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EN BANC

[G.R. No. 124893. April 18, 1997]
LYNETTE G. GARVIDA, petitioner, vs. FLORENCIO G. SALES, JR., THE
HONORABLE COMMISSION ON ELECTIONS, ELECTION OFFICER DIONISIO F.
RIOS and PROVINCIAL SUPERVISOR NOLI PIPO, respondents.

DECISION
PUNO, J.:
Petitioner Lynette G. Garvida seeks to annul and set aside the order dated May 2, 1996 of
respondent Commission on Elections (COMELEC) en banc suspending her proclamation
as the duly elected Chairman of the Sangguniang Kabataan of Barangay San Lorenzo,
Municipality of Bangui, Ilocos Norte.
The facts are undisputed. The Sangguniang Kabataan (SK) elections nationwide was
scheduled to be held on May 6, 1996. On March 16, 1996, petitioner applied for
registration as member and voter of the Katipunan ng Kabataan of Barangay San
Lorenzo, Bangui, Ilocos Norte. The Board of Election Tellers, however, denied her
application on the ground that petitioner, who was then twenty-one years and ten (10)
months old, exceeded the age limit for membership in the Katipunan ng Kabataan as laid
down in Section 3 [b] of COMELEC Resolution No. 2824.
On April 2, 1996, petitioner filed a "Petition for Inclusion as Registered Kabataang
Member and Voter" with the Municipal Circuit Trial Court, Bangui-Pagudpud-AdamsDamalneg, Ilocos Norte. In a decision dated April 18, 1996, the said court found
petitioner qualified and ordered her registration as member and voter in the Katipunan ng
Kabataan. [1] The Board of Election Tellers appealed to the Regional Trial Court, Bangui,
Ilocos Norte. [2] The presiding judge of the Regional Trial Court, however, inhibited
himself from acting on the appeal due to his close association with petitioner. [3]
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On April 23, 1996, petitioner filed her certificate of candidacy for the position of
Chairman, Sangguniang Kabataan, Barangay San Lorenzo, Municipality of Bangui,
Province of Ilocos Norte. In a letter dated April 23, 1996, respondent Election Officer
Dionisio F. Rios, per advice of Provincial Election Supervisor Noli Pipo, [4] disapproved
petitioner's certificate of candidacy again due to her age. [5] Petitioner, however, appealed
to COMELEC Regional Director Filemon A. Asperin who set aside the order of
respondents and allowed petitioner to run. [6]
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On May 2, 1996, respondent Rios issued a memorandum to petitioner informing her of
her ineligibility and giving her 24 hours to explain why her certificate of candidacy
should not be disapproved. [7] Earlier and without the knowledge of the COMELEC
officials, private respondent Florencio G. Sales, Jr., a rival candidate for Chairman of the
Sangguniang Kabataan, filed with the COMELEC en banc a "Petition of Denial and/or
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Cancellation of Certificate of Candidacy" against petitioner Garvida for falsely
representing her age qualification in her certificate of candidacy. The petition was sent
by facsimile [8] and registered mail on April 29, 1996 to the Commission on Elections
National Office, Manila.
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On May 2, 1996, the same day respondent Rios issued the memorandum to petitioner, the
COMELEC en banc issued an order directing the Board of Election Tellers and Board of
Canvassers of Barangay San Lorenzo to suspend the proclamation of petitioner in the
event she won in the election. The order reads as follows:
"Acting on the Fax "Petition for Denial And/Or Cancellation of Certificate of
Candidacy" by petitioner Florencio G. Sales, Jr. against Lynette G. Garvida,
received on April 29, 1996, the pertinent allegations of which reads:
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5.
That the said respondent is disqualified to become a voter and a candidate for the
SK for the reason that she will be more than twenty-one (21) years of age on May 6,
1996; that she was born on June 11, 1974 as can be gleaned from her birth certificate, a
copy of which is hereto attached and marked as Annex "A";
6.
That in filing her certificate of candidacy as candidate for SK of Bgy. San
Lorenzo, Bangui, Ilocos Norte, she made material representation which is false and as
such, she is disqualified; that her certificate of candidacy should not be given due course
and that said candidacy must be cancelled;
x x x."
the Commission, it appearing that the petition is meritorious, hereby DIRECTS
the Board of Election Tellers/Board of Canvassers of Barangay San Lorenzo,
Bangui, Ilocos Norte, to suspend the proclamation of Lynette G. Garvida in the
event she garners the highest number of votes for the position of Sangguniang
Kabataan [sic].
Meantime, petitioner is hereby required to submit immediately ten (10) copies of
his petition and to pay the filing and legal research fees in the amount of
P510.00.
SO ORDERED."

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[9]

On May 6, 1996, election day, petitioner garnered 78 votes as against private
respondent's votes of 76. [10] In accordance with the May 2, 1996 order of the COMELEC
en banc, the Board of Election Tellers did not proclaim petitioner as the winner. Hence,
the instant petition for certiorari was filed on May 27, 1996.
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On June 2, 1996, however, the Board of Election Tellers proclaimed petitioner the winner
for the position of SK chairman, Barangay San Lorenzo, Bangui, Ilocos Norte. [11] The
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proclamation was "without prejudice to any further action by the Commission on
Elections or any other interested party." [12] On July 5, 1996, petitioner ran in the
Pambayang Pederasyon ng mga Sangguniang Kabataan for the municipality of Bangui,
Ilocos Norte. She won as Auditor and was proclaimed one of the elected officials of the
Pederasyon. [13]
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Petitioner raises two (2) significant issues: the first concerns the jurisdiction of the
COMELEC en banc to act on the petition to deny or cancel her certificate of candidacy;
the second, the cancellation of her certificate of candidacy on the ground that she has
exceeded the age requirement to run as an elective official of the SK.
I
Section 532 (a) of the Local Government Code of 1991 provides that the conduct of the
SK elections is under the supervision of the COMELEC and shall be governed by the
Omnibus Election Code. [14] The Omnibus Election Code, in Section 78, Article IX,
governs the procedure to deny due course to or cancel a certificate of candidacy, viz:
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"Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. -A verified petition seeking to deny due course or to cancel a certificate of
candidacy may be filed by any person exclusively on the ground that any
material representation contained therein as required under Section 74 hereof is
false. The petition may be filed at any time not later than twenty-five days from
the time of filing of the certificate of candidacy and shall be decided, after due
notice and hearing, not later than fifteen days before election."
In relation thereto, Rule 23 of the COMELEC Rules of Procedure provides that a petition
to deny due course to or cancel a certificate of candidacy for an elective office may be
filed with the Law Department of the COMELEC on the ground that the candidate has
made a false material representation in his certificate. The petition may be heard and
evidence received by any official designated by the COMELEC after which the case shall
be decided by the COMELEC itself. [15]
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Under the same Rules of Procedure, jurisdiction over a petition to cancel a certificate of
candidacy lies with the COMELEC sitting in Division, not en banc. Cases before a
Division may only be entertained by the COMELEC en banc when the required number
of votes to reach a decision, resolution, order or ruling is not obtained in the Division.
Moreover, only motions to reconsider decisions, resolutions, orders or rulings of the
COMELEC in Division are resolved by the COMELEC en banc. [16] It is therefore the
COMELEC sitting in Divisions that can hear and decide election cases. This is clear from
Section 3 of the said Rules thus:
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"Sec. 3. The Commission Sitting in Divisions. -- The Commission shall sit in
two (2) Divisions to hear and decide protests or petitions in ordinary actions,
special actions, special cases, provisional remedies, contempt and special
proceedings except in accreditation of citizens' arms of the Commission." [17]
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In the instant case, the COMELEC en banc did not refer the case to any of its Divisions
upon receipt of the petition. It therefore acted without jurisdiction or with grave abuse of
discretion when it entertained the petition and issued the order of May 2, 1996. [18]
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II
The COMELEC en banc also erred when it failed to note that the petition itself did not
comply with the formal requirements of pleadings under the COMELEC Rules of
Procedure. These requirements are:
"Sec. 1. Filing of Pleadings. -- Every pleading, motion and other papers must be
filed in ten (10) legible copies. However, when there is more than one
respondent or protestee, the petitioner or protestant must file additional number
of copies of the petition or protest as there are additional respondents or
protestees.
Sec. 2. How Filed. -- The documents referred to in the immediately preceding
section must be filed directly with the proper Clerk of Court of the Commission
personally, or, unless otherwise provided in these Rules, by registered mail. In
the latter case, the date of mailing is the date of filing and the requirement as to
the number of copies must be complied with.
Sec. 3. Form of Pleadings, etc. -- (a) All pleadings allowed by these Rules shall
be printed, mimeographed or typewritten on legal size bond paper and shall be in
English or Filipino.
x x x."
Every pleading before the COMELEC must be printed, mimeographed or typewritten in
legal size bond paper and filed in at least ten (10) legible copies. Pleadings must be filed
directly with the proper Clerk of Court of the COMELEC personally, or, by registered
mail.
In the instant case, the subject petition was not in proper form. Only two (2) copies of the
petition were filed with the COMELEC. [19] Also, the COMELEC en banc issued its
Resolution on the basis of the petition transmitted by facsimile, not by registered mail.
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A facsimile or fax transmission is a process involving the transmission and reproduction
of printed and graphic matter by scanning an original copy, one elemental area at a time,
and representing the shade or tone of each area by a specified amount of electric current.
[20] The current is transmitted as a signal over regular telephone lines or via microwave
relay and is used by the receiver to reproduce an image of the elemental area in the
proper position and the correct shade. [21] The receiver is equipped with a stylus or other
device that produces a printed record on paper referred to as a facsimile. [22]

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Filing a pleading by facsimile transmission is not sanctioned by the COMELEC Rules of
Procedure, much less by the Rules of Court. A facsimile is not a genuine and authentic
pleading. It is, at best, an exact copy preserving all the marks of an original. [23]
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Without the original, there is no way of determining on its face whether the facsimile
pleading is genuine and authentic and was originally signed by the party and his counsel.
It may, in fact, be a sham pleading. The uncertainty of the authenticity of a facsimile
pleading should have restrained the COMELEC en banc from acting on the petition and
issuing the questioned order. The COMELEC en banc should have waited until it
received the petition filed by registered mail.
III
To write finis to the case at bar, we shall now resolve the issue of petitioner's age.
The Katipunan ng Kabataan was originally created by Presidential Decree No. 684 in
1975 as the Kabataang Barangay, a barangay youth organization composed of all
residents of the barangay who were at least 15 years but less than 18 years of age. [24]
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The Kabataang Barangay sought to provide its members a medium to express their views
and opinions and participate in issues of transcendental importance. [25] Its affairs were
administered by a barangay youth chairman together with six barangay youth leaders who
were actual residents of the barangay and were at least 15 years but less than 18 years of
age. [26] In 1983, Batas Pambansa Blg. 337, then the Local Government Code, raised the
maximum age of the Kabataang Barangay members from "less than 18 years of age" to
"not more than 21 years of age."
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The Local Government Code of 1991 changed the Kabataang Barangay into the
Katipunan ng Kabataan. It, however, retained the age limit of the members laid down in
B.P. 337 at 15 but not more than 21 years old. [27] The affairs of the Katipunan ng
Kabataan are administered by the Sangguniang Kabataan (SK) composed of a chairman
and seven (7) members who are elected by the Katipunan ng Kabataan. [28]
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The chairman automatically becomes ex-officio member of the Sangguniang
Barangay. [29] A member of the SK holds office for a term of three (3) years, unless
sooner removed for cause, or becomes permanently incapacitated, dies or resigns from
office. [30]
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Membership in the Katipunan ng Kabataan is subject to specific qualifications laid down
by the Local Government Code of 1991, viz:
"Sec. 424. Katipunan ng Kabataan. -- The katipunan ng kabataan shall be
composed of all citizens of the Philippines actually residing in the barangay for
at least six (6) months, who are fifteen (15) but not more than twenty-one (21)
years of age, and who are duly registered in the list of the sangguniang kabataan
or in the official barangay list in the custody of the barangay secretary."

A member of the Katipunan ng Kabataan may become a candidate for the Sangguniang
Kabataan if he possesses the following qualifications:
"Sec. 428. Qualifications. -- An elective official of the sangguniang kabataan
must be a citizen of the Philippines, a qualified voter of the katipunan ng
kabataan, a resident of the barangay for at least one (1) year immediately prior to
election, at least fifteen (15) years but not more than twenty-one (21) years of
age on the day of his election, able to read and write Filipino, English, or the
local dialect, and must not have been convicted of any crime involving moral
turpitude."
Under Section 424 of the Local Government Code, a member of the Katipunan ng
Kabataan must be: (a) a Filipino citizen; (b) an actual resident of the barangay for at
least six months; (c) 15 but not more than 21 years of age; and (d) duly registered in
the list of the Sangguniang Kabataan or in the official barangay list. Section 428 of the
Code requires that an elective official of the Sangguniang Kabataan must be: (a) a
Filipino citizen; (b) a qualified voter in the Katipunan ng Kabataan; (c) a resident of
the barangay at least one (1) year immediately preceding the election; (d) at least 15
years but not more than 21 years of age on the day of his election; (e) able to read and
write; and (f) must not have been convicted of any crime involving moral turpitude.
For the May 6, 1996 SK elections, the COMELEC interpreted Sections 424 and 428 of
the Local Government Code of 1991 in Resolution No. 2824 and defined how a member
of the Katipunan ng Kabataan becomes a qualified voter and an elective official. Thus:
"Sec. 3. Qualifications of a voter. -- To be qualified to register as a voter in the
SK elections, a person must be:
a) a citizen of the Philippines;
b) fifteen (15) but not more than twenty-one (21) years of age on election day, that is, he
must have been born between May 6, 1975 and May 6, 1981, inclusive; and
c) a resident of the Philippines for at least one (1) year and actually residing in the
barangay wherein he proposes to vote for at least six (6) months immediately preceding
the elections."
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"Sec. 6. Qualifications of elective members. -- An elective official of the SK
must be:
a) a qualified voter;
b) a resident in the barangay for at least one (1) year immediately prior to the elections;
and

c) able to read and write Filipino or any Philippine language or dialect or English.
Cases involving the eligibility or qualification of candidates shall be decided by
the city/municipal Election Officer (EO) whose decision shall be final."
A member of the Katipunan ng Kabataan may be a qualified voter in the May 6, 1996 SK
elections if he is: (a) a Filipino citizen; (b) 15 but not more than 21 years of age on
election day, i.e., the voter must be born between May 6, 1975 and May 6, 1981,
inclusive; and (c) a resident of the Philippines for at least one (1) year and an actual
resident of the barangay at least six (6) months immediately preceding the elections. A
candidate for the SK must: (a) possess the foregoing qualifications of a voter; (b) be a
resident in the barangay at least one (1) year immediately preceding the elections; and (c)
able to read and write.
Except for the question of age, petitioner has all the qualifications of a member and voter
in the Katipunan ng Kabataan and a candidate for the Sangguniang Kabataan. Petitioner's
age is admittedly beyond the limit set in Section 3 [b] of COMELEC Resolution No.
2824. Petitioner, however, argues that Section 3 [b] of Resolution No. 2824 is unlawful,
ultra vires and beyond the scope of Sections 424 and 428 of the Local Government Code
of 1991. She contends that the Code itself does not provide that the voter must be
exactly 21 years of age on election day. She urges that so long as she did not turn
twenty-two (22) years old, she was still twenty-one years of age on election day and
therefore qualified as a member and voter in the Katipunan ng Kabataan and as candidate
for the SK elections.
A closer look at the Local Government Code will reveal a distinction between the
maximum age of a member in the Katipunan ng Kabataan and the maximum age of an
elective SK official. Section 424 of the Code sets a member's maximum age at 21 years
only. There is no further provision as to when the member shall have turned 21 years of
age. On the other hand, Section 428 provides that the maximum age of an elective SK
official is 21 years old "on the day of his election." The addition of the phrase "on the
day of his election" is an additional qualification. The member may be more than 21
years of age on election day or on the day he registers as member of the Katipunan ng
Kabataan. The elective official, however, must not be more than 21 years old on the day
of election. The distinction is understandable considering that the Code itself provides
more qualifications for an elective SK official than for a member of the Katipunan ng
Kabataan. Dissimilum dissimilis est ratio. [31] The courts may distinguish when there are
facts and circumstances showing that the legislature intended a distinction or
qualification. [32]
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The qualification that a voter in the SK elections must not be more than 21 years of age
on the day of the election is not provided in Section 424 of the Local Government Code
of 1991. In fact the term "qualified voter" appears only in COMELEC Resolution No.
2824. [33] Since a "qualified voter" is not necessarily an elective official, then it may be
assumed that a "qualified voter" is a "member of the Katipunan ng Kabataan." Section
424 of the Code does not provide that the maximum age of a member of the Katipunan
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ng Kabataan is determined on the day of the election. Section 3 [b] of COMELEC
Resolution No. 2824 is therefore ultra vires insofar as it sets the age limit of a voter for
the SK elections at exactly 21 years on the day of the election.
The provision that an elective official of the SK should not be more than 21 years of age
on the day of his election is very clear. The Local Government Code speaks of years, not
months nor days. When the law speaks of years, it is understood that years are of 365
days each. [34] One born on the first day of the year is consequently deemed to be one
year old on the 365th day after his birth -- the last day of the year. [35] In computing
years, the first year is reached after completing the first 365 days. After the first 365th
day, the first day of the second 365-day cycle begins. On the 365th day of the second
cycle, the person turns two years old. This cycle goes on and on in a lifetime. A person
turns 21 years old on the 365th day of his 21st 365-day cycle. This means on his 21st
birthday, he has completed the entire span of 21 365-day cycles. After this birthday, the
365-day cycle for his 22nd year begins. The day after the 365th day is the first day of the
next 365-day cycle and he turns 22 years old on the 365th day.
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The phrase "not more than 21 years of age" means not over 21 years, not beyond 21
years. It means 21 365-day cycles. It does not mean 21 years and one or some days or a
fraction of a year because that would be more than 21 365-day cycles. "Not more than 21
years old" is not equivalent to "less than 22 years old," contrary to petitioner's claims.
The law does not state that the candidate be less than 22 years on election day.
In P.D. 684, the law that created the Kabataang Barangay, the age qualification of a
barangay youth official was expressly stated as "x x x at least fifteen years of age or over
but less than eighteen x x x." [36] This provision clearly states that the youth official
must be at least 15 years old and may be 17 years and a fraction of a year but should not
reach the age of eighteen years. When the Local Government Code increased the age
limit of members of the youth organization to 21 years, it did not reenact the provision in
such a way as to make the youth "at least 15 but less than 22 years old." If the intention
of the Code's framers was to include citizens less than 22 years old, they should have
stated so expressly instead of leaving the matter open to confusion and doubt. [37]
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Former Senator Aquilino Q. Pimentel, the sponsor and principal author of the Local
Government Code of 1991 declared that one of the reasons why the Katipunan ng
Kabataan was created and the Kabataang Barangay discontinued was because most, if not
all, Kabataang Barangay leaders were already over 21 years of age by the time President
Aquino assumed power. [38] They were not the "youth" anymore. The Local
Government Code of 1991 fixed the maximum age limit at not more than 21 years [39]
and the only exception is in the second paragraph of Section 423 which reads:
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"Sec. 423. Creation and Election. -- a)

x x x;

b) A sangguniang kabataan official who, during his term of office, shall have
passed the age of twenty-one (21) years shall be allowed to serve the remaining
portion of the term for which he was elected."

The general rule is that an elective official of the Sangguniang Kabataan must
not be more than 21 years of age on the day of his election. The only exception is when
the official reaches the age of 21 years during his incumbency. Section 423 [b] of the
Code allows him to serve the remaining portion of the term for which he was elected.
According to Senator Pimentel, the youth leader must have "been elected prior to his 21st
birthday." [40] Conversely, the SK official must not have turned 21 years old before his
election. Reading Section 423 [b] together with Section 428 of the Code, the latest date
at which an SK elective official turns 21 years old is on the day of his election. The
maximum age of a youth official must therefore be exactly 21 years on election day.
Section 3 [b] in relation to Section 6 [a] of COMELEC Resolution No. 2824 is not ultra
vires insofar as it fixes the maximum age of an elective SK official on the day of his
election.
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In the case at bar, petitioner was born on June 11, 1974. On March 16, 1996, the day she
registered as voter for the May 6, 1996 SK elections, petitioner was twenty-one (21)
years and nine (9) months old. On the day of the elections, she was 21 years, 11 months
and 5 days old. When she assumed office on June 1, 1996, she was 21 years, 11 months
and 20 days old and was merely ten (10) days away from turning 22 years old. Petitioner
may have qualified as a member of the Katipunan ng Kabataan but definitely, petitioner
was over the age limit for elective SK officials set by Section 428 of the Local
Government Code and Sections 3 [b] and 6 of Comelec Resolution No. 2824. She was
ineligible to run as candidate for the May 6, 1996 Sangguniang Kabataan elections.
The requirement that a candidate possess the age qualification is founded on public
policy and if he lacks the age on the day of the election, he can be declared ineligible.

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[41]

In the same vein, if the candidate is over the maximum age limit on the day of the
election, he is ineligible. The fact that the candidate was elected will not make the age
requirement directory, nor will it validate his election. [42] The will of the people as
expressed through the ballot cannot cure the vice of ineligibility. [43]
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The ineligibility of petitioner does not entitle private respondent, the candidate who
obtained the highest number of votes in the May 6, 1996 elections, to be declared
elected. [44] A defeated candidate cannot be deemed elected to the office. [45] Moreover,
despite his claims, [46] private respondent has failed to prove that the electorate
themselves actually knew of petitioner's ineligibility and that they maliciously voted for
her with the intention of misapplying their franchises and throwing away their votes for
the benefit of her rival candidate. [47]
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Neither can this Court order that pursuant to Section 435 of the Local Government Code
petitioner should be succeeded by the Sangguniang Kabataan member who obtained the
next highest number of votes in the May 6, 1996 elections. [48] Section 435 applies when
a Sangguniang Kabataan Chairman "refuses to assume office, fails to qualify, [49] is
convicted of a felony, voluntarily resigns, dies, is permanently incapacitated, is removed
from office, or has been absent without leave for more than three (3) consecutive
months."
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The question of the age qualification is a question of eligibility. [50]
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Being "eligible" means being "legally qualified; capable of being legally chosen." [51]
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Ineligibility, on the other hand, refers to the lack of the qualifications prescribed in the
Constitution or the statutes for holding public office. [52] Ineligibility is not one of the
grounds enumerated in Section 435 for succession of the SK Chairman.
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To avoid a hiatus in the office of SK Chairman, the Court deems it necessary to order that
the vacancy be filled by the SK member chosen by the incumbent SK members of
Barangay San Lorenzo, Bangui, Ilocos Norte by simple majority from among themselves.
The member chosen shall assume the office of SK Chairman for the unexpired portion of
the term, and shall discharge the powers and duties, and enjoy the rights and privileges
appurtenant to said office.
IN VIEW WHEREOF, the petition is dismissed and petitioner Lynette G. Garvida is
declared ineligible for being over the age qualification for candidacy in the May 6, 1996
elections of the Sangguniang Kabataan, and is ordered to vacate her position as Chairman
of the Sangguniang Kabataan of Barangay San Lorenzo, Bangui, Ilocos Norte. The
Sangguniang Kabataan member voted by simple majority by and from among the
incumbent Sangguniang Kabataan members of Barangay San Lorenzo, Bangui, Ilocos
Norte shall assume the office of Sangguniang Kabataan Chairman of Barangay San
Lorenzo, Bangui, Ilocos Norte for the unexpired portion of the term.
SO ORDERED.

