Non-career officials have security of tenure A Law Each Day

From day one of the P-Noy government, a raging controversy has swirled around the non-career positions in the civil service in view of the issuance of memorandum circular No. 1 declaring all of them vacant. The controversy revolves around the question of whether non-career employees in the civil service enjoy security of tenure.

This question is actually an offshoot of the 1987 Administrative Code provision classifying the positions in the civil service into career and non-career (Section 6 (2), Chapter 2, Tile I-A Book V). As specified in this code, security of tenure is one of the main characteristics that distinguish a career from a non-career position. By implication therefore, non-career positions seem to have no security of tenure.

This Administrative Code provision however apparently runs counter to the mandate of Section 2(3) Article IX-B of the Constitution which provides that “No officer or employee of the civil service shall be removed or suspended except for cause provided by law”. The Constitution is clear. It does not make any distinction. It applies to all civil service employees. It does not say that only the removal or suspension of career employees must be for cause provided by law. In fact, in the case of Jocom vs. Regalado et.al, G.R. 77373, August 22, 1991, the Supreme Court already ruled that “Regardless of the classification of the position held by a government employee covered by civil service rules, be it a career or non-career position, such employee may not be removed without just cause. An employee who belongs to the non career service is protected from removal or suspension without just cause and non observance of due process”.

Based on law and jurisprudence therefore, it is clear that even non-career civil service employees enjoy security of tenure in the sense that if their appointment is for a fixed or definite term, or for a project, and it has not yet expired, they cannot be removed or suspended from office at the mere whim or caprice of the appointing power but only for causes enumerated in the Administrative Code like dishonesty, oppression, neglect of duty, misconduct and disgraceful or immoral conduct, established after due notice and hearing.

Generally all positions in the non-career service have definite duration or period. It may be up to a specific date fixed in his appointment papers or it may be co-terminus with the appointing authority. During that period, they have security of tenure. But when that period ends or expires, the holders of such position should vacate the office.

The exception here are the positions which are primarily confidential requiring the highest degree of confidence, close intimacy and trust, like the cabinet secretaries and personal staff. They do not have fixed term of office. They hold office at the pleasure of the appointing authority or for as long as the trust and confidence in them last. When required to relinquish their office due to loss of confidence, they cannot complain that their right to security of tenure is violated because they are not actually dismissed or removed. In effect their term of office has simply expired. Expiration of the term is not covered by the constitutional provision on security of tenure (Achacoso vs. Macaraig et.al., G.R. 93023, March 31, 1991).

Career and non-career civil service officials and/or employees therefore both enjoy security of tenure. The main difference between them is that the tenure of the career employees is permanent in the sense that they hold office until they reach the retirement age; while that of the non-career ones are non-permanent in the sense that they hold office only for a temporary and limited period. –Jose C. Sison (The Philippine Star)

Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now available. Call Tel. 7249445.

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E-mail at: jcson@pldtdsl.net