petitioner in Luego was qualified and was extended a permanent appointment that could
not be withdrawn on the ground that it was merely temporary. In the case at bar, the
petitioner was not eligible and therefore could be appointed at best only in a temporary capacity.
The other cases he cites, viz. Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate
Court, Palma-Fernandez v. De la Paz, and Dario v. Mison, are also not pertinent because they
also involved permanent appointees who could not be removed because of their security of
tenure.