EN BANC
[G.R. No. 137329. August 9, 2000]
ROGELIO M. TORAYNO SR., GENEROSO ELIGAN and JACQUELINE M.
SERIÑO, petitioners, vs. COMMISSION ON ELECTIONS and VICENTE Y.
EMANO, respondents.
DECISION
PANGANIBAN, J.:
The Constitution and the law requires residence as a qualification for seeking
and holding elective public office, in order to give candidates the opportunity to
be familiar with the needs, difficulties, aspirations, potentials for growth and all
matters vital to the welfare of their constituencies; likewise, it enables the

electorate to evaluate the office seekers' qualifications and fitness for the job they
aspire for. Inasmuch as Vicente Y. Emano has proven that he, together with his
family, (1) had actually resided in a house he bought in 1973 in Cagayan de Oro
City; (2) had actually held office there during his three terms as provincial
governor of Misamis Oriental, the provincial capitol being located therein; and (3)
has registered as voter in the city during the period required by law, he could not
be deemed "a stranger or newcomer" when he ran for and was overwhelmingly
voted as city mayor. Election laws must be liberally construed to give effect to
the popular mandate.
The Case
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court seeking
to set aside the January 18, 1999 Resolution liii[1] of the Commission on Elections
(Comelec) en banc in SPA No. 98-298, which upheld the July 14, 1998
Resolutionliv[2] of the Comelec First Division. The assailed Resolutions ruled that
Private Respondent Vicente Y. Emano possessed the minimum period of
residence to be eligible to vote in Cagayan de Oro City, as well as be voted
mayor thereof.
The Facts
The pertinent facts of the case, as culled from the records, are as follows.
During the 1995 elections, Vicente Y. Emano ran for, was elected, and
proclaimed provincial governor of Misamis Oriental. It was his third consecutive
term as governor of the province. In his Certificate of Candidacy dated March
12, 1995, his residence was declared to be in Tagoloan, Misamis Oriental.
On June 14, 1997, while still the governor of Misamis Oriental, Emano executed
a Voter Registration Record in Cagayan de Oro City (geographically located in
the Province of Misamis Oriental), a highly urbanized city, in which he claimed 20
years of residence. On March 25, 1998, he filed his Certificate of Candidacy for
mayor of the city, stating therein that his residence for the preceding two years
and five months was at 1409 San Jose Street, Capistrano Subdivision, Gusa,
Cagayan de Oro City.
Among those who ran for the mayorship of the city in 1998, along with Emano,
was Erasmo B. Damasing, counsel of herein petitioners. On May 15, 1998,
Petitioners Rogelio M. Torayno Sr., Generoso Q. Eligan and Jacqueline M.
Seriño, all residents of Cagayan de Oro City, filed a Petition before the Comelec,
docketed as SPA No. 98-298, in which they sought the disqualification of Emano
as mayoral candidate, on the ground that he had allegedly failed to meet the oneyear residence requirement. Prior to the resolution of their Petition, the Comelec
proclaimed private respondent as the duly elected city mayor. Thus, on May 29,
1998, petitioners filed another Petition before the Comelec, this time for quo

holding that "[t]he records clearly show that the respondent is an actual resident of Cagayan de Oro City for such a period of time necessary to qualify him to run for mayor therein. it ruled: "There is nothing in the law which bars an elected provincial official from residing and/or registering as a voter in a highly urbanized city whose residents are not given the right to vote for and be elected to a position in the province embracing such highly urbanized city as long as he has complied with the requirements prescribed by law in the case of a qualified voter. 1998 in the May 11. Whether or not private respondent Emano's (a) remaining as governor of Misamis Oriental until he filed his certificate of candidacy for mayor of Cagayan de Oro City on March 25. 1998 election. this recourselvii[5] before this Court. "Neither can the list of voters submitted as evidence for the petitioners showing that the respondent was a registered voter as of March 13. Damasing. the resolution of this issue would depend on the following:lix[7] "1." Allegedly. Barangay Poblacion.lviii[6] petitioners submit that the main issue is whether the "Comelec gravely abused its discretion amounting to lack of jurisdiction in issuing the questioned Resolutions. Tagoloan.warranto. and (2) the proclamation of Erasmo B. Issues In their Memorandum. the Comelec en banc upheld the findings and conclusions of the First Division." Hence. This fact is clearly established by the respondent having a house in the city which has been existing therein since 1973 and where his family has been living since then. as the duly elected mayor of the city. 1995 in Precinct No. the Comelec First Division denied the Petition for Disqualification. who had garnered the next highest number of votes. the two cases were consolidated. 12. Misamis Oriental bolster the petitioner's argument that the respondent is not a resident [or a] registered voter in Cagayan de Oro City since registration in said Precinct No." Additionally. 1998.lv[3] in which they sought (1) the annulment of the election of private respondent. lvi[4] Ruling of the Comelec As earlier stated. In its Resolution dated July 14. Upon petitioners' Motion for Reconsideration and Motion for Consolidation. . 12 does not preclude the respondent from registering anew in another place.

Whether or not Erasmo Damasing. 1998 elections. 1998 elections in Cagayan de Oro City. The Court’s Ruling The Petition has no merit. and (c) admitting. [that he was] a resident of Misamis Oriental. precluded him from acquiring a bona fide domicile of choice for at least one (1) year in Cagayan de Oro City prior to the May 11. We note that petitioners pray. the candidate who had received the second highest number of votes. in sworn statements. should be proclaimed mayor of the city. whether or not Emano's securing a residence certificate in Cagayan de Oro City. considering that respondent Emano was disqualified to run for and hold said office and considering that his disqualification or ineligibility had been extensively brought to the attention and consciousness of the voters prior to the May 11." Petitioners are seeking the resolution of essentially two questions: (1) whether private respondent had duly established his residence in Cagayan de Oro City at least one year prior to the May 11.(b) asserting under oath [that he was] qualified to act as governor of said province until said date. and registering as a voter in said City in June 1997. 2. 1998 elections. and (2) if not. . Differently stated. Erasmo B. who received the second highest number of votes. holding offices as governor of Misamis Oriental in the Capitol Building located in Cagayan de Oro City and having a house therein where [he had] stay[ed] during his tenure as governor. for judgment "declaring Atty. notwithstanding which they still voted for him. as against the undisputed facts above enumerated. 1998 elections. to constitute a change of his domicile of birth in Tagoloan. Misamis Oriental in favor of a new domicile of choice in Cagayan de Oro City for at least one (1) year for purposes of qualifying him to run for city mayor in the May 11. among others. 1998 elections to qualify him to run for the mayorship thereof. can be declared winner. would be legally sufficient. whether Erasmo Damasing." lx[8] And yet. as to disqualify him for being a candidate for city mayor of said City. 3. the candidate for mayor of Cagayan de Oro City in the May 11. Damasing is not a party to the instant "Petition for Certiorari pursuant to Rule[s] 64 and 65" brought before us. Preliminary Matter: Locus Standi of Petitioners Although not raised by the parties. Damasing as entitled to be proclaimed winner as mayor in the May 11. the legal standing of the petitioners was deliberated upon by the Court. 1998 election as to attain notoriety.

residing therein while exercising one's office as governor (the city being the seat of government of the province). 1998. . alleges that he actually and physically resided in Cagayan de Oro City while serving as provincial governor for three consecutive terms. private respondent could not have changed his residence to Cagayan de Oro City while he was still governor of Misamis Oriental. Emano decided to adopt Cagayan de Oro City as his place of residence after the May 1995 elections. private respondent remained a resident of the province. stating therein that he was a resident of 1409 San Jose Street. Private respondent. In this case. Capistrano Subdivision. Misamis Oriental. lxii [10] or to contest the election of a city officer on the ground of ineligibility or disloyalty to the Republic. he had stated that he was a resident of Tagoloan. a quo warranto may be brought only by (1) the solicitor general or (2) a public prosecutor or (3) a person claiming to be entitled to the public office or position usurped or unlawfully held or exercised by another. (3) he had fully exercised the powers and prerogatives of governor until he filed his Certificate of Candidacy for mayor on March 25. being "duly-registered voters" of Cagayan de Oro City. In fact. lxi[9] A reading of the Rules shows that petitioners. securing a residence certificate and registering as voter therein. therefore satisfy the requirement of said laws and rules.Under the Rules of Court. on the other hand. and it is the person concerned who would be in the best position to make a choice. (2) in the pleadings he filed in connection with an election protest against him relating to the 1995 election.lxv[13] He also avers that one's choice of domicile is a matter of intention. not in Cagayan de Oro City. Thus. any voter may file a petition to disqualify a candidate on grounds provided by law.lxiv[12] Main Issue: Residence Qualification for Candidacy Petitioners argue that private respondent maintains his domicile in Tagoloan. Under our election laws and the Comelec Rules of Procedure. They aver that residence is a continuing qualification that an elective official must possess throughout his term. he secured his Community Tax Certificate at the City Treasurer's Office. However.lxiii[11] The petitioners herein. Petitioners claim that in discharging his duties as provincial governor. none of whom qualify under any of the above three categories. the present Petition finds its root in two separate cases filed before the Comelec: (1) SPC 98-298 for disqualification and (2) EPC 98-62 for quo warranto. Misamis Oriental. in January 1997. are without legal standing to bring this suit. since the seat of the provincial government was located at the heart of that city. Petitioners further contend that the following were not sufficient to constitute a change of domicile: having a house in Cagayan de Oro City. as allegedly shown by the following facts: (1) he had run and won as governor of the province of Misamis Oriental for three consecutive terms immediately preceding the 1998 elections.

municipality. Comelec. Public Respondent Comelec relies essentially on Romualdez-Marcos v.lxvi[14] the loss of any of the required qualifications for election merely renders the official's title or right to office open to challenge. Qualifications. Second. especially in private respondent's case in which the seat of government became his adopted place of residence. and which has been filed in view of the solicitor general's Manifestation and Motion in Lieu of Comment. lxix[17] Thus. the poll body argues that "x x x the fact of residence x x x ought to be decisive in determining whether or not an individual has satisfied the Constitution's residency qualification requirement. He is not. . and able to read and write Filipino or any other local language or dialect. Lastly. This meant that. Private respondent contends further that his transfer of legal residence did not ipso facto divest him of his position as provincial governor. Emano had been a voter of the city for the minimum period required by law. must be respected. in requiring candidates to have a minimum period of residence in the area in which they seek to be elected. much less to its voters. Comeleclxvii[15] in its Memorandumlxviii[16]which supports the assailed Resolutions.(a) An elective local official must be a citizen of the Philippines. he continued to discharge his functions as such.Gusa. after all. as ruled in Frivaldo v. In Emano's case." Generally. until he filed his candidacy for mayor in March 1998. First. a resident therein for at least one (1) year immediately preceding the day of the election.lxx[18] which provides for the qualifications of local elective officials. his life and actuations have been closely interwoven with the pulse and beat of Cagayan de Oro City. as expressed in the election result. 39. During the general registration of voters in June 1997. as follows: "SEC. an elective official's transfer of residence does not prevent the performance of that official's duties. During his three terms as governor of Misamis Oriental. a registered voter in the barangay. Emano urges that the sanctity of the people's will. Cagayan de Oro City. a stranger to the city." Law on Qualifications of Local Elective Officials The pertinent provision sought to be enforced is Section 39 of the Local Government Code (LGC) of 1991. the Constitution or the law intends to . or province x x x where he intends to be elected. Cagayan de Oro City. Third. there is no law that prevents an elected official from transferring residence while in office. at the time. Naturally. he registered in one of the precincts of Gusa. city. No one has ever challenged this fact before any tribunal. no one challenged his right to the Office of Provincial Governor when he transferred his residence to Cagayan de Oro City.

Moreover. The Court also stated that it was not "of much importance that in his [Aguinaldo's] certificates of candidacy for provincial governor in the elections of 1988. he leased another residential apartment in Kamias Street. the Comelec found that private respondent and his family had actually been residing in Capistrano Subdivision. where the seat of the provincial government was located. The classification of an area as a highly urbanized or independent component city.prevent the possibility of a "stranger or newcomer unacquainted with the conditions and needs of a community and not identified with the latter from [seeking] an elective office to serve that community. 1998 Certificate of Marriage between Aguinaldo and his second wife. these facts indubitably prove that Vicente Y. Comelec.lxxiv[22] this Court ruled that private respondent therein. he also registered as voter of the same city. Such political subdivisions and voting restrictions. Lerma Dumaguit. Cagayan (part of the Third District in which he sought election as congressman)."lxxv[23] In the case at bar. in a house he had bought in 1973. In June 1997. he physically lived in that city. Tanza. and 1995. Tuguegarao. now Representative Rodolfo E. Cagayan. had duly proven his change of residence from Gattaran. Cagayan (part of the First District) to Tuguegarao. does not completely isolate its . Based on our ruling in Mamba-Perez. Petitioners put much emphasis on the fact that Cagayan de Oro City is a highly urbanized city whose voters cannot participate in the provincial elections. during the three terms (19881998) that he was governor of Misamis Oriental. He proved it with the following facts: (1) in July 1990. for that matter. Tuguegarao." lxxi[19] Such provision is aimed at excluding outsiders "from taking advantage of favorable circumstances existing in that community for electoral gain. private respondent stated that he was a resident of Gattaran. Gusa. and (5) various letters addressed to him and his family showed that he had been a resident of Tuguegarao for at least one year immediately preceding the May 1998 elections. Cagayan de Oro City. Furthermore. This purpose is "best met by individuals who have either had actual residence in the area for a given period or who have been domiciled in the same area either by origin or by choice. however. Cagayan. he leased and lived in a residential apartment in Magallanes Street." lxxiii[21] Facts Showing Change of Residence In the recent en banc case Mamba-Perez v. are simply for the purpose of parity in representation." lxxii[20] Establishing residence in a community merely to meet an election law requirement defeats the purpose of representation: to elect through the assent of voters those most cognizant and sensitive to the needs of the community. 1992. Emano was a resident of Cagayan de Oro City for a period of time sufficient to qualify him to run for public office therein. (2) in July 1995. Aguinaldo of the Third District of Cagayan. the Comelec did not find any bad faith on the part of Emano in his choice of residence. (4) the Certificate of Live Birth of his second daughter. (3) the January 18.

He even paid his 1998 community tax and registered as a voter therein. Emano. therefore. Cagayan. We stress that the residence requirement is rooted in the desire that officials of districts or localities be acquainted not only with the metes and bounds of their constituencies but. hence. Cagayan de Oro City was once an integral part of Misamis Oriental and remains a geographical part of the province. with the constituents themselves -. Not only is it at the center of the province. the Court also declared in Mamba-Perez that "although private respondent declared in his certificates of candidacy prior to the May 11. which is the capital of the province of Cagayan. he is a resident of Cagayan de Oro City and eligible to run for mayor thereof. it is itself the seat of the provincial government. much less. the provincial officials who carry out their functions in the city cannot avoid residing therein. when he decided to adopt it as his permanent place of residence. could not be said to be a stranger or newcomer to the city in the last year of his third term. Significantly. this Court cannot make any pronouncement on such issue. the fact is that he was actually a resident of the Third District not just for one (1) year prior to the May 11.residents. as in this case. having been the governor of Misamis Oriental for three terms and consequently residing in Cagayan de Oro City within that period. On the basis. of the facts proven before the Comelec. we hold that he has satisfied the residence qualification required by law for the mayorship of the city. private respondent was actually and physically residing in Cagayan de Oro City while discharging his duties as governor of Misamis Oriental. politics." Similarly in the instant case.especially when the city is located at the very heart of the province itself. it would be convenient for him to maintain his residence in Tuguegarao. As a consequence. Vicente Y. His claim that he ha[s] been a resident of Tuguegarao since July 1990 is credible considering that he was governor from 1988 to 1998 and. Undeniably. commerce and other businesses from the entire province -and vice versa -. To all intents and purposes of the Constitution and the law. To petitioners' argument that Emano could not have continued to qualify as provincial governor if he was indeed a resident of Cagayan de Oro City.their . Considerations of due process prevent us from adjudging matters not properly brought to us. more important. more important. however. 1998 elections but for more than seven (7) years since July 1990. we respond that the issue before this Court is whether Emano's residence in the city qualifies him to run for and be elected as mayor. getting acquainted with its concerns and interests. not whether he could have continued sitting as governor of the province. He owned a house in the city and resided there together with his family. 1998 elections that he was a resident of Gattaran. There was no challenge to his eligibility to continue running the province.

and all matters vital to their common welfare. To successfully challenge a winning candidate's qualifications. The requisite period would give candidates the opportunity to be familiar with their desired constituencies. Interpretation to Favor Popular Mandate There is no question that private respondent was the overwhelming choice of the people of Cagayan de Oro City. practical and common-sense rationale for the residence requirement. and likewise for the electorate to evaluate the former's qualifications and fitness for the offices they seek. In other words. physical and personal presence of herein private respondent in Cagayan de Oro City is substantial enough to show his intention to fulfill the duties of mayor and for the voters to evaluate his qualifications for the mayorship. "it would be far better to err in favor of popular sovereignty than to be right in complex but little understood legalisms. the actual. political laws must be interpreted to give life and spirit to the popular mandate. . for it is merely sound public policy to cause elective offices to be filled by those who are the choice of the majority. of discretion in upholding private respondent's election. Petitioners' very legalistic.lxxvii[25] Verily. academic and technical approach to the residence requirement does not satisfy this simple. laws governing election contests must be liberally construed to the end that the will of the people in the choice of public officials may not be defeated by mere technical objections." lxxx[28] In sum. Comeleclxxix[27] that "election cases involve public interest. in Frivaldo v. we stated in Alberto v. we hold that Respondent Comelec cannot be faulted with abuse." Indeed. aspirations. much less grave abuse. the petitioner must clearly demonstrate that the ineligibility is so patently antagonistic to constitutional and legal principles that overriding such ineligibility and thereby giving effect to the apparent will of the people would ultimately create greater prejudice to the very democratic institutions and juristic traditions that our Constitution and laws so zealously protect and promote. potentials for growth and development. Comelec. we find it apt to reiterate the principle that the manifest will of the people as expressed through the ballot must be given fullest effect. In any action involving the possibility of a reversal of the popular electoral choice.000 votes. thus. He won by a margin of about 30. difficulties. this Court must exert utmost effort to resolve the issues in a manner that would give effect to the will of the majority. In case of doubt. lxxvi [24] Thus.lxxviii[26] the Court held: "x x x [T]his Court has repeatedly stressed the importance of giving effect to the sovereign will in order to ensure the survival of our democracy." In the same vein.needs.

1998. On May 29. Misamis Oriental. 1998 election. holding offices as governor of Misamis Oriental in the Capitol Building located in Cagayan de Oro City and having a house therein where he had stayed during his tenure as governor. and (2) the proclamation of Erasmo B. the Petition is DISMISSED and the assailed Comelec Resolutions AFFIRMED. in sworn statements. can be declared winner. the candidate for mayor of Cagayan de Oro City in the May 11.R. 1995. precluded him from acquiring a bona fide domicile of choice for at least one (1) year in Cagayan de Oro City prior to the May 11. was elected. 1998 election as to attain notoriety. notwithstanding which they still voted for him. as against the undisputed facts above enumerated. Capistrano Subdivision. to constitute a change of his domicile of birth in Tagoloan. 1998. Whether or not private respondent Emano's (a) remaining as governor of Misamis Oriental until he filed his certificate of candidacy for mayor of Cagayan de Oro City on March 25. his residence was declared to be in Tagoloan. It was his third consecutive term as governor of the province. the resolution of this issue would depend on the following: 1. as to disqualify him for being a candidate for city mayor of said City. Damasing. stating therein that his residence for the preceding two years and five months was at 1409 San Jose Street. (b) asserting under oath [that he was] qualified to act as governor of said province until said date. August 9. SO ORDERED." Allegedly. Costs against petitioners. in which they sought (1) the annulment of the election of private respondent. 1998 elections. whether or not Emano's securing a residence certificate in Cagayan de Oro City. Differently stated. and registering as a voter in said City in June 1997. he filed his Certificate of Candidacy for mayor of the city. it is obvious that the second one posited by petitioners has become academic and need not be ruled upon. Vicente Y. Torayno v COMELEC G. Misamis Oriental in favor of a new domicile of choice in Cagayan de Oro City for at least one (1) year for purposes of qualifying him to run for city mayor in the May 11. WHEREFORE. 1998 elections. Emano ran for. 07/19/2010 0 Comments Facts: During the 1995 elections. Cagayan de Oro City. 2000. and proclaimed provincial governor of Misamis Oriental. 1998 elections. Whether or not Erasmo Damasing." . 1998 in the May 11. In his Certificate of Candidacy dated March 12. 3. this time for quo warranto. Issue: In their Memorandum. and (c) admitting. Gusa. who had garnered the next highest number of votes. No. On March 25. as the duly elected mayor of the city. petitioners submit that the main issue is whether the "COMELEC gravely abused its discretion amounting to lack of jurisdiction in issuing the questioned Resolutions. would be legally sufficient. petitioners filed another Petition before the COMELEC. who received the second highest number of votes. 137329. 2.Corollary Issue: Effect of Disqualification of Winner on Second Placer With the resolution of the first issue in the positive. [that he was] a resident of Misamis Oriental. considering that respondent Emano was disqualified to run for and hold said office and considering that his disqualification or ineligibility had been extensively brought to the attention and consciousness of the voters prior to the May 11.

potentials for growth and development. A reading of the Rules shows that petitioners." Establishing residence in a community merely to meet an election law requirement defeats the purpose of representation: to elect through the assent of voters those most cognizant and sensitive to the needs of the community. an elective official's transfer of residence does not prevent the performance of that official's duties. in a house he had bought in 1973. This purpose is "best met by individuals who have either had actual residence in the area for a given period or who have been domiciled in the same area either by origin or by choice. any voter may file a petition to disqualify a candidate on grounds provided by law. In view of residence qualification for candidacy Private respondent contends further that his transfer of legal residence did not ipso facto divest him of his position as provincial governor. We stress that the residence requirement is rooted in the desire that officials of districts or localities be acquainted not only with the metes and bounds of their constituencies but. he continued to discharge his functions as such. with the constituents themselves — their needs. Under our election laws and the COMELEC Rules of Procedure. the Petition is DISMISSED and the assailed COMELEC Resolutions AFFIRMED. In view of locus standi of petitioners Under the Rules of Court. no one challenged his right to the Office of Provincial Governor when he transferred his residence to Cagayan de Oro City. until he filed his candidacy for mayor in March 1998. the loss of any of the required qualifications for election merely renders the official's title or right to office open to challenge. being "dulyregistered voters" of Cagayan de Oro City. Costs against petitioners. difficulties. Naturally. Furthermore. especially in private respondent's case in which the seat of government became his adopted place of residence. there is no law that prevents an elected official from transferring residence while in office. where the seat of the provincial government was located. he physically lived in that city. In view of law on qualifications of local elective officials Such provision is aimed at excluding outsiders "from taking advantage of favorable circumstances existing in that community for electoral gain." . Second. In Emano's case. are without legal standing to bring this suit. Cagayan de Oro City. The petitioners herein. Third.Held: WHEREFORE. and all matters vital to their common welfare. Ratio: In the case at bar. the COMELEC found that private respondent and his family had actually been residing in Capistrano Subdivision. Gusa. In June 1997 he also registered as voter of the same city. and likewise for the electorate to evaluate the former's qualifications and fitness for the offices they seek. during the three terms (1988-1998) that he was governor of Misamis Oriental. more important. aspirations. COMELEC. a quo warranto may be brought only by (1) the solicitor general or (2) a public prosecutor or (3) a person claiming to be entitled to the public office or position usurped or unlawfully held or exercised by another. therefore satisfy the requirement of said laws and rules. or to contest the election of a city officer on the ground of ineligibility or disloyalty to the Republic. as ruled in Frivaldo v. The requisite period would give candidates the opportunity to be familiar with their desired constituencies. First. none of whom qualify under any of the above three categories.

