19. MA. CHONA M. DIMAYUGA vs. MARIANO E.

BENEDICTO II
G.R. No. 144153, January 16, 2002
FACTS: On October 26, 1992, then Secretary of Public Works and Highways
Jose P. Dimayuga issued a permanent appointment in favor of petitioner
Chona M. Dimayuga as Executive Director II of the Toll Regulatory Board
(Board, for brevity). As its highest-ranking working official, the petitioner
exercised supervision and control over the boards three divisions. She also
oversaw the Boards Build-Operate-Transfer (BOT) projects. At the time, the
position of Executive Director II was not deemed part of the Career Executive
Service (CES), that is, until June 4, 1993, when it was included therein.
On May 31, 1994, the Civil Service Commission issued Memorandum Circular
No. 21, providing among others that incumbents of positions which are
declared to be CES positions are for the first time pursuant to this resolution
who hold permanent appointment thereto shall remain under permanent
status in their respective positions. However, upon promotion or transfer to
other CES positions, these incumbents shall be under temporary status in
said positions until they qualify.
Petitioner alleges that she had been a subject of several administrative and
criminal complaints which were all designed to coerce her removal. As a
consequence of such complaints, DPWH Secretary Vigilar issued a first 90day suspension order which was followed by another 90-day suspension
issued this time by Executive Secretary Alexander Aguirre.
After the
expiration of the last suspension order, petitioner was directed by DPWH
Secretary Vigilar to the Legal Service Department to assist in the
implementation of P.D. 1096 (National Building Code of the Philippines). As a
gesture of protest to such order of the Secretary, the petitioner filed a leave
of absence rather than assume a position which she considered as a
demotion.
On September 28, 1998, while she was on leave, petitioner received a letter
from Secretary Vigilar informing her that President Estrada had appointed
Mariano Benedicto II as the new Executive Director II of the Board. As a
consequence thereof, petitioner filed a petition for quo warranto before the
Court of Appeals which the latter tribunal dismissed.
ISSUE: Whether or not the subsequent inclusion of the petitioners position
under the CES would automatically qualify the latter for the said position
even in the absence of the required eligibility.
HELD: NO. The mere fact that a position belongs to a Career Service does
not automatically confer security of tenure o 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 depend 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. The appointment extended to him cannot be so
regarded as permanent even if it may be so designated.
In the doctrinal case of Cuevas vs. Bacal, the Court emphasized two (2)
salient points, to wit: First, in order to qualify an appointment as permanent,
the appointee must possess the rank appropriate to the position. Failure in
this respect will render the appointment merely temporary. Second, security
of tenure in the Career Executive Service (CES) is thus acquired with respect
to rank and not to position. The guaranty of security of tenure to the
members of the CES does not extend to the particular positions to which
they may be appointeda concept which is applicable only to first and
second level employees in the civil servicebut to the rank to which they are
appointed by the President.
The Court reiterates the above points if only to serve as a contradistinction
to petitioners arguments. If a career executive officers security of tenure
pertains only to his rank and not to his position, with greater reason then
that petitioner herein, who is not even a CESO eligible, has no security of
tenure with regard to the position of Executive Director II of the Toll
Regulatory Board which was earlier classified on June 4, 1993 as part of the
CES or prior to the issuance of the CSC Memo. Circ. No. 21 dated May 31,
1994.
Lastly, and as correctly pointed out by the Solicitor-General, non-eligibles
holding permanent appointments to CES positions were never meant to
remain immobile in their status. Otherwise, their lack of eligibility would be a
premium vesting them with permanency in the CES positions, a privilege
even their eligible counterpart do not enjoy.