DIGEST/ LINALYN BATION/ SAMUEL B. ONG vs OFFICE OF THE PRESIDENT, ET.AL.

 

G.R. No. 184219               January 30, 2012

SAMUEL B. ONG, Petitioner,
vs.
OFFICE OF THE PRESIDENT, ET AL., Respondents.

 

FACTS:

          Petitioner Ong held the position of NBI Director I from July 14, 1998 to February 23, 1999 and NBI Director II from February 24, 1998 to September 5, 2001. On September 6, 2001, petitioner was appointed Director III by the President.

          However, on June 3, 2004, the petitioner received from respondent Reynaldo Wycoco Memorandum Circular No. 02-S.2004 informing him that his appointment, being co-terminus with the appointing authority's tenure, would end effectively at midnight on June 30, 2004 and, unless a new appointment would be issued in his favor by the President consistent with her new tenure effective July 1, 2004, he would be occupying his position in a de facto/hold- over status until his replacement would be appointed.

          On December 01, 2004, the President appointed respondent Victor A. Bessat as NBI Director III as replacement of the petitioner. Consequently, respondent Wycoco notified the petitioner that, effective on December 17, 2004, the latter should cease and desist from performing his functions as NBI Director III in view of the presidential appointment of respondent Bessat as petitioner's replacement. 

          Consequently, Ong filed before the CA a petition for quo warranto. He sought for the declaration as null and void of (a) his removal from the position of NBI Director III; and (b) his replacement by respondent Victor Bessat (Bessat). Ong likewise prayed for reinstatement and backwages.

          The CA denied Ong's petition on the ground that a petition for quo warranto is a proceeding to determine the right of a person to the use or exercise of a franchise or office and to oust the holder from its enjoyment, if his claim is not well-founded, or if he has forfeited his right to enjoy the privilege. Where the action is filed by a private person, in his own name, he must prove that he is entitled to the controverted position, otherwise, respondent has a right to the undisturbed possession of the office.

 

ISSUE(s):

(1)  Whether or not the CA erred in sustaining the validity of Ong's removal

 

(2)  Whether or not the CA erred in holding that since the petitioner held a co-terminous appointment, he is terminable at the pleasure of the appointing power

 

RULING:

          (1) MC No. 02-S.2004 did not remove Ong from the position of Director III. Assuming arguendo that it did, the defect was cured when the President, who was the appointing authority herself, in whose hands were lodged the power to remove, appointed Bessat, effectively revoking Ong's appointment.

          MC No. 02-S.2004 did not in effect remove Ong from his post. It merely informed Ong that records of the NBI showed that his co-terminous appointment had lapsed into a de facto/hold-over status. It likewise apprised him of the consequences of the said status.

          Be that as it may, if we were to assume for argument's sake that Wycoco removed Ong from his position as Director III by virtue of the former's issuance of MC No. 02-S.2004, still, the defect was cured when the President herself issued Bessat's appointment on December 1, 2004. The appointing authority, who in this case was the President, had effectively revoked Ong's appointment.

 

          (2) Ong lacked the CES eligibility required for the position of Director III and his appointment was "co-terminus with the appointing authority." His appointment being both temporary and co-terminous in nature, it can be revoked by the President even without cause and at a short notice.

          It is established that no officer or employee in the Civil Service shall be removed or suspended except for cause provided by law. However, this admits of exceptions for it is likewise settled that the right to security of tenure is not available to those employees whose appointments are contractual and co-terminous in nature.

          In the case at bar, Ong's appointment as Director III falls under the classifications provided in (a) Section 14(2) of the Omnibus Rules Implementing Book V of the Administrative Code, to wit, that which is "co-existent with the tenure of the appointing authority or at his pleasure"; and (b) Sections 13(b) and 14(2) of Rule V, CSC Resolution No. 91-1631, or that which is both a temporary and a co-terminous appointment. The appointment is temporary as Ong did not have the required CES eligibility.