Rosalind Ybasco Lopez was born on May 16.: This is a petition for certiorari under Rule 65. 1934 in Napier Terrace. Thus. Camarines Norte. In 1949. dismissing the petition for disqualification filed by the herein petitioner. Rule 64 of the 1997 Rules of Civil Procedure. respectively. much less grave abuse. petitioner. Broome. respondents. an Australian. He won by a margin of about 30. it is obvious that the second one posited by petitioners has become academic and need not be ruled upon. pursuant to Section 2. in the May 1998 elections for governor of Davao Oriental. vs. COMMISSION ON ELECTIONS and ROSALIND YBASCO LOPEZ. and Theresa Marquez. a Filipino citizen and native of Daet. Valles. the petitioner must clearly demonstrate that the ineligibility is so patently antagonistic to constitutional and legal principles that overriding such ineligibility and thereby giving effect to the apparent will of the people would ultimately create greater prejudice to the very democratic institutions and juristic traditions that our Constitution and laws so zealously protect and promote . Western Australia. we hold that COMELEC cannot be faulted with abuse. of discretion in upholding private respondent's election.In view of interpretation to favor popular mandate There is no question that private respondent was the overwhelming choice of the people of Cagayan de Oro City. against private respondent Rosalind Ybasco Lopez. To successfully challenge a winning candidate's qualifications. VALLES. EN BANC [G. Cirilo R. we find it apt to reiterate the principle that the manifest will of the people as expressed through the ballot must be given fullest effect. 1998 and January 15. . With the resolution of the first issue in the positive.000 votes. she left Australia and came to settle in the Philippines. DECISION PURISIMA. 137000. Telesforo Ybasco. August 9. of the Commission on Elections in SPA No. 98336. to the spouses. 1999. 2000] CIRILO R. In sum. assailing Resolutions dated July 17. No. J.R. at the age of fifteen.

the Commission on Elections en banc dismissed the petition. docketed as EPC No. . prove her own citizenship and filiation by virtue of the Principle of Jus Sanguinis. Her opponent. Gil Taojo. the perorations of the petitioner to the contrary notwithstanding. 1998. In 1992. docketed as SPA No. at the Malate Catholic Church in Manila. and disposing as follows: “Assuming arguendo that res judicata does not apply and We are to dispose the instant case on the merits trying it de novo.. as well. a Filipino citizen. Her election was contested by her opponent. First Division. She served as Provincial Board Member of the Sangguniang Panlalawigan of Davao Oriental. The citizenship of private respondent was once again raised as an issue when she ran for re-election as governor of Davao Oriental in the May 11. 1952. filed a petition for disqualification. 95-066 before the COMELEC.. in a petition for quo warranto. Her candidacy was questioned by the herein petitioner. to prove that respondent contemplated renunciation of her Filipino citizenship”. no other evidence substantial in nature surfaced to confirm the allegations of petitioner that respondent is an Australian citizen and not a Filipino. in SPA No. she has continuously participated in the electoral process not only as a voter but as a candidate. she ran for and was elected governor of Davao Oriental. ratiocinating thus: “A cursory reading of the records of this case vis-a-vis the impugned resolution shows that respondent was able to produce documentary proofs of the Filipino citizenship of her late father. Jr.On June 27. nay meager.. the COMELEC’s First Division came out with a Resolution dismissing the petition. However. 63 is an equivocal and deliberate act with full awareness of its significance and consequence. 98-336. contesting her Filipino citizenship but the said petition was likewise dismissed by the COMELEC. respondent Rosalind Ybasco Lopez ran for reelection as governor of Davao Oriental. [1] 1 In the 1995 local elections. On the other hand. Francisco Rabat. Since then. except for the three (3) alleged important documents . . finding no sufficient proof that respondent had renounced her Philippine citizenship. The evidence adduced by petitioner are inadequate. Cirilo Valles. the above table definitely shows that petitioner herein has presented no new evidence to disturb the Resolution of this 1 . and consequently. Express renunciation of citizenship as a mode of losing citizenship under Commonwealth Act No. she was married to Leopoldo Lopez. reiterating substantially its decision in EPC 92-54. 92-54. alleging as ground therefor her alleged Australian citizenship. 1998 elections. On July 17.

.. 92-54.. placing reliance on the admitted facts that: a) In 1988.. 95-066. 2 ... 1999... on the other hand.xxx. The same was denied by the COMELEC in its en banc Resolution of January 15.... Undaunted..xxx “WHEREFORE. she renounced her Australian citizenship on January 15.... SO ORDERED. (2) she was married to a Filipino..Commission in SPA No. 95-066...... is a Filipino citizen.... there are the COMELEC Resolutions in EPC No. 1988..... 92-54 and SPA Case No...” [2] 2 Petitioner interposed a motion for reconsideration of the aforesaid Resolution but to no avail. xxx... and by virtue of the principle of jus sanguinis she was a Filipino citizen under the 1987 Philippine Constitution. maintains that the private respondent is an Australian citizen.... private respondent registered herself with the Bureau of Immigration as an Australian national and was issued Alien Certificate of Registration No. and (4) furthermore... Petitioner..... We find no convincing reason or impressive explanation to disturb and reverse the Resolutions promulgated by this Commission in EPC 9254 and SPA. premises considered and there being no new matters and issues tendered. the dismissal of the present petition follows as a matter of course. 404695 dated September 19. questioning the citizenship of private respondent Rosalind Ybasco Lopez... 95-066.. This Commission RESOLVES as it hereby RESOLVES to DISMISS the present petition...... qualified to run for a public office because (1) her father.... The Commission on Elections ruled that private respondent Rosalind Ybasco Lopez is a Filipino citizen and therefore....... 1992 before the Department of Immigration and Ethnic Affairs of Australia and her Australian passport was accordingly cancelled as certified to by the Australian Embassy in Manila..... Not having put forth any new evidence and matter substantial in nature. (3) and that. petitioner found his way to this Court via the present petition.... declaring her a Filipino citizen duly qualified to run for the elective position of Davao Oriental governor... Telesforo Ybasco. The present petition merely restates the same matters and incidents already passed upon by this Commission not just in 1995 Resolution but likewise in the Resolution of EPC No.... thereby making her also a Filipino citizen ipso jure under Section 4 of Commonwealth Act 473. persuasive in character or sufficiently provocative to compel reversal of such Resolutions.

a Filipino 3 . for the private respondent to reacquire Philippine citizenship she must comply with the mandatory requirements for repatriation under Republic Act 8171. Western Australia. Broome. as certified to by the Australian Embassy here in Manila. Commissioner of Immigration. and c) She was issued Australian Passport No. 1992. He contends that in her application for alien certificate of registration and immigrant certificate of residence. the private respondent had renounced her Filipino citizenship. 1934 in Napier Terrace. According to petitioner. 1988. The Philippine law on citizenship adheres to the principle of jus sanguinis. petitioner argues that the said acts did not automatically restore the status of private respondent as a Filipino citizen. Thereunder. Private respondent Rosalind Ybasco Lopez was born on May 16. private respondent has effectively become a stateless person and as such. is disqualified to run for a public office in the Philippines. to the spouses. As regards the COMELEC’s finding that private respondent had renounced her Australian citizenship on January 15. Petitioner theorizes that under the aforestated facts and circumstances. a child follows the nationality or citizenship of the parents regardless of the place of his/her birth. Telesforo Ybasco. and operated to disqualify her to run for elective office. H700888 on March 3. Petitioner theorizes further that the Commission on Elections erred in applying the principle of res judicata to the case under consideration. as opposed to the doctrine of jus soli which determines nationality or citizenship on the basis of place of birth.b) On even date. citing the ruling in Moy Ya Lim Yao vs. and said declaration forfeited her Philippine citizenship. xxx” The petition is unmeritorious. [3] that: 3 “xxx Everytime the citizenship of a person is material or indispensable in a judicial or administrative case. 1992 before the Department of Immigration and Ethnic Affairs of Australia and had her Australian passport cancelled on February 11. petitioner concluded. hence it has to be threshed out again and again as the occasion may demand. and the election of private respondent to public office did not mean the restoration of her Filipino citizenship since the private respondent was not legally repatriated. Coupled with her alleged renunciation of Australian citizenship. whatever the corresponding court or administrative authority decides therein as to such citizenship is generally not considered as res adjudicata. she applied for the issuance of an Immigrant Certificate of Residence (ICR). private respondent expressly declared under oath that she was a citizen or subject of Australia.

These were the Philippine Bill of July 1. The Philippine Bill of 1902 defined Philippine citizens as: SEC. Among others. Telesforo Ybasco. 4 xxx all inhabitants of the Philippine Islands continuing to reside therein who were Spanish subjects on the eleventh day of April. a fact duly evidenced by a certified true copy of an entry in the Registry of Births. Thus. this was a year before the 1935 Constitution took into effect and at that time. eighteen hundred and ninety-eight. an Australian. Camarines Norte. and such other persons residing in the Philippine Islands who are citizens of the United States. That the Philippine Legislature. these laws defined who were deemed to be citizens of the Philippine islands. eighteen hundred and ninety-eight. 1916. and except such others as have since become citizens of some other country: Provided. and then resided in the Philippine Islands. also known as the Jones Law. except such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace between the United States and Spain signed at Paris December tenth. and Theresa Marquez. 2 That all inhabitants of the Philippine Islands who were Spanish subjects on the eleventh day of April.citizen and native of Daet. what served as the Constitution of the Philippines were the principal organic acts by which the United States governed the country. eighteen hundred and ninety-nine. or who could become citizens of the United States under the laws of the United States if residing therein. and their children born subsequent thereto. Telesforo Ybasco was deemed to be a Philippine citizen. 1899 and resided therein including their children are deemed to be Philippine citizens. Private respondent’s father. 1902 and the Philippine Autonomy Act of August 29. provides: SEC. 1879 in Daet. and then resided in said Islands. shall be deemed and held to be citizens of the Philippine Islands. (underscoring ours) The Jones Law. all inhabitants of the Philippines who were Spanish subjects on April 11. signed at Paris December tenth. eighteen hundred and ninety-nine. By virtue of the same laws. herein provided for. except such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the provisions of the treaty of peace between the United States and Spain. was born on January 5. on the other hand. Historically. Camarines Norte. is hereby authorized to provide by law for the acquisition of Philippine citizenship by those natives of the Philippine Islands who cannot come within the foregoing provisions. under the Philippine Bill of 1902 and the Jones Law. shall be deemed and held to be citizens of the Philippine Islands and as such entitled to the protection of the United States. and their children born subsequent thereto. (underscoring ours) Under both organic acts. which were the laws in force at the . the natives of the insular possessions of the United States.

the principle of jus sanguinis. Thus. before the adoption of this Constitution had been elected to public office in the Philippine Islands. Telesforo’s daughter. is likewise a citizen of the Philippines. elect Philippine citizenship. is a Filipino citizen. the herein private respondent. So also. herein private respondent Rosalind Ybasco Lopez. (4) Those whose mothers are citizens of the Philippines and.time of her birth. having been born to a Filipino father. The fact of her being born in Australia is not tantamount to her losing her Philippine citizenship. (5) Those who are naturalized in accordance with law. to wit: (1) Those who are citizens of the Philippine Islands at the time of the adoption of this Constitution. upon reaching the age of majority. The signing into law of the 1935 Philippine Constitution has established the principle of jus sanguinis as basis for the acquisition of Philippine citizenship. If Australia 4 4 5 5 . which confers citizenship by virtue of blood relationship. Rosalind Ybasco Lopez. was subsequently retained under the 1973 [4] and 1987 [5] Constitutions. (3) Those whose fathers are citizens of the Philippines. (2) Those born in the Philippine Islands of foreign parents who.

follows the principle of jus soli, then at most, private respondent can also claim
Australian citizenship resulting to her possession of dual citizenship.
Petitioner also contends that even on the assumption that the private respondent
is a Filipino citizen, she has nonetheless renounced her Philippine citizenship.
To buttress this contention, petitioner cited private respondent’s application for an
Alien Certificate of Registration (ACR) and Immigrant Certificate of Residence
(ICR), on September 19, 1988, and the issuance to her of an Australian passport
on March 3, 1988.
Under Commonwealth Act No. 63, a Filipino citizen may lose his citizenship:
(1) By naturalization in a foreign country;
(2) By express renunciation of citizenship;
(3) By subscribing to an oath of allegiance to support the constitution or laws of a
foreign country upon attaining twenty-one years of age or more;
(4) By accepting commission in the military, naval or air service of a foreign
country;
(5) By cancellation of the certificate of naturalization;
(6) By having been declared by competent authority, a deserter of the Philippine
armed forces in time of war, unless subsequently, a plenary pardon or amnesty
has been granted: and
(7) In case of a woman, upon her marriage, to a foreigner if, by virtue of the laws
in force in her husband’s country, she acquires his nationality.
In order that citizenship may be lost by renunciation, such renunciation must be
express. Petitioner’s contention that the application of private respondent for an
alien certificate of registration, and her Australian passport, is bereft of merit.
This issue was put to rest in the case of Aznar vs. COMELEC [6] and in the more
recent case of Mercado vs. Manzano and COMELEC. [7]
6

7

In the case of Aznar, the Court ruled that the mere fact that respondent Osmena
was a holder of a certificate stating that he is an American did not mean that he
is no longer a Filipino, and that an application for an alien certificate of
registration was not tantamount to renunciation of his Philippine citizenship.
And, in Mercado vs. Manzano and COMELEC, it was held that the fact that
respondent Manzano was registered as an American citizen in the Bureau of
6
7

Immigration and Deportation and was holding an American passport on April 22,
1997, only a year before he filed a certificate of candidacy for vice-mayor of
Makati, were just assertions of his American nationality before the termination of
his American citizenship.

Thus, the mere fact that private respondent Rosalind Ybasco Lopez was a holder
of an Australian passport and had an alien certificate of registration are not acts
constituting an effective renunciation of citizenship and do not militate against her
claim of Filipino citizenship. For renunciation to effectively result in the loss of
citizenship, the same must be express. [8] As held by this court in the aforecited
case of Aznar, an application for an alien certificate of registration does not
amount to an express renunciation or repudiation of one’s citizenship. The
application of the herein private respondent for an alien certificate of registration,
and her holding of an Australian passport, as in the case of Mercado vs.
Manzano, were mere acts of assertion of her Australian citizenship before she
effectively renounced the same. Thus, at the most, private respondent had dual
citizenship - she was an Australian and a Filipino, as well.
8

Moreover, under Commonwealth Act 63, the fact that a child of Filipino parent/s
was born in another country has not been included as a ground for losing one’s
Philippine citizenship. Since private respondent did not lose or renounce her
Philippine citizenship, petitioner’s claim that respondent must go through the
process of repatriation does not hold water.
Petitioner also maintains that even on the assumption that the private respondent
had dual citizenship, still, she is disqualified to run for governor of Davao
Oriental; citing Section 40 of Republic Act 7160 otherwise known as the Local
Government Code of 1991, which states:
“SEC. 40. Disqualifications. The following persons are disqualified from running
for any elective local position:
xxx....................................xxx....................................xxx
(d) Those with dual citizenship;
xxx....................................xxx....................................xxx”
Again, petitioner’s contention is untenable.
In the aforecited case of Mercado vs. Manzano, the Court clarified “dual
citizenship” as used in the Local Government Code and reconciled the same with
Article IV, Section 5 of the 1987 Constitution on dual allegiance. [9] Recognizing
situations in which a Filipino citizen may, without performing any act, and as an
9

8
9

involuntary consequence of the conflicting laws of different countries, be also a
citizen of another state, the Court explained that dual citizenship as a
disqualification must refer to citizens with dual allegiance. The Court succinctly
pronounced:
“xxx the phrase ‘dual citizenship’ in R.A. No. 7160, xxx 40 (d) and in R.A. No.
7854, xxx 20 must be understood as referring to ‘dual allegiance’. Consequently,
persons with mere dual citizenship do not fall under this disqualification.”
Thus, the fact that the private respondent had dual citizenship did not
automatically disqualify her from running for a public office. Furthermore, it was
ruled that for candidates with dual citizenship, it is enough that they elect
Philippine citizenship upon the filing of their certificate of candidacy, to terminate
their status as persons with dual citizenship. [10] The filing of a certificate of
candidacy sufficed to renounce foreign citizenship, effectively removing any
disqualification as a dual citizen. [11] This is so because in the certificate of
candidacy, one declares that he/she is a Filipino citizen and that he/she will
support and defend the Constitution of the Philippines and will maintain true faith
and allegiance thereto. Such declaration, which is under oath, operates as an
effective renunciation of foreign citizenship. Therefore, when the herein private
respondent filed her certificate of candidacy in 1992, such fact alone terminated
her Australian citizenship.
10

11

Then, too, it is significant to note that on January 15 1992, private respondent
executed a Declaration of Renunciation of Australian Citizenship, duly registered
in the Department of Immigration and Ethnic Affairs of Australia on May 12, 1992.
And, as a result, on February 11, 1992, the Australian passport of private
respondent was cancelled, as certified to by Second Secretary Richard F. Munro
of the Embassy of Australia in Manila. As aptly appreciated by the COMELEC,
the aforesaid acts were enough to settle the issue of the alleged dual citizenship
of Rosalind Ybasco Lopez. Since her renunciation was effective, petitioner’s
claim that private respondent must go through the whole process of repatriation
holds no water.
Petitioner maintains further that when citizenship is raised as an issue in judicial
or administrative proceedings, the resolution or decision thereon is generally not
considered res judicata in any subsequent proceeding challenging the same;
citing the case of Moy Ya Lim Yao vs. Commissioner of Immigration. [12] He
insists that the same issue of citizenship may be threshed out anew.
12

Petitioner is correct insofar as the general rule is concerned, i.e. the principle of
res judicata generally does not apply in cases hinging on the issue of citizenship.
10
11
12

However, in the case of Burca vs. Republic, [13] an exception to this general rule
was recognized. The Court ruled in that case that in order that the doctrine of res
judicata may be applied in cases of citizenship, the following must be present:
13

1) a person’s citizenship be raised as a material issue in a controversy where
said person is a party;
2) the Solicitor General or his authorized representative took active part in the
resolution thereof, and
3) the finding on citizenship is affirmed by this Court.
Although the general rule was set forth in the case of Moy Ya Lim Yao, the case
did not foreclose the weight of prior rulings on citizenship. It elucidated that
reliance may somehow be placed on these antecedent official findings, though
not really binding, to make the effort easier or simpler. [14] Indeed, there appears
sufficient basis to rely on the prior rulings of the Commission on Elections in
SPA. No. 95-066 and EPC 92-54 which resolved the issue of citizenship in favor
of the herein private respondent. The evidence adduced by petitioner is
substantially the same evidence presented in these two prior cases. Petitioner
failed to show any new evidence or supervening event to warrant a reversal of
such prior resolutions. However, the procedural issue notwithstanding,
considered on the merits, the petition cannot prosper.
14

WHEREFORE, the petition is hereby DISMISSED and the COMELEC
Resolutions, dated July 17, 1998 and January 15, 1999, respectively, in SPA No.
98-336 AFFIRMED.
Private respondent Rosalind Ybasco Lopez is hereby adjudged qualified to run
for governor of Davao Oriental. No pronouncement as to costs.
SO ORDERED.

13
14

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xxG.R. No. 120905 March 7, 1996
RENATO U. REYES, petitioner,
vs.
COMMISSION ON ELECTIONS, and ROGELIO DE CASTRO, respondents.
G.R. No. 120940 March 7, 1996
JULIUS O. GARCIA, petitioner,
vs.
COMMISSION ON ELECTIONS, and RENATO U. REYES, respondents.

MENDOZA., J.:p
For resolution are special civil actions of certiorari. The petition in G.R. No. 120905 seeks to
annul the resolution dated May 9, 1995 of the Second Division of the Commission on
Elections, declaring petitioner Renato U. Reyes disqualified from running for local office and
cancelling his certificate of candidacy, and the resolution dated July 3, 1995 of the
Commission en banc, denying petitioner's motion for reconsideration. On the other hand, the
petition in G.R. No. 120940, filed by Julius O. Garcia, has for its purpose the annulment of the
aforesaid resolution of July 3, 1995 of the Commission en banc insofar as it denies his motion
to be proclaimed the elected mayor of Bongabong, Oriental Mindoro, in view of the
disqualification of Renato U. Reyes.
On August 1, 1995, the Court issued a temporary restraining order directing the Commission
on Elections en banc to cease and desist from implementing its resolution of July 3, 1995. It
also ordered the two cases to be consolidated, inasmuch as they involved the same
resolutions of the COMELEC.

The facts are as follows:
Petitioner Renato U. Reyes was the incumbent mayor of the municipality of Bongabong,
Oriental Mindoro, having been elected to that office on May 11, 1992. On October 26, 1994,
an administrative complaint was filed against him with the Sangguniang Panlalawigan by Dr.
Ernesto Manalo. It was alleged, among other things, that petitioner exacted and collected
P50,000,00 from each market stall holder in the Bongabong Public Market; that certain
checks issued to him by the National Reconciliation and Development Program of the
Department of Interior and Local Government were never received by the Municipal Treasurer
nor reflected in the books of accounts of the same officer; and that he took twenty-seven (27)
heads of cattle from beneficiaries of a cattle dispersal program after the latter had reared and
fattened the cattle for seven months.
In its decision, dated February 6, 1995, the Sangguniang Panlalawigan found petitioner guilty
of the charges and ordered his removal from office.
It appears that earlier, after learning that the Sanggunian had terminated the proceedings in
the case and was about to render judgment, petitioner filed a petition for certiorari, prohibition
and injunction with the Regional Trial Court of Oriental Mindoro, Branch 42, alleging that the
proceedings had been terminated without giving him a chance to be heard. A temporary
restraining order was issued by the court on February 7, 1995, enjoining the Sangguniang
Panlalawigan from proceeding with the case. As a result, the decision of the Sangguniang
Panlalawigan could not be served upon Reyes. But on March 3, 1995, following the expiration
of the temporary restraining order and without any injunction being issued by the Regional
Trial Court, an attempt was made to serve the decision upon petitioner's counsel in Manila.
However, the latter refused to accept the decision. Subsequent attempts to serve the decision
upon petitioner himself also failed, as he also refused to accept the decision.
On March 23, 1995, the Presiding Officer of the Sangguniang Panlalawigan, Vice Governor
Pedrito A. Reyes, issued an order for petitioner to vacate the position of mayor and peacefully
turn over the office to the incumbent vice mayor. But service of the order upon petitioner was
also refused.
Meanwhile, on March 20, 1995, petitioner filed a certificate of candidacy with the Office of the
Election Officer of the COMELEC in Bongabong.
On March 24, 1995, private respondent Rogelio de Castro, as registered voter of Bongabong,
sought the disqualification of petitioner as candidate for mayor, citing the Local Government
Code of 1991 (R.A. No .7160) which states:
§40. Disqualification. — The following persons are disqualified from running for any elective
local position:
....
(b) Those removed from office as a result of an administrative case.

Nonetheless, because of the absence of any contrary order from the COMELEC, petitioner
Reyes was voted for in the elections held on May 8, 1995.
On May 9, 1995, the COMELEC's Second Division issued the questioned resolution, the
dispositive portion of which reads as follows:
WHEREFORE, respondent having been removed from office by virtue of Administrative Case
006-94, he is hereby DISQUALIFIED from running for public office, in conformity with Section
40, paragraph (b) of the 1991 Local Government Code. The respondent's Certificate of
Candidacy is CANCELLED in conformity with this resolution. The Election Officer of Bongabong,
Oriental Mindoro is ordered to amend the official list of candidates in Bongabong to reflect the
respondent's disqualification and to IMMEDIATELY circulate the amendment to the different
Boards of Election Inspectors in Bongabong upon the receipt of this decision.

