LITERATURA CITADA

Sec. 20. Notwithstanding the initial approval of an appointment, the same may be recalled on any of the following grounds:

(e) Non-compliance with the procedures/criteria provided in the agency‟s Merit Promotion Plan;

(f) Failure to pass through the agency‟s Selection/Promotion Board;

(g) Violation of the existing collective agreement between management and employees relative to promotion; or

(h) Violation of other existing civil service law, rules and regulations.

Accordingly, the appointments of the private respondents may only be recalled on the above-cited grounds. And yet, the only reason advanced by the petitioner to justify the recall was that these were “midnight appointments.” The CSC correctly ruled, however, that the constitutional prohibition on so- called “midnight appointments,” specifically those made within two (2) months immediately prior to the next presidential elections, applies only to the President or Acting President. (De Rama v. Court of Appeals, 353 SCRA 94, Feb. 28, 2001, En Banc [Ynares-Santiago])

297. When may unconsented transfers be considered anathema to security of tenure?

Held: As held in Sta. Maria v. Lopez (31 SCRA 637, 653 citing Ibanez v. Commission on Elections, L- 26558, April 27, 1967, 19 SCRA 1002, 1012 and Section 12 of the Tax Code).

"x x x the rule that outlaws unconsented transfers as anathema to security of tenure applies only to an officer who is appointed - not merely assigned - to a particular station. Such a rule does not pr[o]scribe a transfer carried out under a specific statute that empowers the head of an agency to periodically reassign the employees and officers in order to improve the service of the agency. x x x"

The guarantee of security of tenure under the Constitution is not a guarantee of perpetual employment. It only means that an employee cannot be dismissed (or transferred) from the service for causes other than those provided by law and after due process is accorded the employee. What it seeks to prevent is capricious exercise of the power to dismiss. But where it is the law-making authority itself which furnishes the ground for the transfer of a class of employees, no such capriciousness can be raised for so long as the remedy proposed to cure a perceived evil is germane to the purposes of the law. (Agripino A. De Guzman, Jr., et al. v. COMELEC, G.R. No. 129118, July 19, 2000, En Banc [Purisima]) 298. Discuss Abolition of Office?

Held: The creation and abolition of public offices is primarily a legislative function. It is acknowledged that Congress may abolish any office it creates without impairing the officer's right to continue in the position held and that such power may be exercised for various reasons, such as the lack of funds or in the interest of economy. However, in order for the abolition to be valid, it must be made in good faith, not for political or personal reasons, or in order to circumvent the constitutional security of tenure of civil service employees.

An abolition of office connotes an intention to do away with such office wholly and permanently, as the word "abolished" denotes. Where one office is abolished and replaced with another office vested with similar functions, the abolition is a legal nullity. Thus, in U.P. Board of Regents v. Rasul (200 SCRA 685 [1991]) we said:

It is true that a valid and bona fide abolition of an office denies to the incumbent the right to security of tenure (De la Llana v. Alba, 112 SCRA 294 [1982]). However, in this case, the renaming and restructuring of the PGH and its component units cannot give rise to a valid and bona fide abolition of the position of PGH Director. This is because where the abolished office and the offices created in its place have similar functions, the abolition lacks good faith (Jose L. Guerrero v. Hon. Antonio V. Arizabal, G.R. No. 81928, June 4, 1990, 186 SCRA 108 [1990]). We hereby apply the principle enunciated in Cezar Z. Dario v. Hon. Salvador M. Mison (176 SCRA 84 [1989]) that abolition which merely changes the nomenclature of positions is invalid and does not result in the removal of the incumbent.

The above notwithstanding, and assuming that the abolition of the position of the PGH Director and the creation of a UP-PGH Medical Center Director are valid, the removal of the incumbent is still not justified for the reason that the duties and functions of the two positions are basically the same.

This was also our ruling in Guerrero v. Arizabal (186 SCRA 108 [1990]), wherein we declared that the substantial identity in the functions between the two offices was indicia of bad faith in the removal of petitioner pursuant to a reorganization. (Alexis C. Canonizado, et al. v. Hon. Alexander P. Aguirre, et al., G.R. No. 133132, Jan. 25, 2000, En Banc [Gonzaga-Reyes])

299. What is reorganization? When is it valid? When is it invalid?

Held: 1. Reorganization takes place when there is an alteration of the existing structure of government offices or units therein, including the lines of control, authority and responsibility between them. It involves a reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions. Naturally, it may result in the loss of one's position through removal or abolition of an office. However, for a reorganization to be valid, it must also pass the test of good faith, laid down in Dario v. Mison (176 SCRA 84 [1989]):

x x x As a general rule, a reorganization is carried out in "good faith" if it is for the purpose of economy or to make bureaucracy more efficient. In that event, no dismissal (in case of dismissal) or separation actually occurs because the position itself ceases to exist. And in that case, security of tenure would not be a Chinese wall. Be that as it may, if the "abolition" which is nothing else but a separation or removal,

is done for political reasons or purposely to defeat security of tenure, or otherwise not in good faith, no valid "abolition" takes place and whatever "abolition" is done, is void ab initio. There is an invalid "abolition" as where there is merely a change of nomenclature of positions, or where claims of economy are belied by the existence of ample funds.

(Alexis C. Canonizado, et al. v. Hon. Alexander P. Aguirre, et al., G.R. No. 133132, Jan. 25, 2000, En Banc [Gonzaga-Reyes])

2. While the President‟s power to reorganize can not be denied, this does not mean however that the reorganization itself is properly made in accordance with law. Well-settled is the rule that reorganization is regarded as valid provided it is pursued in good faith. Thus, in Dario v. Mison, this Court has had the occasion to clarify that:

“As a general rule, a reorganization is carried out in „good faith‟ if it is for the purpose of economy or to make the bureaucracy more efficient. In that event no dismissal or separation actually occurs because the position itself ceases to exist. And in that case the security of tenure would not be a Chinese wall. Be that as it may, if the abolition which is nothing else but a separation or removal, is done for political reasons or purposely to defeat security of tenure, or otherwise not in good faith, no valid abolition takes place and whatever abolition done is void ab initio. There is an invalid abolition as where there is merely a change of nomenclature of positions or where claims of economy are belied by the existence of ample funds.” (176 SCRA 84)

(Larin v. Executive Secretary, 280 SCRA 713, Oct. 16, 1997)

300. What are the circumstances evidencing bad faith in the removal of employees as a result of reorganization and which may give rise to a claim for reinstatement or reappointment)?

Held:

1) Where there is a significant increase in the number of positions in the new staffing pattern of the department or agency concerned;

2) Where an office is abolished and another performing substantially the same functions is created;

3) Where incumbents are replaced by those less qualified in terms of status of appointment, performance and merit;

4) Where there is a reclassification of offices in the department or agency concerned and the reclassified offices perform substantially the same functions as the original offices;

5) Where the removal violates the order of separation provided in Section 3 hereof. (Sec. 2, R.A. No. 6656; Larin v. Executive Secretary, 280 SCRA 713, Oct. 16, 1997)