Clever ploy

When is a transfer considered a removal from office? This is answered in this case of Raffy.

Raffy was working as the Municipal Engineer of a town in Eastern Visayas. After the 1998 Elections, the newly elected Mayor told him during a meeting of department heads to resign under pain of abolition of his position because he was perceived as a well known supporter of the political party opposed to the Mayor’s candidacy. Not wishing to antagonize the Mayor, Raffy verbally informed him a week later that he (Raffy) was open to the possibility of being transferred or detailed at the Provincial Engineer’s Office. Then and there the mayor agreed and told Raffy to accomplish the requisite Form 212, secure copies of his service records and submit the same to the Office of the Provincial Governor for possible appointment as Assistant Provincial Engineer. Then on August 3, 1998 the Mayor endorsed and recommended the same to the Provincial Governor.

On August 12, 1998, the Mayor wrote Raffy that he was granting Raffy’s request to transfer to the Provincial Engineering Office within thirty days from receipt pursuant to Civil Service Commission Memorandum Circular (CSC MC No. 38, S 1993) specifically stating that "if, for whatever reason, the employee fails to transfer on the specified date, he shall be considered resigned and his reemployment in his former office shall be at the discretion of his head". Meanwhile Raffy continued reporting for work at the Municipal Engineer’s Office pending action on the Mayor’s endorsement of his request for transfer. However the Governor did not act on such endorsement.

So on September 24, 1998, the mayor wrote Raffy that he is considered resigned from office as of September 13, 1998 pursuant to CSC MC No. 38, S. 1993 because of the lapse of the 30-day period given for which he did not request an extension. In a letter dated October 2, 1998, Raffy requested the mayor to withdraw his separation letter of September 24, 1998. Raffy pointed out that since the request for transfer to the Provincial Engineer’s Office was not acted upon, the same never became effective and, therefore he did not cease to be an employee of the municipal government. But the Mayor explained in his reply dated October 15, 1998 that Raffy was not terminated but that his separation from the service was by operation of law (CSC MC No. 38, S 1993). Was the Mayor correct?

No. The aforesaid memorandum requires a written and not merely a verbal request for an employee to transfer to another office. Moreover, such request must be expressed and unequivocal, and cannot be merely implied or ambiguous. It must be such that the employee intended to surrender his permanent office. It connotes an absolute relinquishment of an office in exchange for another office. Such request must be voluntary and not vitiated by force, coercion, or intimidation or even deceit. A transfer that aims to lure the employee away from his permanent position cannot be done without the employee’s consent. For that would constitute removal from office. Indeed no permanent transfer can take place unless the officer or employee is first removed from the position held and then appointed to another position. A transfer that aims by indirect method to terminate the services or to force resignation constitutes removal. The right of employees to security of tenure should never be merely at the whims and pleasure of some unscrupulous and heartless politicians.

In this case, Raffy’s request for permission to transfer to the Provincial Engineer’s Office is not written. He did not want to risk unemployment by making a written request for a transfer without first being assured of his appointment by the Provincial Governor, hence he opted to wait for such approval before submitting a written request. As it were, the Governor failed to act on his application. Moreover, the Mayor, who perceived that Raffy was a well known supporter of the political party opposed to his candidacy, coerced Raffy into resigning and even threatened to have his position abolished. In the light of these demands and threats, Raffy had only three options: to resign, to agree to transfer to another office, or to remain as Municipal Engineer with the threat of abolition of his position by the Mayor hanging over his head. It is clear therefore that Raffy did not freely and voluntarily seek permission to transfer to another office. His supposed transfer to the Office of the Provincial Engineer was shrewd machination or clever ploy resorted to by the Mayor to oust Raffy from his position as Municipal Engineer; hence such transfer was illegal (Rosales vs. Mijares, G.R. 154095).

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