On May 10, 1995, the Municipal Board of Canvassers of Bongabong, apparently unaware of
the disqualification of Reyes by the COMELEC, proclaimed him the duly-elected mayor.
On July 3, 1995, petitioner filed a motion for reconsideration of the resolution of the
COMELEC's Second Division, but his motion was denied. The COMELEC en banc declared
him to have been validly disqualified as candidate and, consequently, set aside his
proclamation as municipal mayor of Bongabong. Hence the petition in G.R. No. 120905,
which was filed on July 20, 1995, alleging grave abuse of discretion by the COMELEC on the
ground that the decision in the administrative case against petitioner Reyes was not yet final
and executory and therefore could not be used as basis for his disqualification. It is contended
that the charges against him were rendered moot and academic by the expiration of the term
during which the acts complained of had allegedly been committed. Invoking the ruling in the
case of Aguinaldo v. Santos, 1 petitioner argues that his election on May 8, 1995 is a bar to his
disqualification.
On the other hand, it appears that petitioner Julius M. Garcia, who obtained the second
highest number of votes next to petitioner Reyes in the same elections of May 8, 1995,
intervened in the COMELEC on June 13, 1995 (after the main decision disqualifying Renato
Reyes was promulgated), contending that because Reyes was disqualified, he (Garcia) was
entitled to be proclaimed mayor of Bongabong, Oriental Mindoro.
In its resolution of July 3, 1995, the COMELEC en banc denied Garcia's prayer, citing the
ruling in Republic v. De la Rosa 2 that a candidate who obtains the second highest number of
votes in an election cannot be declared winner. Hence the petition in G.R. No. 120940.
Petitioner contends that (1) the COMELEC en banc should have decided his petition at least
15 days before the May 8, 1995 elections as provided in 78 of the Omnibus Elections Code,
and that because it failed to do so, many votes were invalidated which could have been for
him had the voters been told earlier who were qualified to be candidates; (2) that the decision
of the Sangguniang Panlalawigan was final and executory and resulted in the automatic
disqualification of petitioner, and the COMELEC did not need much time to decide the case
for disqualification against Reyes since the latter did not appeal the decision in the
administrative case ordering his removal; (3) that the COMELEC should have considered the
votes cast for Reyes as stray votes.

After deliberating on the petitions filed in these cases, the Court resolved to dismiss them for
lack of showing that the COMELEC committed grave abuse of discretion in issuing the
resolutions in question.
G.R. No. 120905
First. Petitioner Reyes claims that the decision of the Sangguniang Panlalawigan, ordering
him removed from office, is not yet final because he has not been served a copy thereof.
It appears, however, that the failure of the Sangguniang Panlalawigan to deliver a copy of its
decision was due to the refusal of petitioner and his counsel to receive the decision. As the
secretary to the Sangguniang Panlalawigan, Mario Manzo, stated in his certification, repeated
attempts had been made to serve the decision on Reyes personally and by registered mail,
but Reyes refused to receive the decision. Manzo's certification states:
On March 3, 1995, Mr. Marcelino B. Macatangay went to Manila to furnish a copy of the decision
to the Counsel for Respondent, Atty. Rogelio V. Garcia, which said counsel refused to accept.
On March 23, 1995, Mr. Mario I. C. Manzo, Secretary to the Sangguniang Panlalawigan with Mr.
Marcelino B. Macatangay again went to the office of the Mayor of Bongabong to serve the
decision. Mayor Renato U. Reyes, himself present, refused to accept the ORDER enforcing the
decision citing particularly the pending case filed in the Sala of Judge Manuel A. Roman as the
basis of his refusal.
On [sic] 4:40 p.m., of the same date, the Secretary to the Sangguniang Panlalawigan, unable to
serve the ORDER, mailed the same (registered mail receipt No. 432) on the Bongabong Post
Office to forward the ORDER to the Office of Mayor Renato U. Reyes.
On March 28, 1995 said registered mail was returned to the Sangguniang Panlalawigan with the
following inscriptions on the back by the Postmaster:
1) 1st attempt — addressee out of town — 9:15 a.m., 3-23-95
2) 2nd attempt — addressee cannot be contacted, out of town, 8:50 a.m., 3-24-95.
3) 3rd attempt — addressee not contacted — out of town 8:15 a.m., 3-24-95.
4) 4th attempt — addressee refused to accept 8:15 a.m., 3-27-95.
On March 24, 1995, Mr. Marcelino B. Macatangay, again went to Bongabong to serve the same
ORDER enforcing the decision. Mayor Renato U. Reyes was not present so the copy was left on
the Mayor's Office with comments from the employees that they would not accept the same. 3

Rule 13, §§ 3 and 7 of the Rules of Court provide for the service of final orders and judgments
either personally or by mail. Personal service is completed upon actual or constructive
delivery, which may be made by delivering a copy personally to the party or his attorney, or by
leaving it in his office with a person having charge thereof, or at his residence, if his office is
not known. 4 Hence service was completed when the decision was served upon petitioner's
counsel in his office in Manila on March 3, 1995. In addition, as the secretary of the
Sangguniang Panlalawigan certified, service by registered mail was also made on petitioner
Reyes. Although the mail containing the decision was not claimed by him, service was

deemed completed five days after the last notice to him on March 27, 1995. 5
If a judgment or decision is not delivered to a party for reasons attributable to him, service is
deemed completed and the judgment or decision will be considered validly served as long as
it can be shown that the attempt to deliver it to him would be valid were it not for his or his
counsel's refusal to receive it.
Indeed that petitioner's counsel knew that a decision in the administrative case had been
rendered is evident in his effort to bargain with the counsel for the Sangguniang Panlalawigan
not to have the decision served upon him and his client while their petition for certiorari in the
Regional Trial Court was
pending. 6 His refusal to receive the decision may, therefore, be construed as a waiver on his
part to have a copy of the decision.
The purpose of the rules on service is to make sure that the party being served with the
pleading, order or judgment is duly informed of the same so that he can take steps to protect
his interests, enable a party to file an appeal or apply for other appropriate reliefs before the
decision becomes final.
In practice, service means the delivery or communication of a pleading, notice or other papers in
a case to the opposite party so as to charge him with receipt of it, and subject him to its legal
effect. 7

In the case at bar, petitioner was given sufficient notice of the decision. Prudence required
that, rather than resist the service, he should have received the decision and taken an appeal
to the Office of the President in accordance with R.A. No. 7160, § 67. 8 But petitioner did not
do so. Accordingly, the decision became final on April 2, 1995, 30 days after the first service
upon petitioner.
The net result is that when the elections were held on May 8, 1995, the decision of the
Sangguniang Panlalawigan had already become final and executory. The filing of a petition
for certiorari with the Regional Trial Court did not prevent the administrative decision from
attaining finality. An original action of certiorari is an independent action and does not interrupt
the course of the principal action nor the running of the reglementary period involved in the
proceeding. 9
Consequently, to arrest the course of the principal action during the pendency of the certiorari
proceedings, there must be a restraining order or a writ of preliminary injunction from the
appellate court directed to the lower court. 10

In the case at bar, although a temporary restraining order was issued by the Regional Trial
Court, no preliminary injunction was subsequently issued. The temporary restraining order
issued expired after 20 days. From that moment on, there was no more legal barrier to the
service of the decision upon petitioner.
Petitioner claims that the decision cannot be served upon him because at the hearing held on
February 15, 1995 of the case which he filed in the RTC, the counsel of the Sangguniang
Panlalawigan, Atty. Nestor Atienza, agreed not to effect service of the decision of the
Sangguniang Panlalawigan pending final resolution of the petition for certiorari.

The alleged agreement between the counsels of Reyes and the Sangguniang Panlalawigan
cannot bind the Sangguniang Panlalawigan. It was illegal . And it would have been no less
illegal for the Sangguniang Panlalawigan to have carried it out because R.A. No. 7160, § 66
(a) makes it mandatory that "[c]opies of the decision [of the Sangguniang Panlalawigan] shall
immediately be furnished to respondent and/or interested parties." It was the Sangguniang
Panlalawigan's duty to serve it upon the parties without unnecessary delay. To have delayed
the service of the decision would have resulted in the Sangguniang Panlalawigan's failure to
perform a legal duty. It, therefore, properly acted in having its decision served upon petitioner
Reyes.
Second. The next question is whether there election of petitioner rendered the administrative
charges against him moot and academic. Petitioner invokes the ruling in Aguinaldo v.
COMELEC, 11 in which it was held that a public official could not be removed for misconduct
committed during a prior term and that his reelection operated as a condonation of the
officer's previous misconduct to the extent of cutting off the right to remove him therefor. But
that was because in that case, before the petition questioning the validity of the administrative
decision removing petitioner could be decided, the term of office during which the alleged
misconduct was committed expired. 12 Removal cannot extend beyond the term during which
the alleged misconduct was committed. If a public official is not removed before his term of
office expires, he can no longer be removed if he is thereafter reelected for another term. This
is the rationale for the ruling in the two Aguinaldo cases.
The case at bar is the very opposite of those cases. Here, although petitioner Reyes brought
an action to question the decision in the administrative case, the temporary restraining order
issued in the action he brought lapsed, with the result that the decision was served on
petitioner and it thereafter became final on April 3, 1995, because petitioner failed to appeal to
the Office of the President. He was thus validly removed from office and, pursuant to § 40(b)
of the Local Government Code, he was disqualified from running for reelection.
It is noteworthy that at the time the Aguinaldo cases were decided there was no provision
similar to § 40(b) which disqualifies any person from running for any elective position on the
ground that he has been removed as a result of an administrative case. The Local
Government Code of 1991 (R.A. No. 7160) could not be given retroactive effect. Said the
Court in the first Aguinaldo
case: 13
The COMELEC applied Section 40(b) of the Local Government Code Republic Act 7160) which
provides:
Sec. 40. The following persons are disqualified from running for any elective local position:
.....
(b) Those removed from office as a result of an administrative case.
Republic Act 7160 took effect only on January 1, 1992. . . . There is no provision in the statute
which would clearly indicate that the same operates retroactively.

It, therefore, follows that 40(b) of the Local Government Code is not applicable to the present
case.
Furthermore, the decision has not yet attained finality. As indicated earlier, the decision of the
then Secretary of Local Government was questioned by the petitioner in this Court and that to
date, the petition remains unresolved.

At any rate, petitioner's claim that he was not given time to present his evidence in the
administrative case has no basis, as the following portion of the decision of the Sangguniang
Panlalawigan makes clear:
On November 28, 1994 the Sanggunian received from respondent's counsel a motion for
extension of time to file a verified answer within 15 days from November 23, 1994. In the interest
of justice another fifteen (15) day period was granted the respondent.
On December 5, 1994 which is the last day for filing his answer, respondent instead filed a
motion to dismiss and set the same for hearing on December 22, 1994.
....
On January 4, 1995, the motion to dismiss was denied for lack of merit and the order of denial
was received by respondent on January 7, 1995. Considering the fact that the last day within
which to file his answer fell on December 5, 1994, respondent is obliged to file the verified
answer on January 7, 1995 when he received the order denying his motion to dismiss.
In the hearing of the instant case on January 26, 1995, the counsel for the complainant
manifested that he be allowed to present his evidence for failure of the respondent to file his
answer albeit the lapse of 19 days from January 7, 1995.
The manifestation of complainant's counsel was granted over the objection of the respondent,
and the Sanggunian in open session, in the presence of the counsel for the respondent, issued
an order dated January 26, 1995 quoted as follows:
"As shown from the record of this case, Mayor Renato U. Reyes of Bongabong
failed to file his answer within the time prescribed by law, after the motion to
dismiss was denied by this Sanggunian. The Sanggunian declares that
respondent Mayor Renato U. Reyes failed to file his answer to the complaint
filed against him within the reglementary period of fifteen (15) days. Counsel for
respondent requested for reconsideration twice, which oral motions for
reconsideration were denied for lack of merit.
Art. 126 (a) (1) provides that failure of respondent to file his verified answer
within fifteen (15) days from receipt of the complaint shall be considered a
waiver of his rights to present evidence in his behalf.
It is important to note that this case should be heard in accordance with what is
provided for in the constitution that all parties are entitled to speedy disposition
of their cases. It is pivotal to state that the Sanggunian Panlalawigan will lose its
authority to investigate this case come February 8, 1995 and therefore, in the
interest of justice and truth the Sanggunian must exercise that authority by
pursuing the hearing of this case.
Accordingly, the counsel for complainant Dr. Ernesto L. Manalo, et al., will
present his evidence on February 2, 3, and 6, 1995, and the counsel for

Indeed. 1495) dated January 27. He could not be considered the first among qualified candidates because in a field which excludes the disqualified candidate. All persons shall have the right to a speedy disposition of their cases before all judicial. quasijudicial. this Court said: To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voter. But on the date set. the respondent through counsel despite due notice in open session. Failure of the respondent to file his verified answer within fifteen (15) days from receipt of the complaint shall be considered a waiver of his rights to present evidence in his behalf ((1). Indeed. 1995. He would say later that this was because he had filed a motion for postponement and was awaiting a ruling thereon. This only betrays the pattern of delay he employed to render the case against him moot by his election. he resorted to dilatory motions which in the end proved fatal to his cause. We are not prepared to extrapolate the results under the circumstances. a second placer." .. . No.R. That the candidate who obtains the second highest number of votes may not be proclaimed winner in case the winning candidate is disqualified is now settled. Veritably. All in all. and by registered mail (registry receipt no. or administrative bodies (Sec. he neither filed nor furnished the complainant a copy of his answer. 1995. In the latest ruling 16 on the question. Art. such in action is a waiver of the respondent to whatever rights he may have under our laws. On February 2. it appears that petitioner was given sufficient opportunity to file his answer. He failed to do so. void. or meaningless. He was repudiated by either a majority or plurality of voters. No telegram was received by this body to the effect that he will appear on any of the dates stated in the Order of January 26. The second placer is just that. he failed to appear. Nonetheless. herein respondent Mayor Reyes was given by this Sanggunian a period of sixty one (61) days to file his verified answer however.respondent will be given a chance to cross-examine the witnesses that may be presented thereat. 16. 1995.. G. Garcia's petition to be proclaimed mayor in view of the disqualification of Renato U. Garcia's plea that the votes cast for Reyes be invalidated is without merit. 17 The subsequent finding that he is disqualified cannot retroact to the date of the elections so as to invalidate the votes cast for him. failed to appear. he was told that the complainant would be presenting his evidence and that he (petitioner) would then have the opportunity to cross-examine the witnesses. 120940 We likewise find no grave abuse of discretion on the part of the COMELEC in denying petitioner Julius O. 14 The doctrinal instability caused by see-sawing rulings 15 has since been removed. Reyes. He lost the elections. 126 of Rules and Regulations implementing the Local Government Code of 1991).. The votes cast for Reyes are presumed to have been cast in the belief that Reyes was qualified and for that reason can not be treated as stray. the conditions would have substantially changed. III of the Constitution). Art.

RESOLUTION FRANCISCO. suffice it to say that under R. the petition in G.[1] The first assailed resolution dated May 6. Dela Torre via the instant petition for certiorari seeks the nullification of two resolutions issued by the Commission on Elections (COMELEC) allegedly with grave abuse of discretion amounting to lack of jurisdiction in SPA No. WHEREFORE.R. we find no merit in the argument that the COMELEC should have seen right away that Reyes had not exhausted administrative remedies by appealing the decision of the Sangguniang Panlalawigan and. SO ORDERED. DELA TORRE.R. respondents. 95-047. 120905 and G. 40. should have disqualified him before the elections.As for Garcia's contention that the COMELEC committed a grave abuse of discretion in not deciding the case before the date of the election.1995 elections. 1996] ROLANDO P.A. xxi xxii xxiii xxiv xxv xxvi xxviiEN BANC [G.1995 declared the petitioner disqualified from running for the position of Mayor of Cavinti. citing as the ground therefor. Disqualifications. 120940 are DISMISSED for lack of merit. petitioner. the COMELEC can continue proceedings for disqualification against a candidate even after the election and order the suspension of his proclamation whenever the evidence of his guilt is strong.: Petitioner Rolando P. For the same reason. Laguna in the last May 8. therefore. COMMISSION ON ELECTIONS and MARCIAL VILLANUEVA.R. No. July 5. 121592. 7160 (the Local Government Code of 1991)[2] which provides as follows: “Sec. The following persons are disqualified from running for any elective local position: . J. 6646. a case for disqualification filed against petitioner before the COMELEC. No. § 6. vs. Section 40(a) of Republic Act No. No.

In said motion..“(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment within two (2) years after serving sentence. Flores. honesty. e. “x x x x x x xxx “x x x.i. vileness.1612’ x x x. the nature of the offense under P. Particularly involved in the first issue is the first of two instances contemplated in Section 40 (a) when prior conviction of a crime becomes a ground for disqualification . petitioner claimed that Section 40 (a) of the Local Government Code does not apply to his case inasmuch as the probation granted him by the MTC on December 21. Whether or not a grant of probation affects Section 40 (a)’s applicability. the Court is guided by one of the general rules that crimes mala in se involve moral turpitude. (otherwise known as the Anti-fencing Law) in a Decision dated June 1. x x x in Criminal Case No.” And in this connection. contrary to the accepted and customary rule of right and duty between man and woman or conduct contrary to justice. 1995. or to society in general.”[8] to wit: . It is for this reason that “as to what crime involves moral turpitude. Although there is ‘dearth of jurisprudence involving violation of the AntiFencing Law of 1979 or P.” In disqualifying the petitioner. Respondent appealed the said conviction with the Regional Trial Court x x x. 1612 with which respondent was convicted certainly involves moral turpitude x x x. 1612.1990. 14723 for violation of P. is for the Supreme Court to determine”. Laguna this coming elections. dated August 28. however. Whether or not the crime of fencing involves moral turpitude. or good morals.[6] In resolving the foregoing question.”[5] Not every criminal act. “when the conviction by final judgment is for an offense involving moral turpitude. affirmed respondent’s conviction in a Decision dated November 14. involves moral turpitude. while crimes mala prohibita do not[7]. modesty. or depravity in the private duties which a man owes his fellowmen. Respondent’s conviction became final on January 18. “(b) x x x xxx x x x. the rationale of which was set forth in “Zari v. 1994 which suspended the execution of the judgment of conviction and all other legal consequences flowing therefrom.”[3] The second assailed resolution.1990.1991.D. 2.D.[4] The two (2) issues to be resolved are: 1. which however.D. denied petitioner’s motion for reconsideration. the Court has consistently adopted the definition in Black’s Law Dictionary of “moral turpitude” as: “x x x an act of baseness. there exists legal grounds to disqualify respondent as candidate for Mayor of Cavinti. the COMELEC held that: “Documentary evidence x x x established that herein respondent (petitioner in this case) was found guilty by the Municipal Trial Court. rendered inapplicable Section 40 (a) as well.

”[9] This guideline nonetheless proved short of providing a clear-cut solution. honesty x x x or good morals. are crimes of moral turpitude. Petitioner has in effect admitted all the elements of the crime of fencing. the determination of whether or not fencing involves moral turpitude can likewise be achieved by analyzing the elements alone. object or anything of value has been derived from the proceeds of the crime of robbery or theft. acquires. and not its prohibition by statute fixes the moral turpitude. however. whether or not a crime involves moral turpitude is ultimately a question of fact and frequently depends on all the circumstances surrounding the violation of the statute. which have been derived from the proceeds of the said crime. The accused knows or should have known that the said article. include such acts as are not of themselves immoral but whose illegality lies in their being positively prohibited.”[12] From the foregoing definition may be gleaned the elements of the crime of fencing which are: "1. conceal. or in any manner deal in any article. keeps. both the “fence” and the actual perpetrator/s of the robbery or theft invaded one’s peaceful dominion for gain . “3. object or anything of value which he knows. There are crimes which are mala in se and yet but rarely involve moral turpitude and there are crimes which involve moral turpitude and are mala prohibita only.“It (moral turpitude) implies something immoral in itself. by their very nature. with intent to gain for himself or for another. In the final analysis. sells or disposes. At any rate. The doing of the act itself. object or anything of value. There is. or in any manner deals in any article.] “4. NLRC. Actual knowledge by the “fence” of the fact that property received is stolen displays the same degree of malicious deprivation of one’s rightful property as that which animated the robbery or theft which. or should be known to him. Fencing is defined in Section 2 of P. intent to gain for himself or for another. It must not be merely mala prohibita. x x x the act of any person who. A crime of robbery or theft has been committed. The accused who is not a principal or accomplice in the crime of robbery or theft. item. inasmuch as petitioner after all does not assail his conviction. conceals. “2. acquire. justice. Moral turpitude does not. anything . or buys and sells. And although the participation of each felon in the unlawful taking differs in point in time and in degree.”[13] Moral turpitude is deducible from the third element. or to return. item. and [Underscoring supplied. receive. possesses. possess.[11] The Court in this case shall nonetheless dispense with a review of the facts and circumstances surrounding the commission of the crime. shall buy.D. or shall buy and sell. on the part of the accused.[10] the Court admitted that it cannot always be ascertained whether moral turpitude does or does not exist by merely classifying a crime as malum in se or as malum prohibitum. for in “International Rice Research Institute v. keep. to have been derived from the proceeds of the crime of robbery or theft.thus deliberately reneging in the process “private duties” they owe their “fellowmen” or “society” in a manner “contrary to x x x accepted and customary rule of right and duty x x x. item. sell or dispose of. buys. but the act itself must be inherently immoral.” The duty not to appropriate. receives. regardless of the fact that it is punishable by law or not.1612 (Anti-Fencing Law) as: “a.

suffice it to say that the legal effect of probation is only to suspend the execution of the sentence.[16] Petitioner’s conviction of fencing which we have heretofore declared as a crime of moral turpitude and thus falling squarely under the disqualification found in Section 40 (a). “reasonable for no other natural or logical inference can arise from the established fact of x x x possession of the proceeds of the crime of robbery or theft. Such circumstances include the time and place of the sale. On the other hand. the words ‘should know’ denote the fact that a person of reasonable prudence and intelligence would ascertain the fact in the performance of his duty to another or would govern his conduct upon assumption that such fact exists. shall indemnify the latter for the same.acquired either by mistake or with malice is so basic it finds expression in some key provisions of the Civil Code on “Human Relations” and “Solutio Indebiti. give everyone his due. shall return the same to him. acquires or comes into possession of something at the expense of the latter without just or legal ground. object or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing”. circumstances normally exist to forewarn. act with justice. a judgment of conviction in a criminal case ipso facto attains finality when the accused applies for probation. good customs or public policy shall compensate the latter for the damage. contrary to law. subsists and remains totally unaffected notwithstanding the grant of probation. according to the Court.” to wit: “Article 19. 1612 that “mere possession of any goods. x x x. or any other means. both of which may not be in accord with the usual practices of commerce.”[15] All told. and it was unduly delivered through mistake. the COMELEC did not err in disqualifying the petitioner on the ground that the offense of fencing of which he had been previously convicted by final judgment was one involving moral turpitude. the Court held: “When knowledge of the existence of a particular fact is an element of the offense. the obligation to return it arises. such knowledge is established if a person is aware of the high probability of its existence unless he actually believes that it does not exist.”[14] [Italics supplied. for instance. a reasonably vigilant buyer that the object of the sale may have been derived from the proceeds of robbery or theft.] Verily.a presumption that is.” “Article 20. although it is not executory pending resolution of the application for . Anent the second issue where petitioner contends that his probation had the effect of suspending the applicability of Section 40 (a) of the Local Government Code. and therefore should caution the buyer. but merely “should have known” the origin of the property received. In this regard. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals.” The same underlying reason holds even if the “fence” did not have actual knowledge. and the fact that the seller is not regularly engaged in the business of selling goods may likewise suggest the illegality of their source.D.” “Article 21. and observe honesty and good faith. If something is received when there is no right to demand it. No. In fact.” “Article 22. Every person must. wilfully or negligently causes damage to another. Every person who. in the exercise of his rights and in the performance of his duties. Every person who through an act of performance by another. This justifies the presumption found in Section 5 of P. The nature and condition of the goods sold.” “Article 2154.

Dela Torre seeks the nullification of two resolutions issued by COMELEC allegedly with grave abuse of discretion amounting to lack of jurisdiction in a case for disqualification filed against him. The second resolution dated August 28. ACCORDINGLY. Whether or not a grant of probation affects Section 40 (a)'s applicability? HELD: . 1995 declared the Dela Torre disqualified from running for the position of Mayor of Cavinti.probation.D. ISSUES: 1. affirmed MTC’s decision. Dele Torre claimed that Section 40 (a) of the LGC does not apply to his case because MTC granted his probation petition which suspended the execution of the judgment of conviction and all other legal consequences flowing there from. SO ORDERED. 1995. 1612 (Anti-fencing Law) in June 1. Whether or not the crime of fencing involves moral turpitude? 2. denied Dela Torre’s MR. COMELEC held that by established evidence Dela Torre was found guilty by the MTC for violation of P. xxviii xxix xxx xxxi xxxii xxxiii xxxiv xxxv xxxvi xxxvii xxxviii xxxix xl xliFACTS: Rolando P. 1991. petitioner’s theory has no merit. Dela Torre appealed the said conviction with the RTC which however.1995 and August 28. the instant petition for certiorari is hereby DISMISSED and the assailed resolutions of the COMELEC dated May 6.[17] Clearly then. Laguna for the reason that under Section 40(a) of the LGC a person who has been sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment within two (2) years after serving sentence are disqualified to run for any elective position. The first resolution dated May 6. In said motion.1995 are AFFIRMED in toto. Said conviction became final on January 18. 1990.

possess. Moral turpitude is deducible from the third element. receive. by their very nature. or to return. item. subsists and remains totally unaffected notwithstanding the grant of probation. However the guidelines set forth proved short of providing a clear-cut solutionin another case where they said that there are crimes which are mala in se and yet but rarely involve moral turpitude and there are crimes which involve moral turpitude and are mala prohibita only. 1995 are AFFIRMED in toto. object or anything of value which he knows. anything acquired either by mistake or with malice is so basic it finds expression in some key provisions of the Civil Code on "Human Relations" and "Solutio Indebiti All told. No. November 12. In fact. Case DIMISSED and the assailed resolutions of the COMELEC dated May 6.R. with intent to gain for himself or for another. the rationale of which was set forth in the case of Zari v. while crimes mala prohibita do not. or in any manner deal in any article. acquire. 154512. the COMELEC did not err in disqualifying the petitioner on the ground that the offense of fencing of which he had been previously convicted by final judgment was one involving moral turpitude. It is then ultimately a question of fact and frequently depends on all the circumstances surrounding the violation of the statue. involves moral turpitude. or shall buy and sell. Flores. to have been derived from the proceeds of the crime of robbery or theft. Actual knowledge by the "fence" of the fact that property received is stolen displays the same degree of malicious deprivation of one's rightful property as that which animated the robbery or theft which. shall buy. Crime of Fencing involves moral turpitude? Not every criminal act. The Court is guided by one of the general rules that crimes mala in se involve moral turpitude. The duty not to appropriate. Grant of Probation affects Section 40(a) of LGC Dela Torre’s conviction of fencing which we have declared as a crime of moral turpitude and thus falling squarely under the disqualification found in Section 40 (a). a judgment of conviction in a criminal case ipso facto attains finality when the accused applies for probation.D. although it is not executory pending resolution of the application for probation. 1995 and August 28. xlii xliiiEN BANC [G. II. sell or dispose of. are crimes of moral turpitude. Fencing is defined in Section 2 of P. keep. 2002] .I. or should be known to him. conceal. 1612 the act of any person who.

to nullify and deny due course to the Recall Resolution. FLORES P. to 12:00 noon. The . On the same date. The PRA was convened to initiate the recall[2] of Victorino Dennis M. 2002.R. HAGEDORN. PRA Interim Secretary Punong Bgy. THE COMMISSION ON ELECTIONS. Socrates filed with the COMELEC a petition. No.: The Case Before us are consolidated petitions for certiorari[1] seeking the reversal of the resolutions issued by the Commission on Elections (“COMELEC” for brevity) in relation to the recall election for mayor of Puerto Princesa City. petitioners. The Antecedents On July 2. vs. 2002] VICENTE S. BENJAMIN JARILLA. Hagedorn. vs. vs. THE PREPARATORY RECALL ASSEMBLY (PRA) of Puerto Princesa City. 155083-84. PRA Interim Chairman Punong Bgy. CARLOS ABALLA. JR. THE COMMISSION ON ELECTIONS. No. and EDWARD S. On August 21.. 01-02 (“Recall Resolution” for brevity) which declared its loss of confidence in Socrates and called for his recall. J. The PRA requested the COMELEC to schedule the recall election for mayor within 30 days from receipt of the Recall Resolution. petitioner. 2002. GILO and BIENVENIDO OLLAVE. respondent. 312 out of 528 members of the then incumbent barangay officials of the Puerto Princesa convened themselves into a Preparatory Recall Assembly (“PRA” for brevity) at the Gymnasium of Barangay San Jose from 9:00 a. the COMELEC en banc promulgated Resolution No. PRA Chairman and Presiding Officer Punong Bgy. ADOVO. The members of the PRA designated Mark David M. as interim chair of the PRA. MARK DAVID HAGEDORN. docketed as E. On July 16. November 12. On August 14.R. Socrates (“Socrates” for brevity) who assumed office as Puerto Princesa’s mayor on June 30. 2002. JR. EARL S. president of the Association of Barangay Captains. MERCY E. respondents.M. 5673 prescribing the calendar of activities and periods of certain prohibited acts in connection with the recall election.. [G. the COMELEC en banc[3] promulgated a resolution dismissing for lack of merit Socrates’ petition. 2002. 02-010 (RC). respondents. SOCRATES. November 12. the PRA passed Resolution No.m. THE COMMISSION ON ELECTIONS. Nos. 2002. petitioner. SANDOVAL. [G. DECISION CARPIO. Palawan.VICTORINO DENNIS M. Mayor of Puerto Princesa City. BUENVIAJE and PRA Secretary Punong Bgy. 154683. 2001. 2002] MA. The COMELEC gave due course to the Recall Resolution and scheduled the recall election on September 7. SR.

Socrates alleges that the COMELEC gravely abused its discretion in upholding the Recall Resolution. giving the candidates only a ten-day campaign period. G. Edward M. the COMELEC en banc promulgated a resolution denying the motion for reconsideration of Adovo and Gilo. 2002. He prayed that the COMELEC be enjoined from holding the recall election on . 02-492 and 02-539 were consolidated. a certain Genaro V. On the same date.COMELEC fixed the campaign period from August 27. 2002 to September 5. and (5) the PRA proceedings were conducted in a manner that violated his and the public’s constitutional right to information. On August 23. The COMELEC also reset the recall election from September 7. No. 2002. against Hagedorn alleging substantially the same facts and involving the same issues. 2002. On September 23. 2002 to September 24. 2002. 02-492. 154512 Petitioner Socrates seeks to nullify the COMELEC en banc resolution dated August 14. Manaay filed another petition. Gilo (“Gilo” for brevity) filed a petition before the COMELEC. the instant consolidated petitions. Sandoval.R. 154683 Petitioner Vicente S. Hence. Jr. 2002 in E. On August 30. (4) the adoption of the resolution was exercised with grave abuse of authority. (“Ollave” for brevity) filed a petition-in-intervention in SPA No.” Subsequently. seeks to annul COMELEC Resolution No. The petitions were all anchored on the ground that “Hagedorn is disqualified from running for a fourth consecutive term. a certain Bienvenido Ollave. 02-492 also seeking to disqualify Hagedorn. No.M. SPA Nos. docketed as SPA No. The COMELEC affirmed the resolution declaring Hagedorn qualified to run in the recall election. Hagedorn (“Hagedorn” for brevity) filed his certificate of candidacy for mayor in the recall election. docketed as SPA No. Flores F. G. 2002. Ma. 2002. to disqualify Hagedorn from running in the recall election and to cancel his certificate of candidacy. The COMELEC declared Hagedorn qualified to run in the recall election. 02-492 and 02-539. (2) the proof of service of notice was palpably and legally deficient. No. Socrates cites the following circumstances as legal infirmities attending the convening of the PRA and its issuance of the Recall Resolution: (1) not all members of the PRA were notified of the meeting to adopt the resolution. In a resolution promulgated on September 20. (3) the members of the PRA were themselves seeking a new electoral mandate from their respective constituents. 02-010 (RC) which gave due course to the Recall Resolution and scheduled the recall election on September 7. 2002. Sr. 2002 insofar as it fixed the recall election on September 7. 5673 dated August 21. 2002. Adovo (“Adovo” for brevity) and Merly E. the COMELEC’s First Division[4] dismissed for lack of merit SPA Nos. 2002 or a period of 10 days. 02-539. having been elected and having served as mayor of the city for three (3) consecutive full terms immediately prior to the instant recall election for the same post.R. On August 17.

In the meantime. They likewise prayed for the issuance of a temporary restraining order to enjoin the proclamation of the winning candidate in the recall election. Nos. 154512.R. 5673 insofar as it fixed the date of the recall election on September 7. Socrates filed a motion for leave to file an attached petition for intervention seeking the same reliefs as those sought by Adovo. Petitioners argue that the COMELEC gravely abused its discretion in upholding Hagedorn’s qualification to run for mayor in the recall election despite the constitutional and statutory prohibitions against a fourth consecutive term for elective local officials. Petitioners were required to post a P20. The Issues The issues for resolution of the Court are: 1. whether Hagedorn is qualified to run for mayor in the recall election of Puerto Princesa on September 24. Thus.155083-84.220 votes and 13. 2002 and September 23. 2002. On October 1. 2002. Gilo and Ollave. 155083-84 Petitioners Adovo. No. 5708 giving the candidates an additional 15 days from September 7. On September 27. 2002 within which to campaign. Gilo and Ollave assail the COMELEC’s resolutions dated September 20. whether the COMELEC committed grave abuse of discretion in giving due course to the Recall Resolution and scheduling the recall election for mayor of Puerto Princesa. 2002. the COMELEC reset the recall election to September 24. the Court en banc enjoined the COMELEC from implementing Resolution No.000 bond. 2002.241 votes. . the Court ordered the COMELEC to desist from proclaiming any winning candidate in the recall election until further orders from the Court. 2002. Accordingly. 2002 in SPA Nos. Hagedorn filed motions to lift the order restraining the COMELEC from proclaiming the winning candidate and to allow him to assume office to give effect to the will of the electorate. 2002. on September 9. the Court granted Socrates’ motion for leave to file a petition for intervention. 2. In a resolution dated September 24.R. Nos. respectively. 2002 and that a new date be fixed giving the candidates at least an additional 15 days to campaign. 2002 within which to campaign. Rival candidates Socrates and Sandoval obtained 17. Hagedorn garnered the highest number of votes in the recall election with 20. In G.September 7. 2002. 02-492 and 02-539 declaring Hagedorn qualified to run for mayor in the recall election. In G.R.238 votes. The Court directed the COMELEC to give the candidates an additional fifteen 15 days from September 7. In a resolution dated September 3. 2002. G. the COMELEC en banc issued Resolution No.

the proponents for the Recall of incumbent City Mayor Victorino Dennis M. Socrates sent notices of the convening of the PRA to the members thereof pursuant to Section 70 of the Local Government Code. Copies of the said notice are in Volumes I and II entitled Notices to PRA. Likewise.In G.R. No.’ She likewise certified ‘that not a single member/signatory of the PRA complained or objected as to the veracity and authenticity of their signatures. the issue of whether the COMELEC committed grave abuse of discretion in fixing a campaign period of only 10 days has become moot. Atty. x x x the majority of all members of the PRA concerned approved said resolution. 154683. Our Resolution of September 3. print and broadcast media practitioners. The COMELEC. Region IV. The proponents likewise utilized the broadcast mass media in the dissemination of the convening of the PRA. finds the instant Petition sufficient in form and substance. and DILG officials]. after evaluating the documents filed.’ x x x .[5] . xxx The City Election Officer of Puerto Princesa City in her Certification dated 10 July 2002 certified that upon a ‘thorough and careful verification of the signatures appearing in PRA Resolution 0102. Petitioner Socrates argues that the COMELEC committed grave abuse of discretion in upholding the Recall Resolution despite the absence of notice to 130 PRA members and the defective service of notice to other PRA members. In Malonzo v. COMELEC. Proof of Service for each of the said notices were attached to the Petition and marked as Annex “G” of Volumes II and III of the Petition. First Issue: Validity of the Recall Resolution. Notices were likewise posted in conspicuous places particularly at the Barangay Hall. stated. Urbano Arlando. Notices of the convening of the Puerto Princesa PRA were also sent to the following: [a list of 25 names of provincial elective officials. all documents submitted are found in order. in his study dated 30 July 2002 submitted the following recommendations: ‘This Office. 2002 and COMELEC Resolution No. unless the findings are patently erroneous. in his Indorsement dated 10 July 2002. That the PRA was validly constituted and that the majority of all members thereof approved Resolution No. COMELEC city. regional and national officials. Socrates.’ The Provincial Election Supervisor of Palawan. however. in the month of June 2002. Photos establishing the same were attached to the Petition and marked as Annex “H”. 01-02 calling for the recall of Mayor Victorino Dennis M. 5708 granted an additional 15 days for the campaign period as prayed for by petitioner.’ The Acting Director IV. PNP officials. found that – “On various dates. ‘upon proper review.” This Court is bound by the findings of fact of the COMELEC on matters within the competence and expertise of the COMELEC.

or serious inconsistencies in the findings. and authenticated master list of barangay officials in Puerto Princesa. which states: “Section 8. Socrates had the right to examine and copy all these public records in the official custody of the COMELEC. 2002. Second Issue: Hagedorn’s qualification to run for mayor in the recall election of September 24.which also dealt with alleged defective service of notice to PRA members. 7160. the issue of propriety of the notices sent to the PRA members is factual in nature. the Court should not disturb the same. This argument deserves scant consideration considering that when the PRA members adopted the Recall Resolution their terms of office had not yet expired. we rule that the COMELEC did not commit grave abuse of discretion in upholding the validity of the Recall Resolution and in scheduling the recall election on September 24. There is no legal basis in Socrates’ claim that respondents violated his constitutional right to information on matters of public concern. Proponents of the recall election submitted to the COMELEC the Recall Resolution. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.” In the instant case. in the absence of a substantiated attack on the validity of the same. which shall be determined by law. however. except barangay officials.” This three-term limit rule is reiterated in Section 43 (b) of RA No. otherwise known as the Local Government Code. does not claim that the COMELEC denied him this right. we ruled that – “Needless to state. attendance sheets. notices sent to PRA members. admits receiving notice of the PRA meeting and of even sending his representative and counsel who were present during the entire PRA proceedings. The three-term limit rule for elective local officials is found in Section 8. based on its own assessments and duly supported by gathered evidence. 2002. 2002 because a majority of PRA members were seeking a new electoral mandate in the barangay elections scheduled on July 15. Thus. Socrates bewails that the manner private respondents conducted the PRA proceedings violated his constitutional right to information on matters of public concern. we do not find any valid reason to hold that the COMELEC’s findings of fact are patently erroneous. They were all de jure sangguniang barangay members with no legal disqualification to participate in the recall assembly under Section 70 of the Local Government Code. Article X of the Constitution. minutes of the PRA proceedings. more so. 2002. are conclusive upon the court. however. The factual findings of the COMELEC. Socrates. the journal of the PRA assembly. Socrates. shall be three years and no such official shall serve for more than three consecutive terms. Socrates also claims that the PRA members had no authority to adopt the Recall Resolution on July 2. The term of office of elective local officials. which provides: . and the determination of the same is therefore a function of the COMELEC. In the absence of patent error.

however. I where there is no further election after a total of three terms and Alternative No.”[8] The framers of the Constitution used the same “no immediate reelection” question in voting for the term limits of Senators[9] and Representatives of the House. like a recall election. does not prohibit a subsequent reelection for a fourth . First. is no longer covered by the prohibition for two reasons. The Constitution. Romulo manifested that the Body would proceed to the consideration of two issues on the term of Representatives and local officials. ROMULO Upon resumption of session. Mr. After three consecutive terms. The clear intent is that involuntary severance from office for any length of time interrupts continuity of service and prevents the service before and after the interruption from being joined together to form a continuous service or consecutive terms. what the Constitution prohibits is an immediate reelection for a fourth term following three consecutive terms. or whether there would be “no immediate reelection” after three terms. – (a) x x x (b) No local elective official shall serve for more than three (3) consecutive terms in the same position.”[7] The Journal of the Constitutional Commission reports the following manifestation on the term of elective local officials: “MANIFESTATION OF MR. 2 where there is no immediate reelection after three successive terms. an elective local official cannot seek immediate reelection for a fourth term. The prohibited election refers to the next regular election for the same office following the end of the third consecutive term. the question asked was whether there would be no further election after three terms. The clear intent is that only consecutive terms count in determining the three-term limit rule. MR. This is clear from the following deliberations of the Constitutional Commission: “THE PRESIDENT: The Acting Floor Leader is recognized. a subsequent election like a recall election is no longer an immediate reelection after three consecutive terms. The first part provides that an elective local official cannot serve for more than three consecutive terms. and these are Alternative No.“Section 43.[10] Clearly. When the framers of the Constitution debated on the term limit of elective local officials. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official was elected. and 2) Alternative No. Term of Office. Any subsequent election. ROMULO:[6] We are now ready to discuss the two issues.” These constitutional and statutory provisions have two parts. the intervening period constitutes an involuntary interruption in the continuity of service. 1 (no further reelection after a total of three terms). Second. 2 (no immediate reelection after three successive terms). as indicated on the blackboard. The second part states that voluntary renunciation of office for any length of time does not interrupt the continuity of service. namely: 1) Alternative No.

Hagedorn . 2001. this particular member of the Senate can run. it is not really a period of hibernation for six years.”[14] (Emphasis supplied) The framers of the Constitution thus clarified that a Senator can run after only three years[15] following his completion of two terms. The framers expressly acknowledged that the prohibited election refers only to the immediate reelection. during the six-year period following the two term limit. The framers of the Constitution did not intend “the period of rest” of an elective official who has reached his term limit to be the full extent of the succeeding term. Commissioner Rodrigo expressed the view that during the election following the expiration of the first 12 years. We will allow the Senator to rest for a period of time before he can run again? DAVIDE:[13] That is correct. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.term as long as the reelection is not immediately after the end of the third consecutive term. the following exchange in the Constitutional Convention is instructive: “GASCON:[12] I would like to ask a question with regard to the issue after the second term. the period of rest would be three years at the least. whether such election will be on the third or on the sixth year thereafter. and not to any subsequent election. The debates in the Constitutional Commission evidently show that the prohibited election referred to by the framers of the Constitution is the immediate reelection after the third term. What the Constitution prohibits is a consecutive fourth term. his candidacy in the recall election on September 24. 2002 is not an immediate reelection after his third consecutive term which ended on June 30. The constitutional provision on the term limit of Senators is worded exactly like the term limit of elective local officials. then Senators should also be prohibited from running in any election within the six-year full term following their two-term limit. If the prohibition on elective local officials is applied to any election within the three-year full term following the three-term limit. thus: “No Senator shall serve for more than two consecutive terms. The immediate reelection that the Constitution barred Hagedorn from seeking referred to the regular elections in 2001. GASCON: So. GASCON: And the question that we left behind before . In the case of Hagedorn. not any other subsequent election. A recall election mid-way in the term following the third consecutive term is a subsequent election but not an immediate reelection after the third term. effectively.”[11] In the debates on the term limit of Senators. So. That was the Committee’s stand. Neither does the Constitution prohibit one barred from seeking immediate reelection to run in any other subsequent election involving the same term of office.if the Gentleman will remember was: How long will that period of rest be? Will it be one election which is three years or one term which is six years? DAVIDE: If the Gentleman will remember.

2002 which broke the continuity or consecutive character of Hagedorn’s service as mayor. the other candidate for mayor. During the same period. 1995 and 1998 elections and served in full his three consecutive terms as mayor of Puerto Princesa. In his third bid for election as mayor in 1998. Under the Constitution and the Local Government Code. constituted an interruption in the continuity of his service as mayor. However. 2000. This period is clearly an interruption in the continuity of Hagedorn’s service as mayor.[18] a unanimous Court reiterated the rule that an interruption consisting of a portion of a term of office breaks the continuity of service of an elective local official. In Adormeo.[17] the Court had occasion to explain interruption of continuity of service in this manner: “x x x The second sentence of the constitutional provision under scrutiny states. Jr. 2004 is not a seamless continuation of his previous three consecutive terms as mayor. From June 30. In Lonzanida v. The clear intent is that interruption “for any length of time. The Constitution does not require the interruption or hiatus to be a full term of three years. 2002. Talaga won and served the unexpired term of Tagarao from May 12. Comelec and Talaga. although short of a full term of three years. “Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which he was elected. 2002 when he won by 3.” The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the same time respect the people’s choice and grant their elected official full service of a term is evident in this provision. After Hagedorn ceased to be mayor on June 30.” as long as the cause is involuntary. from running for a fourth consecutive term as mayor. Comelec. Raymundo Adormeo.did not seek reelection in the 2001 elections. 2002 to June 30. Hagedorn was elected for three consecutive terms in the 1992. petitioned for Talaga’s disqualification on the ground that Talaga had already served three consecutive terms as mayor. Talaga lost to Bernard G. but because of a legal prohibition. One cannot stitch together Hagedorn’s previous three-terms with his new recall term to make the recall term a fourth consecutive term because factually it is not. involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service. 2001 until the recall election on September 24. conversely. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three-term limit. Hagedorn’s new recall term from September 24. Ramon Y. Hagedorn’s three consecutive terms ended on June 30. 2001 to September 24. Hagedorn could no longer run for mayor in the 2001 elections. . the mayor of Puerto Princesa was Socrates. When Talaga ran again for mayor in the 2001 elections. is sufficient to break an elective local official’s continuity of service. 2001.018 votes over his closest opponent. Hagedorn did not run for mayor in the 2001 elections. x x x. An involuntary interruption occurred from June 30. In the recent case of Adormeo v. Tagarao. the nearly 15-month period he was out of office.” (Emphasis supplied) In Hagedorn’s case. The Constitution and the Local Government Code disqualified Hagedorn. he became a private citizen until the recall election of September 24. Socrates. in the recall election of May 12.[16] Socrates ran and won as mayor of Puerto Princesa in the 2001 elections. Talaga. 2001. who had reached the maximum three-term limit. Thus. had served two consecutive full terms as mayor of Lucena City. 2001. not because of his voluntary renunciation. Hagedorn was simply a private citizen. 2000 to June 30.

In Adormeo. In the same manner. 2001. The period of time prior to the recall term. Clearly. there having been a break of almost two years during which time Tagarao was the mayor. despite the fact that he won his recall term only last September 24. then he would have been disqualified to run in the 2001 elections because he would already have served three consecutive terms prior to the 2001 elections. Indeed. But to consider Hagedorn’s recall term as a full term of three years. We held in Adormeo that the period an elective local official is out of office interrupts the continuity of his service and prevents his recall term from being stitched together as a seamless continuation of his previous two consecutive terms. they adopted the alternative proposal of Commissioner Christian Monsod that such officials be simply barred from running for the same position in the . stating that the period from June 30. 2000 when Talaga was out of office interrupted the continuity of his service as mayor. §8 of the Constitution reveals that the members of the Constitutional Commission were as much concerned with preserving the freedom of choice of the people as they were with preventing the monopolization of political power. In the instant case. to make Hagedorn’s recall term retroact to June 30. v. In Adormeo. Jr. Adormeo established the rule that the winner in the recall election cannot be charged or credited with the full term of three years for purposes of counting the consecutiveness of an elective official’s terms in office. 1998 to May 12. Talaga’s recall term did not retroact to include the tenure in office of his predecessor. Comelec: “Thus. Term limits must be construed strictly to give the fullest possible effect to the sovereign will of the people. The Court ruled that Talaga was qualified to run in the 2001 elections. In the instant case.Thus. the interruption occurred after the first two consecutive terms. If Talaga’s recall term was made to so retroact. the issue in Adormeo was whether Talaga’s recall term was a continuation of his previous two terms so that he was deemed to have already served three consecutive terms as mayor. One who wins and serves a recall term does not serve the full term of his predecessor but only the unexpired term. The only difference between Adormeo and the instant case is the time of the interruption. the respondents were seeking election for a fourth term. they rejected a proposal put forth by Commissioner Edmundo F. X. In both cases. Garcia that after serving three consecutive terms or nine years there should be no further reelection for local and legislative officials. retroacting to June 30. Worse. when another elective official holds office. a consideration of the historical background of Art. The concept of term limits is in derogation of the sovereign will of the people to elect the leaders of their own choosing. This Court cannot declare as consecutive or successive terms of office which historically and factually are not. for only then can the recall term constitute a fourth consecutive term. constitutes an interruption in continuity of service. 2002. 2001 creates a legal fiction that unduly curtails the freedom of the people to choose their leaders through popular elections. Hagedorn’s recall term does not retroact to include the tenure in office of Socrates. As this Court aptly stated in Borja. Talaga’s recall term as mayor was not consecutive to his previous two terms because of this interruption. the interruption happened after the first three consecutive terms. 2001. Instead. is to ignore reality. 2002 recall election if the recall term is made to retroact to June 30. we likewise hold that the nearly 15 months Hagedorn was out of office interrupted his continuity of service and prevents his recall term from being stitched together as a seamless continuation of his previous three consecutive terms. Hagedorn can only be disqualified to run in the September 24. the recall term of Talaga began only from the date he assumed office after winning the recall election.

because we speak of ‘term. we hold that Hagedorn is qualified to run in the September 24. This is the inherent limitation he takes by running and winning in the recall election. 2004 cannot be made to retroact to June 30. A local official who serves a recall term should know that the recall term is in itself one term although less than three years. an elective local official who serves a recall term can serve for more than nine consecutive years comprising of the recall term plus the regular three full terms. Hagedorn’s continuity of service as mayor was involuntarily interrupted from June 30. 3. 2002 to June 30.’”[19] (Emphasis supplied) A necessary consequence of the interruption of continuity of service is the start of a new term following the interruption. No costs. and 4. he will serve only for the unexpired portion of that particular term plus one more term for the Senator and two more terms for the Members of the Lower House. The temporary restraining order issued by this Court on September 24. An official elected in recall election serves the unexpired term of the recalled official. In summary. plus one term would disqualify the Senator concerned from running? Is that the meaning of this provision on disqualification. Hagedorn is not running for immediate reelection following his three consecutive terms as mayor which ended on June 30. 2002 is lifted.succeeding election following the expiration of the third consecutive term. Nos. the petitions in G. 2002 during which time he was a private citizen. half a term. Madam President? DAVIDE: Yes. . the same principle applies to a recall election of local officials. Monsod warned against ‘prescreening candidates [from] whom the people will choose’ as a result of the proposed absolute disqualification. which is actually the correct statement. Hagedorn’s recall term from September 24. Term limits should be construed strictly to give the fullest possible effect to the right of the electorate to choose their leaders. a special election is called for a Senator. WHEREFORE. 2. 2001 to make a fourth consecutive term because factually the recall term is not a fourth consecutive term. This is clear from the following discussion in the Constitutional Commission: “SUAREZ:[20] For example. 154512.R. 2002 enjoining the proclamation of the winning candidate for mayor of Puerto Princesa in the recall election of September 24. and the Senator newly elected would have to serve the unexpired portion of the term. 2002 recall election for mayor of Puerto Princesa because: 1. 154683 and 155083-84 are DISMISSED. 2001.”[21] Although the discussion referred to special elections for Senators and Representatives of the House. Otherwise. Would that mean that serving the unexpired portion of the term is already considered one term? So.’ and if there is a special election. This unexpired term is in itself one term for purposes of counting the three-term limit. 2001 to September 24. considering that the draft constitution contained provisions ‘recognizing people's power.

G. Thus. No. 5673dated August 21. He prayed that theCOMELEC be enjoined from holding the recall election on September 7.FACTS:G. 5673 insofar as it fixed the date of the recallelection on September 7. (3) the members of the PRA were themselves seeking a new electoralmandate from their respective constituents.SO ORDERED.In a resolution dated September 3. 5708giving the candidates an additional 15 days from September 7. 2002. No. 2002. The Court directed the COMELEC to give thecandidates an additional fifteen 15 days from September 7. 154512. 155083-84Petitioners Adovo. the COMELEC en banc issued Resolution No. xliv xlv xlvi xlvii xlviii xlix l li lii liii livetition:Consolidated petitions for certiorari[1] seeking the reversal of theresolutions issued by the Commission on Elections (COMELEC for brevity) in �� relation to the recall election for mayor of Puerto Princesa City. 2002 in E.Petitioners argue that the COMELEC gravely abused its discretion in upholdingHagedorns qualification to run for mayor in the recall election despite the .R. 2002enjoining the proclamation of the winning candidate for mayor of Puerto Princesain the recall election of September 24. 154512Petitioner Socrates seeks to nullify the COMELEC en banc resolution dated August14. seeks to annul COMELEC Resolution No. Nos.Socrates alleges that the COMELEC gravely abused its discretion in upholding theRecall Resolution. 2002 insofar as it fixed the recall election on September 7. Gilo and Ollave assail the COMELECs resolutions dated � September 20. 02-010 (RC) which gave due course to the Recall Resolutionand scheduled the recall election on September 7. 2002. the Court en banc enjoined the COMELECfrom implementing Resolution No. 154683Petitioner Vicente S. (4) the adoption of the resolution wasexercised with grave abuse of authority.R. Socrates cites the following circumstances as legalinfirmities attending the convening of the PRA and its issuance of the RecallResolution: (1) not all members of the PRA were notified of the meeting to adoptthe resolution. 2002 within which tocampaign. 02-492 and 02-539 declaringHagedorn qualified to run for mayor in the recall election. 154683 and 155083-84 are DISMISSED. 2002.Ruling: The petitions in G. on September 9.R. G. Jr. 2002. Palawan. 2002 in SPA Nos. 2002 and thata new date be fixed giving the candidates at least an additional 15 days tocampaign.M. giving the candidates only a ten-day campaign period. 2002 within which tocampaign.2002.R. No. They likewise prayedfor the issuance of a temporary restraining order to enjoin the proclamation ofthe winning candidate in the recall election. the COMELEC reset the recall election to September 24. and (5) the PRA proceedings wereconducted in a manner that violated his and the publics constitutional right to � information.Accordingly. 2002 and September 23. Sandoval. Nos. 2002 is lifted .The temporary restraining order issued by this Court on September 24. (2) the proof of service of notice was palpably and legallydeficient.

�� Notices were likewise posted in conspicuous places particularly at the BarangayHall.On October 1.� constitutional and statutory prohibitions against a fourth consecutive term forelective local officials. we hold that Hagedorn is qualified to run in the September 24. Copies of the said notice are in Volumes I and II entitled Notices to PRA. Hagedorn is not running for immediate reelection following his threeconsecutive terms as mayor which ended on June 30. OurResolution of September 3. and DILG officials]. In G. whether Hagedorn is qualified to run for mayor in therecall election of Puerto Princesa on September 24. In a resolution dated September 24. 3. Nos. the Court granted Socrates motion for leave to file a � petition for intervention. ISSUES: 1.241 votes. Hagedorn garnered the highest number of votes in the recallelection with 20. PNP officials.R. No. HELD:First Issue: Validity of the Recall Resolution.In the meantime.2. 154683.220 votes and 13.found that � On various dates. 5708 granted anadditional 15 days for the campaign period as prayed for by petitioner.R. the Court ordered the COMELEC to desistfrom proclaiming any winning candidate in the recall election until further ordersfrom the Court. 2002recall election for mayor of Puerto Princesa because:1. Giloand Ollave.Likewise.155083-84. Rival candidates Socrates and Sandoval obtained17. 2002 . 2002. regional and nationalofficials. 4. in the month of June 2002. Petitioners were required to post a P20. Notices of the convening of the Puerto Princesa PRA were also sent to thefollowing: [a list of 25 names of provincial elective officials. print andbroadcast media practitioners.In G. COMELEC city. whether the COMELEC committed grave abuse ofdiscretion in giving due course to the Recall Resolution and scheduling the recall election for mayor of Puerto Princesa. No. In G.000 bond. Hagedorns continuity of service as mayor was involuntarily interrupted from � . the proponents for the Recall of � incumbent City Mayor Victorino Dennis M. however. 2002. unless the findings are patentlyerroneous. The COMELEC. 2002. 154512. hus.Second Issue: Hagedorns qualification to run for mayor � In summary. the issue of whether the COMELEC committed grave abuse ofdiscretion in fixing a campaign period of only 10 days has become moot.Hagedorn filed motions to lift the order restraining the COMELEC from proclaimingthe winning candidate and to allow him to assume office to give effect to the willof the electorate. 2001. 2002. Socrates sent notices of the convening ofthe PRA to the members thereof pursuant to Section 70 of the Local GovernmentCode. Socrates filed a motion for leave to file an attachedpetition for intervention seeking the same reliefs as those sought by Adovo.R.On September 27.Petitioner Socrates argues that the COMELEC committed grave abuse of discretion inupholding the Recall Resolution despite the absence of notice to 130 PRA membersand the defective service of notice to other PRA members. we rule that the COMELEC did not commit grave abuse of discretionin upholding the validity of the Recall Resolution and in scheduling the recallelection on September 24.This Court is bound by the findings of fact of the COMELEC on matters within thecompetence and expertise of the COMELEC.238 votes. 2002 and COMELEC Resolution No. Proof of Service for each of the said notices were attached to thePetition and marked as Annex G of Volumes II and III of the Petition. respectively.

2004 cannot be made � to retroact to June 30. Term limits should be construed strictly to give the fullest possible effect tothe right of the electorate to choose their leaders lv lvi lvii lviii lix lx lxi lxii lxiii lxiv lxv lxvi lxvii lxviii lxix lxx lxxiEN BANC FRANCIS G. CORONA. No. 2002 during which time he was a private citizen. 2002 to June 30. Present: PANGANIBAN. 163295 Petitioner. .June 30. G. PUNO. and4. . Hagedorns recall term from September 24.versus - CARPIO AUSTRIA-MARTINEZ.J. C. YNARES-SANTIAGO.3. SANDOVAL-GUTIERREZ. ONG. QUISUMBING. 2001 to September 24. 2001 to make a fourth consecutive term because factuallythe recall term is not a fourth consecutive term.R.

TINGA. Respondents. 2006 x---------------------x ROMMEL G. JOSEPH STANLEY ALEGRE and Promulgated: COMMISSION ON ELECTIONS. AZCUNA. CALLEJO. JJ. 163354 JOSEPH STANLEY ALEGRE and COMMISSION ON ELECTIONS. - versus - G.CARPIO MORALES. Respondents. and GARCIA. Petitioner. CHICO-NAZARIO. January 23. SR. x----------------------------------------x DECISION . ONG..R. No.

granting private respondent Joseph Stanley Alegre's motion for reconsideration of the resolution dated March 31. is for certiorari. among other things. 163295.: Before the Court are these two separate petitions under Rule 65 of the Rules of Court to nullify and set aside certain issuances of the Commission on Elections (COMELEC) en banc. The first. with application for injunctive relief. G. 2004. 2004 en banc resolution in SPA Case No.GARCIA. 2004 elections. No. is a petition for certiorari with petitioner Francis G. docketed as G. 04048 pending the outcome of the petition in G. Francis was then the incumbent mayor. J. The recourse stemmed from the following essential and undisputed factual backdrop: Private respondent Joseph Stanley Alegre (Alegre) and petitioner Francis Ong (Francis) were candidates who filed certificates of candidacy for mayor of San Vicente. 04-048. No. 2004 in SPA Case No. 163295.R. 163354.R. Ong impugning the COMELEC en banc resolution[1] dated May 7. Per its en banc Resolution of June 1. 2004 [2] of the COMELEC’s First Division. to stop the COMELEC from enforcing and implementing its aforesaid May 7. the Court ordered the consolidation of these petitions. . seeking. The second. prohibition and mandamus. filed by petitioner Rommel Ong. Camarines Norte in the May 10. No. brother of Francis.R.

one of the requisites for the application of the three term rule is not present.On January 9. Francis Ong might have indeed fully served the mayoral terms of 1995 to 1998. 2004 elections. Herein. 1998 to 2001 and 2001 to 2004. 2001. docketed as Election Case No.” This disposition had become final after the [COMELEC] dismissed the appeal filed by Ong. the petition to disqualify was predicated on the three-consecutive term rule. the First Division of the COMELEC rendered on March 31. from 1998 to 2001 cannot be considered his because he was not duly elected thereto. Docketed as SPA Case No. 04-048. Deny Due Course and Cancel Certificate of Candidacy[3] of Francis. To digress a bit. rationalizing as follows: We see the circumstances in the case now before us analogous to those obtaining in the sample situations addressed by the Highest Court in the Borja case. Alegre filed with the COMELEC Provincial Office a Petition to Disqualify. Francis having. xxx xxx xxx On the basis of the words of the Highest Court pronounced in the Lonzanida case and applicable in the case at bench. and May 2001 mayoralty elections and have assumed office as mayor and discharged the duties thereof for three (3) consecutive full terms corresponding to those elections. The mayoral term however. with the latter being subsequently proclaimed by COMELEC winner in that contest. Camarines Norte. Alegre subsequently filed an election protest. 2004. May 1998. In it. Acting on Alegre’s petition to disqualify and to cancel Francis’ certificate of candidacy for the May 10. 2004 a resolution[5] dismissing the said petition of Alegre. Camarines Norte. in its decision that Stanley Alegre was the “legally elected mayor in the 1998 mayoralty election in San Vicente. Ong could not be considered as having served as mayor from 1998 to 2001 because “he was not duly elected to the post. when Francis had fully served the 1998-2001 mayoralty term and was in fact already starting to serve the 2001-2004 term as mayor-elect of the municipality of San Vicente. the May 1998 elections saw both Alegre and Francis opposing each other for the office of mayor of San Vicente. ran in the May 1995. he merely . the RTC declared Alegre as the duly elected mayor in that 1998 mayoralty contest.[4] albeit the decision came out only on July 4. according to Alegre. Camarines Norte. 6850 before the Regional Trial Court (RTC) at Daet. the case having become moot and academic. Camarines Norte. The [RTC] of Daet. Branch 41 has voided his election for the 1998 term when it held.

Undaunted.which is past the deadline for filing a certificate of candidacy. (b) ordering the deletion of Francis’ name from the official list of candidates. Atty. which immediately nominated his older brother. as substitute candidate for his brother Francis. in the main. 2004”. Alegre filed a Petition to Deny Due Course to or Cancel Certificate of Rommel Ong. which presumption was later overturned … when [the RTC] decided with finality that [he] lost in the May 1998 elections. Francis received a fax machine copy of the aforecited May 7. Pormento. Comelec and Lonzanida vs. 04-048. a resolution[6] reversing the March 31. Rommel filed his own certificate of candidacy for the position of mayor. May 8. Rommel Ong (Rommel). The following day. 2004. 2004 resolution of the COMELEC’s First Division and thereby (a) declaring Francis “as disqualified to run for mayor of San Vicente. 2004 resolution. as applied in the cited cases of Borja vs. Basilonia in which he appealed that. Camarines Norte in the …May 10. Alegre filed a timely motion for reconsideration. counsel for the Ong brothers. in SPA No. the Nationalist People’s Coalition. of the very same day . contending. infra. the COMELEC en banc issued. addressed a letter[7] to Provincial Election Supervisor (PES) of Camarines Norte Liza Z.” (Words in bracket and emphasis in the original). Cariño and Acting Election Officer Emily G. that there was a misapplication of the three-term rule. The following undisputed events then transpired: 1. the name “Rommel Ong” be included in the official certified list of candidates for mayor of San Vicente. sending him posthaste to seek the assistance of his political party. On May 7. On May 9. owing to the COMELEC’s inaction on Alegre's petition to cancel Rommel’s certificate of candidacy. . 2. The desired listing was granted by the PES Carino. Comelec. and (c) directing the concerned board of election inspectors not to count the votes cast in his favor. Camarines Norte. as substitute candidate. 2004. At about 5:05 p. or a day before the May 10 elections. Evillo C.assumed office as a presumptive winner.m.

Zabala-Cariño. 2004. and 2) the election officer be directed to delete his name from the list of candidates. thereof. (Emphasis in the original. Commissioner Garcillano issued a Memorandum under date May 10. In view. Abaya (311 SCRA 617) which states: "There can no valid substitution where a candidate is excluded not only by disqualification but also by denial and cancellation of his certificate of candidacy. prompting the latter to file a protest with that Board. 2004. In the Resolution of the Commission En banc. Law Department]. it would seem that the Chairman of the Municipal Board of Canvasser of San Vicente issued an order enjoining all concerned not to canvass the votes cast for Rommel. Alegre wrote[8] to then COMELEC Commissioner Virgilio Garcillano. 04-048 promulgated on May 7.[11] . Owing to the aforementioned Garcillano Memorandum." and elaborated further that: "x x x there is an existing policy of the Commission not to include the name of a substitute candidate in the certified list of candidates unless the substitution is approved by the Commission. you are hereby directed to faithfully implement the said Resolution of the Commission En Banc in SPA No. ordering her to implement the resolution of the COMELEC en banc in SPA No. Dalaig [Director IV. 2004[9] addressed to PES Liza D. 04-048 promulgated on May 7." The above position of the Commission was in line with the pronouncement of Supreme Court in Miranda vs. "that substitution is not proper if the certificate of the substituted candidacy is denied due course. Commissioner-in-Charge for Regions IV and V. On May 10. Alioden D. Responding.3. 2004. 4. which he quote your stand. the Certificate of candidacy of Francis Ong was denied due course.[10] Said Memorandum partly stated: The undersigned ADOPTS the recommendation of Atty. should be denied due course." In view thereof. words in bracket added]. it is recommended that 1) the substitute certificate of candidacy of Rommel Ong Gan Ong. seeking clarification on the legality of the action thus taken by the PES Cariño.

163295. No.R. on June 4. Camarines Norte. the Municipal Board of Canvassers proclaimed Alegre as the winning candidate for the mayoralty post in San Vicente. for being moot and academic. In G. Camarines Norte for the mayoralty term 1998 to 2001 should be considered as .[13] Meanwhile. the COMELEC issued an order dismissing private respondent Alegre’s Petition to Deny Due Course to or Cancel Certificate of Candidacy of Rommel Ong. presently docketed as G. 2004.R. In our en banc resolution dated June 1.R. [12] On May 12. whether the COMELEC committed grave abuse of discretion when it denied due course to Rommel’s certificate of candidacy in the same mayoralty election as substitute for his brother Francis. No. 2004. 2004 elections and consequently ordering the deletion of his name from the official list of candidates so that any vote cast in his favor shall be considered stray.R. A resolution of the issues thus formulated hinges on the question of whether or not petitioner Francis’s assumption of office as Mayor of San Vicente. 163295. Camarines Norte in the May 10. 163295 and G.R. No. 2004. On May 11.R. 163354 were consolidated. No. No. 2004. 163354.[14] The issues for resolution of the Court are: In G. 2004 declaring petitioner Francis as disqualified to run for Mayor of San Vicente. 163354 followed barely a week after. whether the COMELEC acted with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing its en banc resolution dated May 7.5. Francis filed before the Court a petition for certiorari. His brother Rommel’s petition in G. G. No.

Article X of the 1987 Constitution. while he indeed assumed office and discharged the duties as Mayor of San Vicente for three consecutive terms. petitioner argues. xxx xxx xxx (b) No local elective official shall serve for more than three consecutive years in the same position. that a proclamation subsequently declared void is no proclamation at all and one assuming office on the strength of a protested proclamation does so as a presumptive winner and subject to the final outcome of the election protest. The term of office of elective local officials. Camarines Norte dated July 4. which shall be determined by law. two conditions or requisites must concur. which provides: Sec. The three-term limit rule for elective local officials is found in Section 8.full service for the purpose of the three-term limit rule. disagrees. Voluntary renunciation of the office for any length of time shall not be considered an interruption in the continuity of service for the full term for which the elective official concerned was elected. 43. Pressing the point. . citing Lonzanida vs. Section 43 (b) of the Local Government Code restates the same rule as follows: Sec. 2001. Term of Office. For the three-term limit for elective local government officials to apply. He argues that. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. shall be three years and no such official shall serve for more than three consecutive terms. to wit: (1) that the official concerned has been elected for three (3) consecutive terms in the same local government post. 8. Respondent COMELEC resolved the question in the affirmative. Petitioner Francis. except barangay officials. Comelec[15]. on the other hand. his proclamation as mayor-elect in the May 1998 election was contested and eventually nullified per the decision of the RTC of Daet.

albeit there can also be no quibbling that Francis ran for mayor of the same municipality in the May 1998 elections and actually served the 1998-2001 mayoral term by virtue of a proclamation initially declaring him mayor-elect of the municipality of San Vicente. 1995June 30. 2001. “service for the full term”.and (2) that he has fully served three (3) consecutive terms. the disqualifying requisites are present herein. and should be counted as a full term served in contemplation of the three-term limit prescribed by the constitutional and statutory provisions. that disposition. therefore. 6850. supra. barring local elective officials from being elected and serving for more than three consecutive term for the same position. therefore. may be considered as one full term service in the context of the consecutive three-term limit rule. We hold that such assumption of office constitutes.[16] With the view we take of the case.[17] that it was Francis’ opponent (Alegre) who “won” in the 1998 mayoralty race and. should legally be taken as service for a full term in contemplation of the three-term rule. was without practical and legal use and value. having been promulgated after the term of the contested office has expired. The question that begs to be addressed. Camarines Norte ruled in Election Protest Case No. Camarines Norte in the May 10. 1998 and the July 1. 2004 elections. 2001-June 30. for Francis. it must be stressed. 2004 terms in full. The herein controversy revolves around the 1998-2001 mayoral term. Camarines Norte from July 1. . There can be no dispute about petitioner Francis Ong having been duly elected mayor of that municipality in the May 1995 and again in the May 2001 elections and serving the July 1. was the legally elected mayor of San Vicente. 1998 to June 30. It is true that the RTC-Daet. is whether or not Francis’s assumption of office as Mayor of San Vicente. thus effectively barring petitioner Francis from running for mayor of San Vicente. Petitioner Francis’ contention that he was only a presumptive winner in the 1998 mayoralty derby as his proclamation was under protest did not make him less than a duly elected mayor. However. His proclamation by the Municipal Board of Canvassers of San Vicente as the duly elected mayor in the 1998 mayoralty election coupled by his assumption of office and his continuous exercise of the functions thereof from start to finish of the term.

when another actually served such term pursuant to a proclamation made in due course after an election. and that he did not fully serve the 1995-1998 mayoralty term by reason of involuntary relinquishment of office. and. Lonzanida vs. Now. Such contrary view would mean that Alegre would – under the three-term rule .The absurdity and the deleterious effect of a contrary view is not hard to discern. his opponent contested his proclamation and filed an election protest before the RTC of Zambales. For another. the result of the mayoralty election was declared a nullity for the stated reason of “failure of election”. the proclamation of Lonzanida as mayor-elect was nullified. there being an involuntary severance from office as a result of legal processes. The COMELEC affirmed this ruling and petitioner Lonzanida acceded to the order to vacate the post. However. Comelec. petitioner Lonzanida was elected and served for two consecutive terms as mayor of San Antonio. there was an effective interruption of the continuity of service.[18] citing Borja vs. Zambales prior to the May 8. under the three-term rule. Lonzanida assumed the office and performed his duties up to March 1998 only. in a decision dated January 9. ruled that there was a failure of elections and declared the position vacant. followed by an order for him to vacate the office of mayor. In fine. in Lonzanida. to our mind. during the May 1998 elections. Lonzanida did not fully serve the 1995-1998 mayoral term. the Court held that Lonzanida cannot be considered as having been duly elected to the post in the May 1995 election. 1997. was filed and was eventually granted. but. Comelec[19]. Lonzanida “cannot be deemed to have served the May 1995 to 1998 term because he was ordered to vacate [and in fact vacated] his post before the expiration of the term. As the Court pointedly observed. For one. He then ran again for the same position in the May 1995 elections. Lonzanida again ran for mayor of the same town.be considered as having served a term by virtue of a veritably meaningless electoral protest ruling. In Lonzanida. won and discharged his duties as Mayor. Petitioner cites. A petition to disqualify. cannot seek refuge from the Court’s ruling in.” The difference between the case at bench and Lonzanida is at once apparent. which. There. as a consequence thereof. 1995 elections. .

emphasis in the original) Given the foregoing consideration. Here.On the other hand. therefore. His full term from 1998 to 2001 could not be simply discounted on the basis that he was not duly elected thereto on account of void proclamation because it would have iniquitous effects producing outright injustice and inequality as it rewards a legally disqualified and repudiated loser with a crown of victory. 2004 assailed Resolution commends itself for concurrence: As correctly pointed out by Petitioner-Movant [Alegre]in applying the ruling in the Borja and Lonzanida cases in the instant petition will be erroneous because the factual milieu in those cases is different from the one obtaining here. Camarines Norte for the entire period covering the 1998-2001 term. he never ceased discharging his duties and responsibilities as mayor of San Vicente. there was actually no interruption or break in the continuity of Francis’ service respecting the 1998-2001 term. the question of whether or not then Commissioner Virgilio Garcillano overstepped his discretion when he issued the May 10. from 1995 to 2004. here. 2004 COMELEC en banc resolution even before its finality[20] is now of little moment and need not detain . 2004 elections for the mayoralty post of San Vicente and denying due course to his certificate of candidacy by force of the constitutional and statutory provisions regarding the three-term limit rule for any local elective official cannot be sustained. The ascription. the failure-of-election factor does not obtain in the present case. Unlike Lonzanida. Explicitly. Respondent Ong would have served continuously for three consecutive terms. (Word in bracket added. But more importantly. What the COMELEC en banc said in its May 7. ordering the implementation of aforesaid May 7. 2004 Memorandum. the three-term limit was not made applicable in the cases of Borja and Lonzanida because there was an interruption in the continuity of service of the three consecutive terms. of grave abuse of discretion on the part of the COMELEC en banc when it disqualified Francis from running in the May 10. Francis was never unseated during the term in question.

Abaya. Under the foregoing rule. 2004 elections. No.us any longer. much in the same way that a nuisance candidate whose certificate of candidacy is denied due course and/or cancelled may not be substituted. 163354 in which he (Rommel) challenges the COMELEC's act of not including his name as a substitute candidate in the official list of candidates for the May 10. there can be no valid substitution for the latter case. If the intent of the lawmakers were otherwise. While the law enumerated the occasions where a candidate may be validly substituted. Not to be overlooked is the Court’s holding in Miranda vs. Expressio unius est exclusio alterius. Just as unmeritorious as Francis’ petition in G.R. [22] that a candidate whose certificate of candidacy has been cancelled or not given due course cannot be substituted by another belonging to the same political party as that of the former. 163295 is Rommel’s petition in G. existing COMELEC policy[21] provides for the non-inclusion of the name of substitute candidates in the certified list of candidates pending approval of the substitution. this does not include those cases where the certificate of candidacy of the person to be substituted had been denied due course and cancelled under Section 78 of the Code. thus: While there is no dispute as to whether or not a nominee of a registered or accredited political party may substitute for a candidate of the same party who had been disqualified for any cause. No. they could have so easily and conveniently included those persons whose certificates of candidacy have been denied due course and/or cancelled under the provisions of Section 78 of the Code. there is no mention of the case where a candidate is excluded not only by disqualification but also by denial and cancellation of his certificate of candidacy.R. As it were. .

R.R. 163354 is already moot and academic. In any event. be a candidate at all. it can be readily understood why in Bautista [Bautista vs. there demonstrably cannot be any possible substitution of a person whose certificate of candidacy has been cancelled and denied due course. 04-048 AFFIRMED.xxx xxx xxx A person without a valid certificate of candidacy cannot be considered a candidate in much the same way as any person who has not filed any certificate of candidacy at all can not. Rommel Ong’s petition in G. Comelec. by any stretch of the imagination. 2004 of the COMELEC. 133840. in SPA No. xxx xxx xxx After having considered the importance of a certificate of candidacy. Applying this principle to the case at bar and considering that Section 77 of the Code is clear and unequivocal that only an official candidate of a registered or accredited party may be substituted. the instant petitions are DISMISSED and the assailed en banc Resolution dated May 7. Costs against petitioners. with the hard reality that the May 10. No. . 1998] we ruled that a person with a cancelled certificate is no candidate at all. No. 2004 elections were already passé. November 13. G. WHEREFORE.

Camarines Norte for themayoralty term 1998 to 2001 be considered as full service for the purpose of the three-term limit rule..HELD: Affirmative. rationalizing that Francis might have indeed fully served the mayoral terms of 1995 to 1998. L-41182-3 April 16. in its decision that Alegre was the "legally elected Mayor inthe 1998 mayoralty election in San Vicente. according to Alegre. lxxii lxxiiiONG VS ALEGRE FACTS: Alegre filed with the COMELEC Provincial Office a Petition to Disqualify. it was without effect as the declaration only took place AFTER theexpiration of the contested office lxxiv lxxv lxxvi lxxvii lxxviii lxxix lxxx Sevilla vs CA G. Deny Due Courseand Cancel the Certificate of Candidacy of Francis Ong. ran in the May 1995. No.SO ORDERED."ISSUE: Whether or not Ong’s assumption of office as Mayor of San Vicente. 2004 a resolution dismissing the said petitionof Alegre. 1998.The First Division of COMELEC rendered on March 31. from 1998 to 2001 cannot be consideredhis because he was not duly elected thereto. andMay 2001 mayoralty elections and have assumed office as Mayor and discharged the duties thereof for three consecutive full terms corresponding to those elections. Camarines Norte. 1988 Employer-Employee Relationship Facts: . The RTC of Daet.1998 to 2001 and 2001 to 2004 but the mayoral term however. Camarines Norte Branch 41 has voided 1 It is a general rule of law that an incumbent of an office will hold over after the conclusion or expiration of his term until theappointment of his successor 2 The laws of Australia at that time required any person over the age of 16 who is granted citizenship to take an oath of allegiance his election for the 1998 term when it held. The petition to disqualify was predicated onthe three-consecutive term rule. Francis having.R. Ong is disqualified as even if the COMELEC had declared Alegre to be the legallyelected mayor in the 1998 elections.

Inc. to be a mere employee of said Tourist World Service. On November 24. 1961 the Tourist World Service. Inc. Inc. the Tourist World Service. party of the first part. and hereinafter referred to as appellants. Tourist World Service.. the same was run by the herein appellant Una 0. by any airline for any fare brought in on the efforts of Mrs. it was within its prerogative to terminate the lease and padlock the premises. Issue: Whether or not the padlocking of the premises by the Tourist World Service. the Philippine Travel Bureau. represented by Mr. Eliseo Canilao as party of the second part. appears to have been informed that Lina Sevilla was connected with a rival firm. 4% was to go to Lina Sevilla and 3% was to be withheld by the Tourist World Service. the reinstated counterclaim of Segundina Noguera and the new complaint of appellant Lina Sevilla were jointly heard following which the court ordered both cases dismiss for lack of merit. It likewise found the petitioner. Inc.. the existing economic conditions prevailing between the parties. "where the person for whom the services are performed reserves a right to control not only the end to be achieved but also the means to be used in reaching such end. Lina Sevilla. Lina Sevilla claims that a joint bussiness venture was entered into by and between her and appellee TWS with offices at the Ermita branch office and that she was not an employee of the TWS to the end that her relationship with TWS was one of a joint business venture appellant made declarations. Manila for the former-s use as a branch office. In her appeal. Inc. Inc." Subsequently. without the knowledge and consent of the appellant Lina Sevilla entitled the latter to the relief of damages prayed for and whether or not the evidence for the said appellant supports the contention that the appellee Tourist World Service. Inc. Lina Sevilla. In this jurisdiction. In general. like the inclusion of the employee in the payrolls. the Tourist World Service considered closing down its office. in addition to the standard of right-of control. we have considered. leased the premises belonging to the party of the first part at Mabini St. the Tourist World Service.The petitioners invoke the provisions on human relations of the Civil Code in this appeal by certiorari. in determining the existence of an employer-employee relationship. appellant Lina Sevilla refiled her case against the herein appellees and after the issues were joined. unilaterally and without the consent of the appellant disconnected the telephone lines of the Ermita branch office of the appellee Tourist World Service. and as such.1963. since the branch office was anyhow losing. On June 17. she was bound by the acts of her employer. however.? Held: The trial court held for the private respondent on the premise that the private respondent. In the said contract the party of the third part held herself solidarily liable with the party of the part for the prompt payment of the monthly rental agreed on. The respondent Court of Appeal rendered an affirmance. being the true lessee. there has been no uniform test to determine the evidence of an employer-employee relation. Inc. Sevilla payable to Tourist World Service Inc. we have relied on the so-called right of control test.. Inc. . Segundina Noguera. and. Mrs. When the branch office was opened.

J.. S. V.00 as and for moral damages. the S. SEVILLA Petitioners. a contract was entered into between Jose Nepomuceno and S. 1947. The first of the notes was to mature on December 10. Inc. Pictures not in his personal capacity. The sitpulated consideration of P23. are ORDERED jointly and severally to indemnify the petitioner.00. 1947. made partial payments to Nepomuceno as stipulated in the contract.00 each payable without interest to Nepomuceno. the sum of 25. whereby for a consideration of P23. V.00.. V. S.00. executed six promissory notes for P1.00.000.. Inc. S. The later.000. and . Pictures. INC. THE COURT OF APPEALS.00 weekly for ten weeks and the balance from the first receipts from the showing of the picture. V. Pictures and Ramon S. Together with the answers.00 on the date of the contract. defendants each filed a third party complaint against Nepomuceno alleging that the latter had breached his contract by not releasing to the S. Pictures. RAMCAR. Three prints thereof were delivered to S. S. that their assignment to plaintiff RAMCAR was not valid because it was without consideration and without notice to the makers.000. as and for nominal and/or temperate damages. and JOSE NEPOMUCENO.000. an accounting was had between the parties. and Eliseo Canilao. Pictures the remaining three other prints of the film and praying that for such breach Nepomuceno be condemned to pay damages in the sum of P10. S. brought the present action on July 19. by the respondent Court of Appeals is hereby REVERSED and SET ASIDE. Respondents. chanroblesvirtualawlibrary chanrobles virtual law library The defendants. PICTURES. in their separate answers. L-9075 January 29. Inc.the Decision promulgated on January 23.R. Pictures. P5. upon the notes being dishonored. Sevilla for the total amount of the notes with legal interest from the filing of the complaint. S. GUTIERREZ DAVID. V.000. 1975 as well as the Resolution issued on July 31.: This is an appeal by certiorari from a judgment of the Court of Appeals.00. INC. 1947 and the others successively on the 10th of the following months. the picture mentioned was filmed. Lina Sevilla. 1948 in the Court of First Instance of Manila against S.. As it was found that there was still due Nepommuceno the sum of P6. No. represented by Ramon S.00. The private respondent. Santos. the latter. chanrobles virtual law library chanroblesvirtualawlibrary chanrobles virtual law library It appears that on April 22. chanroblesvirtualawlibrary chanrobles virtual law library The aforesaid notes having been subsequently assigned to RAMCAR.000.000. V. and that Nepomuceno had no right to make such assignment. set up the defense that the notes were void for want of consideration.. Tourist World Service. Sevilla and its president and general manager Arsenio J. Defendants Sevilla further disclaimed liability of the contract alleging that the same was signed by him as Treasurer and Director of S. In their amended third-party complaint defendants further alleged that the negative of the firm "Dalawang Anino" was delivered to Nepomuceno which the latter failed and refused to return. vs. 1975. On November 10. as and for exemplary damages. V. the former undertook to furnish to the latter "a complete service of equipment and personnel" for the filming of a picture entitled "Dalawang Anino" and to release to the said corporation six prints of said picture for exhibition in the different theaters.000. after the picture had been exhibited in Manila and in the provinces. and the sum of P5. EN BANC G.00 was to be paid in installments. S. 1960 S. P1.00. the sum of P10. In fulfillment of the contract. in turn. and RAMOS S.

contrary to petitioners' first assignment of error . from the return of the contract between the parties for the filming or the pictures "Dalawang Anino". petitioners in their petition for review state that purpose in filing those motions was to prove some allegations in their answers. the Court of Appeals found that . chanroblesvirtualawlibrary chanrobles virtual law library After going over the record. petitioners cannot now for the first time on appeal claim for damages based on the alleged delay of the return of the film negative. The motions. the defendants brought the case to this Court thorough the appeal by certiorari..000. The pleadings. We find. S. Thus. jointly and severally. negative which was property raised before it.. but not the raw materials (films) to . chanroblesvirtualawlibrary chanrobles virtual law library The above decision having been affirmed by the Court of Appeals. Such being the case. Pictures. as well as the denial of their other motion for the admission of additional documentary evidence for attachment to the record.. the trial court rendered judgment condemning the defendants to pay the plaintiffs RAMCAR. that the appealed decision holding the petitioners liable on the promissory notes is based on sufficient findings of fact.they were in fact allowed to introduce evidence in support of their alleged right to recover the film negative. petitioners as third party plaintiffs asked for damages only on the ground that Nepomuceno breached their contract by failing to release three additional prints." and (2) "in not making complete finding of fact and law in its decision." What petitioners. as well as in the Court of Appeals. the motions were filed after the case was submitted for decision so that their grant or denial was purely discretionary upon the court. can be clearly gleamed that what Nepomuceno undertook to provide was the equipment and facilities of the studio the technical personnel etc. In the circumstances of the case. chanroblesvirtualawlibrary chanrobles virtual law library Under that second assignment of error. petitioners allege that the Court of Appeals did not make a complete finding of fact and law. petitioners themselves admit that "they introduced evidence to show ownership of this film negative and to show proof of the delivery thereof to the respondents. V. as gleaned from their arguments.00 with legal interest from the filing of the action and dismissing the third party complaint against Jose Nepomuceno as well as the counterclaim filed by defendant S. Thus. the sum of P6. on the other hand.". In this connections. chanroblesvirtualawlibrary chanrobles virtual law library It would seem that under the first assignments of error petitioners are also claiming for damages based on the alleged delay of the return of the film negative. contending that the Court of Appeals erred (1) "in not permitting petitioners to introduce evidence in support of their right to recover the film negative as well as to ask for damages for the delay of the return thereof. dated April 22. chanroblesvirtualawlibrary chanrobles virtual law library After hearing. show that their claim to the film negative is alleged only in their third-party complaints. in reality. sought the introduction of evidence which would establish damages allegedly suffered by the petitioners as a result of Nepomuceno's alleged breach of contract and had nothing to do with their claim for the return of the film negative. is the denial by the trial court of their motion for the admission of their second amended answer and to present additional evidence on the execution of the promissory notes and on damages they suffered. 1947. we hold that the Court of Appeals correctly sustained the action of the trial court denying the said motions. its decision is void. however.which appears to be directed against the trial court . however. are questioning. Their witnesses testified on the matter and portions of such testimony are even quoted in their own brief. They claim that as court did not resolve the question of the return of the film. At any rate. What is more. we find that.accordingly prayed that Nepomuceno be ordered to return said negative. it is to be noted that in the trial court.

000. worth at least P25. which was over and above or despite the alleged violations of contract by Nepomuceno.000. such reason being the failure of the latter to provide and supply the raw materials needed for the making of the three additional prints. This failure. 1995 . after hearing of the case before this Court. however. which where to be furnished and supplied by defendant corporation. the questions of law may be raised.. but the case is hereby ordered remanded to the Court of Appeals for further proceedings insofar as the controversy on the film negative is concerned. What is more. after a formal accounting and liquidation of the transaction was made.00. is not before us. chanroblesvirtualawlibrary chanrobles virtual law library It cannot be ascertained. therefore. petitioners in this appeal no longer question their liability on the promissory notes. The pretense. from the decision appealed from just why petitioners' claim for the return of the film negative was denied. if necessary) by the parties. chanroble EN BANC G. The latter. the decision appealed from petitioners liable on the promissory notes is affirmed. on the other hand. Needless. in our opinion. which showed an unpaid balance of P6. On the other hand. has also made allegations. we think the interest of justice would be better served if the case were remanded to the Court of Appeals for further proceedings. The transcript containing the testimony of the witnesses. averred that petitioners did not present sufficient evidence to establish his liability to return the negative film as it had not been shown that he was in possession thereof. it is of record that the question regarding the return of the negative was one of the issues squarely raised in the proceedings below and. the promissory notes in question were executed on November. Neither does said decision . is not a reversible error. No.be used for the making of the picture. 1947. however. V.00. belonged to S. resolution of these conflicting claims necessarily involve an examination of the probative value of the evidence presented (or still be presented. 116183 October 6.00 not only shows the consideration for the drawing of the notes but also a recognition of the indebtedness on the part of the makers thereof. insofar as petitioners' claim for the return of the film negative is concerned. chanroblesvirtualawlibrary chanrobles virtual law library Wherefore. it was apparently because it was deemed it unjustified or without merit. Petitioners alleged that the negative.state facts essential to the determination of that claim.. factual in nature. regarding the negative film. S. however. and the execution of said promissory notes for the satisfaction of said P6. for that matter.00. chanroblesvirtualawlibrary chanrobles virtual law library It is true that the Court of Appeals in its decision did not expressly rule on petitioners claim in their third party complaints for the return of the film negative. In the circumstances. 10. particularly since petitioners had already called the attention of the appellate court in that regard in their motion for reconsideration.or that of the trial court . the parties had already presented their evidence. that the decision sought to be reviewed does not comply with the rule that a judgment must state the facts on which it is based cannot be sustained. Counsel for the respondent RAMCAR.R. which tend to defeat petitioners' claim for its return. Inc. If that court denied their motion. Picture and that it had been delivered to respondent Nepomuceno. Anyway. to say. and the uncontradicted testimony of Nepomuceno plainly points out the reason why three prints only of the picture were actually released and delivered to defendants corporation. Without pronouncement as to costs.

Knowing fully well that. Armand Fabella. vs. petitioners. had expired one year after their respective temporary appointments. ARTHUR V. as temporary employees whose terms of office.SEC. JAIME ABON. Julian J. EDGARDO MERCADO. they insist on a perceived. SERVANDO SACUEZA. in his capacity as Secretary of Education. the dramatis personae in this case include: DECS Secretary Ricardo T. dated January 31. The case for reinstatement which was filed before respondent Judge Salvador P. JR. Questioned in effect by the petitioners is only the portion of the judgment ordering the reinstatement of private respondent Rosario V. Gloria. Actually. Loleng. VALLE.. RODEL PESTANO. LENI V. involved the Hon. VIRGILIO R. ELLO. LOLENG. Regional Trial Court of Pasay City. Gloria. 1994 and June 29. LEONY P. HERMOSISIMA. JOIE ARCEO. 1992. JULIAN J. PESTANO. Cerillo to the position of "Coordinator for Extension Services". Presiding Judge of Branch 113. RODRIGUEZA. right to reinstatement. Jr.. Cerillo was perpetrated by Col. SALVADOR P. J. In view of the resignation of Secretary Fabella. Ricardo T. Gloria. on December 31. Presiding Judge of Branch 113. Loleng. Col. and the Board of Trustees of the PSCA 1. in his capacity as Officer-in-Charge of PSCA.. HON. Julian J. DIMAYUGA. RAMOS. The judgment of the lower court. Jr. the Hon. Jr. that is.. NILO B. Culture & Sports and Chairman of the Board of Trustees of the Philippine State College of Aeronautics (PSCA). de Guzman. and BOARD OF TRUSTEES of PSCA. Loleng. AQUINO. Consequently. Isidro Cariño who was the DECS Secretary. devolved on the incumbent Secretary. Julian J. the Hon. GLORIA. Jr. as a matter of fact. JR. filed by Hon. Armand Fabella as defendant. the act of effecting the termination of the appointment of Rosario V. and NELSON SACUEZA. the duty and obligation to question the decision aforesaid of Judge Salvador P. albeit mistaken. RICARDO T.. JAIME C. PSCA Board of Trustees Chairman Col. respondents. Jr. SHIRLEY PESTANO. with the end in view of nullifying the Decision 2 and Order 3 of respondent Judge Salvador P. PONEGAL. Regional Trial Court of Pasay. 1994. while it was the Hon. JUN JAY PARMA. Jr. of the Pasay City Regional Trial Court was instituted during the incumbency of the succeeding DECS Secretary. CRISTINA BULADO. Ricardo T. under Rule 65 of the Revised Rules of Court. SENDIN. and the PSCA Board of Trustees created under Republic Act . DE GUZMAN. ANDREA A. JR.: Intransigence of private respondents in maintaining a patently indefensible position sparked this long drawn out controversy. Metro Manila. RIZALDO O. whether by contract or by the tenor of their appointments. CERILLO. de Guzman. respectively. ROSARIO V. BENIGNO T. Before this Court is a Petition for Certiorari. in his capacity as Secretary of Education. de Guzman. Culture and Sports (DECS) and as Chairman of the Board of Trustees of the Philippine State College of Aeronautics (PSCA).. in his capacity as Officer-in-Charge of the PSCA.

Republic Act No. The question at issue is one of law: Is private respondent Rosario V. specifically. to appoint. Jr. Private respondent Rosario V. Had private respondent Rosario V. Cerillo. 1992. Subsequently. as it did appoint. except the members of the Board of Trustees themselves and the President of the college. 1977. 1992. the Board of Trustees is vested with authority. docketed as Civil Case No. dated March 25. they lacked appropriate civil service eligibilities or otherwise failed to meet the necessary qualification standards for their respective positions. 91-026 on April 1. In line with this authority. 1992. Thus. 10049. The Board of Trustees likewise was the governing body of the PSCA. Under the said decree. It converted PAFCA into a state college to be known as the Philippine State College of Aeronautics (PSCA). the PAFCA Board of Trustees issued Resolution No. 1992. however. Petitioner Col. On March 24. Loleng inform private respondents that they shall be deemed separated from the service upon the expiration of their temporary appointments. as public respondent. 92-017 by reason of loss of confidence.. 1992. The complaint in effect prayed that then DECS Secretary Armand Fabella complete the filling up of positions for Board of Trustees and order . 1992. On June 25. Jr. Cerillo was relieved as Board Secretary of the PAFCA in accordance with Board Resolution No. and RTC Executive Judge Salvador P. among others. with Back Wages and Damages". 1992. that is. This appointment went along the line enunciated by the Civil Service Commission in a letter. herein private respondents were issued only temporary appointments because at the time of their appointment. officials and employees of the college. 7605.. which declared that "All faculty/administrative employees are also subject to the required civil service eligibilities". as petitioners. Julian J. 1992 to December 31. private respondent Rosario V. de Guzman. she was designated as "Coordinator for Extension Services". 7605 was enacted into law. Cerillo not been summarily dismissed as Board Secretary on March 24. rules and regulations. Only on December 7.No. 1078 on January 26. the herein private respondents filed before the Regional Trial Court of Pasay City. 1992 did Col. and the named private respondents who were the petitioners in the court below. from January 1. 4 The letter emphasized that temporary appointments were good and renewable only up to 1992. in accordance with pertinent civil service law. 1993. a "Petition for Mandamus and Reinstatement. The power to make appointments was retained by the Board. barely five months after the lapse of the terms of their temporary appointments as determined by the PSCA administration. 1991. de Guzman. The facts of the case are not in dispute. her temporary appointment as such was supposed to have lasted until December 31. was issued a one-year temporary appointment to the position of Board Secretary II of PAFCA (now PSCA). Jr. presided over by respondent Judge Salvador P. On June 3. Cerillo entitled to reinstatement to the position of "Coordinator for Extension Services"? Private respondents were employees of the Philippine Air Force College of Aeronautics (PAFCA) which was created by virtue of Presidential Decree No. remained as Officer-in-Charge by virtue of a designation made anew by then DECS Secretary Isidro Cariño on June 8. Loleng.

the Board of Trustees to reinstate the respondents in the case at bench to their respective
positions.
In their Answer, 5 the herein petitioners opposed the petition upon the ground that mandamus
will not lie to compel reinstatement because the reappointment prayed for is discretionary on
the part of the appointing power. Besides, it was the claim of Secretary Fabella that a writ of
mandamus should be unavailing to private respondents because of their failure to exhaust
administrative remedies.
We find the petition to be impressed with merit.
I
The judgment of respondent Judge Salvador P. de Guzman, Jr. which orders the
reinstatement of Ms. Rosario V. Cerillo to the position of "Coordinator for Extension Services"
is patently improper because it finds no support as to facts and the law. Respondent Cerillo,
although temporarily extended an appointment as Board Secretary II, was dismissed
therefrom because of loss of confidence. This dismissal was neither contested nor appealed
from by Ms. Cerillo. There is no question, therefore, that her dismissal as Board Secretary II
could not have been the subject of the petition for mandamus and reinstatement filed before
respondent Judge. The fact is that private respondent's assignment as "Coordinator for
Extension Services" was a mere designation. Not being a permanent appointment, the
designation to the position cannot be the subject of a case for reinstatement.
Furthermore, even granting that Ms. Cerillo could be validly reinstated as "Coordinator for
Extension Services", her reinstatement thereto would not be possible because the position is
not provided for in the PSCA plantilla. The PSCA could not have made any valid appointment
for this inexistent position. This could very well be the reason why she was merely designated
as Coordinator. As a mere designee, she could not have acquired any right to the position
even if the position existed.
At any rate, a mere "designation" does not confer upon the designee security of tenure in the
position or office which he occupies in an acting capacity only 6.
II
Should the object of private respondent Cerillo in prosecuting the case in the court below be
her reinstatement to the position of Board Secretary II, the reinstatement prayed for appears
to be impermissible. In the first place,
Ms. Cerillo had already been dismissed from this position for loss of confidence. She did not
contest this dismissal possibly because the position of Board Secretary II is primarily
confidential and the Board of Trustees, when finding her, the incumbent to the position, to be
wanting in faithfulness and integrity dismissed her for that reason alone. She accepted the
dismissal without any ripple and when designated as Coordinator for Extension Services, she
indicated acceptance by performing the acts called for by the designation.
The quarrel between the private respondents, on the one hand, and the PSCA administration,
on the other, came about in this manner:

The Civil Service Commission, mandating a policy, wrote petitioner
Col. Julian J. Loleng, Jr. a letter 7 mandating that temporary appointments of
officers/employees of the PSCA were to last only up to December 31, 1992. For a better
perspective, We quote a pertinent portion of the letter:
xxx xxx xxx
Please note that temporary appointments last only for a maximum of one (1) year and all
personnel appointed in a temporary capacity can be replaced any time by a civil service eligible.
Since you have just been recently covered by the Civil Service Law and rules, this Field Office
approved all your temporary appointments subject to yearly renewal up to 1992 only.
Subsequent appointments should strictly conform with civil service policies. You may, therefore,
advise all your temporary personnel to take civil service examinations in order to be eligible for
appointment.

This letter was implemented by Col. Julian J. Loleng, Jr. Objecting thereto, private
respondents pointed out to the PSCA administration that, in Resolution No. 91-026, dated
April 1, 1991, the Board of Trustees declared that all faculty/administrative employees of the
college, while required to acquire civil service eligibilities under pertinent civil service law,
rules and regulations, must exert effort to acquire civil service eligibilities within a period of
three years from their temporary appointments. This, the private respondents believe should
be taken to mean that, should they acquire civil service eligibilities within that period of three
years, they cannot be terminated from the service.
The fact that private respondent Cerillo passed the requisite Civil Service Examination after
the termination of her temporary appointment is no reason to compel petitioners to reappoint
her. Acquisition of civil service eligibility is not the sole factor for reappointment. Still to be
considered by the appointing authority are: performance, degree of education, work
experience, training, seniority, and, more importantly, as in this case, whether or not the
applicant enjoys the confidence and trust of the appointing power. As We said earlier, the
position of Board Secretary II, by its nature, is primarily confidential, requiring as it does "not
only confidence in the aptitude of the appointee for the duties of the office but primarily close
intimacy which ensures freedom from misgivings of betrayals of personal trust or confidential
matters of state." 8 In other words, the choice of an appointee from among those who
possessed the required qualifications is a political and administrative decision calling for
considerations of wisdom, convenience, utility and the interests of the service which can best
be made by the Head of the office concerned. 9
It cannot be overemphasized that the PSCA Board Resolution No. 91-026 must yield to the
Civil Service Commission policies on the issuance of temporary appointments. When the Civil
Service Commission directed that temporary appointments were to be effective only up to
1992, it did so in pursuance of the general purpose of the civil service law, as stated under
Section 2 of Republic Act No. 2260, as amended, which is "to ensure and promote the
constitutional mandate regarding appointments only according to merit and fitness and to
provide within the public service a progressive system of personal administration to ensure
the maintenance of an honest and
efficient progressive and courteous civil service in the Philippines. 10 For that matter, it is
vested with the function, among others, to promulgate policies, standards and guidelines for
the civil service and adopt plans and programs to promote economical, efficient and effective

personnel administration in the government.

11

We hold that reappointment to the position of Board Secretary II is an act which is
discretionary on the part of the appointing power. Consequently, it cannot be the subject of an
application for a writ of mandamus.
Reinstatement is technically issuance of a new appointment which is essentially discretionary,
to be performed by the officer in which it is vested according to his best lights, the only
condition being that the appointee should possess the qualifications required by law. 12 Such
exercise of the discretionary power of appointment cannot be controlled, not even by the
Court as long as it is exercised properly by the appointing authority. 13
It is Our holding that the questioned order of reinstatement amounts to an undue interference
by the Court in the exercise of the discretionary power of appointment vested in the PSCA
Board of Trustees.
Surprisingly, the Court a quo, while upholding the right of private respondent Cerillo to a
reappointment, adhered to this pontification by stating that:
The appointment of the petitioners to their former positions is not a matter of right; rather, it is a
matter of discretion on the part of the respondents. Mandamus cannot be availed of to compel
anyone to exercise his discretion absent any showing of grave abuse of discretion.

III
The termination of the services of private respondents was proper and legal, it being the
consequence of the Board of Trustees' power to appoint. The view of respondent Judge,
however, is that there was no termination ordered. Either the employees' contracts lapsed or
their temporary appointments were abrogated by circulars from the Civil Service Commission.
This, as a necessary consequence of the transition from the Philippine Air Force College of
Aeronautics (PAFCA) to the Philippine State College of Aeronautics (PSCA).
We agree with respondent Judge's disquisition on this point:
To the question was the termination of the services of the petitioners legal or not?, the only
answer is there was not termination to speak of. Termination presupposes an overt act
committed by a superior officer. There was none whatsoever in the case at bar. At most, Col.
Julian (Loleng) gave notice to the petitioners of the expiration of their respective contracts,
Petitioners appointment or employment simply expired either by its very own terms, or because
it may not exceed one year, but most importantly because the PAFCA was dissolved and
replaced by the PSCA. The notice given by Col. Loleng to the petitioners seem to have been
misunderstood by them as an act of dismissal which as they correctly state, belongs to the
Board of Trustees alone.

IV
Considering Our finding that there is merit to the petition, the issue as to whether attorney's
fees and costs of litigation should be awarded to private respondent Rosario V. Cerillo as
adjudged in the questioned decision of respondent Judge has become moot and academic.
At any rate, the Court holds that the said award could not have been imposed because, while

it was directly ordered in the dispositive portion of the decision, it was neither discussed nor
justified in the body of the questioned decision. Clear on this point is Our decision in
Policarpio vs. Court of Appeals, 194 SCRA 129, 742, [1991]: "The Court had occasion to
state that the reason for the award of attorney's fees must be stated in the text of the
decision, otherwise, if it is stated only in the dispositive portion of the decision, the same shall
be disallowed." This ruling We reiterated in the case of Koa vs. Court of Appeals, 219 SCRA
541, 549, [1991], citing Central Azucarcra de Bais vs. Court of Appeals, 188 SCRA 328, 340,
where it was stated that "The award of attorney's fees must be disallowed for want of factual
and legal premise in the text of the decision rendered by the court of origin and the appellate
court as well."
WHEREFORE, the petition is GRANTED. The challenged decision, dated January 31, 1994,
insofar as it ordered the reinstatement of
Ms. Rosario V. Cerillo and the payment to the latter of back wages and attorney's fees, and
the Order, dated June 29, 1994, of respondent
Judge Salvador P. de Guzman, Jr. are hereby declared null and void and ordered set aside.
The temporary restraining order/preliminary injunction heretofore issued is hereby made
permanent.
SO ORDERED.

Gloria v. De GuzmanFacts:Private respondents were employees of the Philippine Air Force
College of Aeronautics(PAFCA) which was created by virtue of Presidential Decree No. 1078 on
January 26, 1977. Underthe said decree, the Board of Trustees is vested with authority,
among others, to appoint, as itdid appoint, officials and employees of the college, except the
members of the Board of Trusteest h e m s e l v e s a n d t h e P r e s i d e n t o f t h e c o l l e g e . I n l i n e
with this authority, the PAFCA Board of T r u s t e e s i s s u e d R e s o l u t i o n
No. 91-026 on April 1, 1991, which declared that
" A l l faculty/administrative employees are also subject to the required civil service
eligibilities", ina c c o r d a n c e w i t h p e r t i n e n t c i v i l s e r v i c e l a w , r u l e s a n d
regulations. Thus, herein privater e s p o n d e n t s w e r e i s s u e d o n l y
t e m p o r a r y a p p o i n t m e n t s b e c a u s e a t t h e t i m e o f t h e i r appointment,
they lacked appropriate civil service eligibilities or otherwise failed to meet theneces sary
qualification standards for their respective positions. Rosario V. Cerillo, specifically, was
issued a one-year temporary appointment to the position of Board Secretary II of
PAFCA(now PSCA), that is, from January 1, 1992 to December 31, 1992. This
appointment went alongthe line enunciated by the Civil Service Commission in a letter, dated
March 25, 1992.
The letteremphasized that temporary appointments were good and renewable only up to 1992. On
March24, 1992, Rosario V. Cerillo was relie ved as Board Secretary of the PAFCA in
accordance withBoard Resolution No. 92-017 by reason of loss of confidence.
Subsequently, however, she was designated as "Coordinator for Extension Services". On June 3,
1992, Republic Act No. 7605 wasenacted into law. It converted PAFCA into a state college to
be known as the Philippine StateCollege of Aeronautics (PSCA). The Board of Trustees

likewise was the governing body of the P S C A . T h e p o w e r t o m a k e a p p o i n t m e n t s w a s
r e t a i n e d b y t h e B o a r d . P e t i t i o n e r C o l . J u l i a n J . Loleng, Jr. remained as Officer-inCharge by virtue of a designation made anew by then DECS Secretary Isidro Cariño on June 8,
1992. Only on December 7, 1992 did Col. Loleng inform privaterespondents that they shall be
deemed separated from the service upon the expiration of their t e m p o r a r y
appointments. Had Rosario V. Cerillo not been summarily dismissed as
B o a r d Secretary on March 24, 1992, her temporary appointment as such was supposed to have
lasteduntil December 31, 1992. On June 25, 1993, barely five months after the lapse of the
terms of t h e i r t e m p o r a r y a p p o i n t m e n t s a s d e t e r m i n e d b y t h e P S C A
a d m i n i s t r a t i o n , t h e p r i v a t e respondents filed before the RTC of Pasay City, a
"Petition for
Mandamus
and Reinstatement,w i t h B a c k W a g e s a n d D a m a g e s " , T h e c o m p l a i n t i n e f f e c t p r a y e d
t h a t t h e n D E C S S e c r e t a r y Armand Fabella complete the filling up of positions for Board of
Trustees and order the Board of Trustees to reinstate the respondents in the case at bench to their
respective positions. In theirAnswer,
the petitioners opposed the petition upon the ground that
mandamus
w i l l n o t l i e t o compel reinstatement because the reappointment prayed for is
discretionary on the part of theappointing power. Besides, it was the claim of Secretary Fabella
that a writ of
mandamus
shouldbe unavailing to private respondents because of their failure to exhaust administrative
remedies.After trial, the court ruled in favor of the relieved employees.Issue: Is Rosario V. Cerillo
entitled to reinstatement to the position of "Coordinator for ExtensionServices"?
Held:N o . C e r i l l o , a l t h o u g h t e m p o r a r i l y e x t e n d e d a n a p p o i n t m e n t a s B o a r d
S e c r e t a r y I I , w a s dismissed therefrom because of loss of confidence. This dismissal was
neither contested nora p p e a l e d f r o m b y M s . C e r i l l o . T h e r e i s n o q u e s t i o n ,
t h e r e f o r e , t h a t h e r d i s m i s s a l a s B o a r d Secretary II could not have been the subject of
the petition for mandamus and reinstatementfile d before respondent Judge. The fact is
that private respondent's assignment as "Coordinato rf o r E x t e n s i o n S e r v i c e s " w a s a
m e r e d e s i g n a t i o n . N o t b e i n g a p e r m a n e n t a p p o i n t m e n t , t h e designation to the position
cannot be the subject of a case for reinstatement. Even granting thatMs. Cerillo could be validly
reinstated as "Coordinator for Extension Services", her reinstatementthereto would not be possible
because the position is not provided for in the PSCA plantilla. ThePSCA could not have made any
valid appointment for this inexistent position. This could very wellbe the reason why she was merely
designated as Coordinator. As a mere designee, she could noth a v e a c q u i r e d a n y r i g h t t o t h e
position even if the position existed. At any rate, a mere
"designation" does not confer upon the designee security of tenure in the position or office whichhe
occupies in an acting capacit y only.The fact that Cerillo passed the requisite Civil
ServiceE x a m i n a t i o n a f t e r t h e t e r m i n a t i o n o f h e r t e m p o r a r y a p p o i n t m e n t
i s n o r e a s o n t o c o m p e l petitioners to reappoint her. Acquisition of civil
s e r v i c e e l i g i b i l i t y i s n o t t h e s o l e f a c t o r f o r reappointment. Still to be considered by
the appointing authority are: performance, degree of education, work experience,
training, seniority, and, more importantly, as in this case, whetheror not the applica nt
enjoys the confidence and trust of the appointing power. The position of B o a r d

Secretary II, by its nature, is primarily confidential, requiring as it
d o e s " n o t o n l y confidence in the aptitude of the appointee for the duties of
t h e o f f i c e b u t p r i m a r i l y c l o s e intimacy which ensures freedom from misgivings of
betrayals of personal trust or confidentialmatters of state." In other words, the choice of
an appointee from among those who possessed the required qualifications is a political and
administrative decision calling for considerations of wisdom, convenience, utility and the
interests of the service which can best be made by the Head of the office concerned.
Reappointment to the position of Board Secretary II is an act whichis discretionary on the part of the
appointing power. Consequently, it cannot be the subject of anapplication for a writ of mandamus.
Reinstatement is technically issuance of a new appointmentwhich is essentially discretionary, to
be performed by the officer in which it is vested according to his best lights, the only
condition being that the appointee should possess the qualifications required by law. Such
exercise of the discretionary power of appointment cannot be controlled,not even by the Court as long
as it is exercised properly by the appointing authority.

EN BANC

JOSE M. CARINGAL,
Petitioner,

- versus -

PHILIPPINE CHARITY SWEEPSTAKES OFFICE (PCSO),

Respondent.

G.R. No. 161942

Present:

Promulgated:

October 13, 2005
x--------------------------------------------------------------------------------------------------------

-----x D E C I S I O N SANDOVAL-GUTIERREZ,

J.:

A

permanent

appointment in the career service is issued to a person who has met
the requirements of the position to which the appointment is made in
accordance with the provisions of law, the rules and the standards
promulgated pursuant thereto.[1]
civil service eligible.[2]

It implies that the appointee is a

Thus, while the appointing authority has the

discretion to choose whom to appoint, the choice is subject to the
caveat that the appointee possesses the required qualifications.[3]
For our resolution is the instant petition for review on certiorari
under Rule 45 of the 1997 Rules of Civil Procedure, as amended, filed
by Atty. Jose M. Caringal, petitioner, assailing the January 27, 2004
Decision[4] of the Court of Appeals in CA-G.R. SP No. 66695, entitled
“JOSE M. CARINGAL vs. PHILIPPINE CHARITY SWEEPSTAKES OFFICE, ET
AL.”
On December 9, 1998, petitioner was appointed Assistant
Department Manager II in the Philippine Charity Sweepstakes Office

(PCSO), respondent.

On December 18, 1998, then PCSO Chairman,

Justice Cecilia Munoz-Palma, instructed him to assume the duties and
responsibilities of Assistant Manager in the Legal Department.
Subsequently, Chairman Ricardo Golpeo replaced Justice
Munoz-Palma.
139

On May 16, 2000, he issued Special Order No. 2000-

re-assigning

petitioner

to

the

Assets

and

Investment

Department.
On May 18, 2000, petitioner sent a Memorandum to Chairman
Golpeo and Ms. Maripaz Magsalin, Assistant General Manager for
Administration,

protesting his re-assignment, the same being a

constructive dismissal.
On May 19, 2000, Director Arnel Del Monte of the Civil Service
Commission (CSC) wrote Manager Francisco Swin of the PCSO
Administrative Department, stating that his office inadvertently
omitted to stamp on petitioner’s appointment the collatilla that “the
appointee does not have security of tenure until he obtains a
CES eligibility.”

However, Director Del Monte could not effect the necessary
correction since petitioner has the original copy of his appointment.
On June 16, 2000, petitioner filed with the CSC an administrative
complaint for constructive dismissal and culpable violation of the
Constitution on civil service appointments against Chairman Golpeo
and Assistant General Manager Magsalin.
On June 22, 2000, the PCSO Board of Directors issued Resolution
No. 793 terminating the employment of petitioner on the ground that
he does not have security of tenure as he does not possess a Career
Executive Service (CES) eligibility.
On June 28, 2000, Chairman Golpeo issued a Memorandum to
petitioner informing him that his temporary appointment as Assistant
Department Manager II of the Legal Department is terminated
effective June 30, 2000, in accordance with Sections 4 and 13 of Rule
5 on Appointments under the Omnibus Rules Implementing Book 5 of
Executive Order No. 292.[5]
Meantime, on February 15, 2001, the CSC issued Resolution No.
01-0444 dismissing petitioner’s administrative complaint against

Chairman Golpeo and Assistant General Manager Magsalin for lack of
merit. The CSC held:
“The sole issue to be resolved in the case at bar is whether or not
the separation of Jose Caringal from the service as Assistant Department
Manager II, Legal Department, PCSO, was unlawful.
After a careful evaluation of the records, the Commission rules in
the negative.
It must be stressed that Jose Caringal’s position is a third level
position. As such, the qualifications for the position are as follows:
POSITION
LEVEL
EDUCATION
EXPERIENCE
TRAINING
ELIGIBILITY

: Assistant Department Manager II
: 3
: Bachelor’s Degree
: 3 years of supervisory experience
: None
: Career Service Executive Eligibility
(CSEE)/Career Executive Service (CES)

Records show that Caringal does not possess the required
eligibility for the position. Thus, he does not have security of tenure
and his employment may be terminated at any given time by the
appointing authority and be replaced by a CES eligible.
The appointment of Atty. Lauro Patiag, a CES eligible, vice Atty.
Jose Caringal, the herein appellant, was more in accord with the existing
law and jurisprudence.
In particular, the pertinent provision that is applicable to the
present case is Rule V specifically Section 4 thereof of the Omnibus
Rules Implementing Book V of Executive Order No. 292 which
provides, that:
‘Section 4. Except as otherwise provided herein, a
person who meets all the requirements of the position including
the appropriate civil service eligibility shall be appointed to a
position in the first and second levels. However, when the
immediate filing of a vacancy becomes necessary, taking into
account the public interest, and a person with an appropriate civil
service eligibility but who meets the other requirements of the

2001.’ xxx xxx xxx It must be emphasized that if an appointment to a third level position is issued to one who does not meet the eligibility requirement. the Appellate Court issued the assailed Decision dismissing the petition and affirming the Resolutions of the CSC. Such termination was valid and lawful.R. Lauro Patiag. Caringal to the position of Assistant Department manager II was permanent in status. On January 27. the appointment shall be approved but the appointee is not entitled to the mantle of security of tenure. the termination of appointment of Caringal was precipitated by the appointment of Atty. as amended.”[6] On July 16.[7] Petitioner then filed with the Court of Appeals a petition for certiorari[8] under Rule 65 of the 1997 Rules of Civil Procedure. On this basis. 66695. Hence.position may be appointed. the absence of the appropriate eligibility makes the appointment temporary in nature. No. 2004. His appointments shall be temporary for a period of not more than 12 months and he may be replaced at any time with one who has an appropriate civil service eligibility. xxx xxx xxx In brief. thus: “Undisputably. SP. to the position temporarily held by Caringal. the original appointment of Atty. he . docketed as CA-G. albeit there were variation in the wordings of the attestation of the Commission. the CSC denied petitioner’s motion for reconsideration. a CES eligible.

Caringal was made a year and four months after its issuance cannot in any manner mean that . Afterwards. With Atty. he could be replaced at any time by a more qualified appointee. experience and training requirements for the position to which he is being appointed except for the appropriate eligibility but only in the absence of a qualified eligible actually available. a few days after the termination of his employment. it must be stressed that the position of Assistant Department Manager II requires Career Executive Service eligibility.’ In applying the provision of law cited above. Caringal does not entitle him to reinstatement to his position with back salaries. the PCSO appointed Atty. which is conferred after passing the CES examination. The status of Mr. the failure to notify Atty. 40. made by the President upon recommendation of the CES Board. Section 2 (a) of the Omnibus Rules On Appointments and Other Personnel Actions states: ‘a. confers on him security of tenure in the CES. Patiag to the position he vacated. xxx xxx xxx Nevertheless. Section 2(b) of the Omnibus Rules on Appointments And Other Personnel Actions (Memorandum Circular No. reckoned from the date it was issued but the appointee may be replaced sooner if a qualified eligible who is willing to accept the appointment becomes actually available. In this regard. the established law provides that security of tenure can only be enjoyed when a person has complied with all the requirements of the position to which he is being appointed and civil service eligibility necessary for a permanent appointment. This process completes membership in the CES and most importantly. On July 3. rules and standards promulgated in pursuance thereof. including the appropriate CES eligibility. who. Patiag. and provided the examinee complies with the other requirements prescribed by the Board.’ xxx xxx xxx The fact that the correction in the appointment of Atty. including the appropriate eligibility required. 2000. The appointment shall not exceed twelve months.asserts security of tenure and argues that he can only be replaced for just cause. the holder of the CES position may qualify for appointment to a CES rank. Lauro A. 1998) provides: ‘Temporary – issued to a person who meets the education. in this case. Patiag’s appointment was permanent since he possessed all the requirements of the position. Permanent – Issued to a person who meets all the minimum qualification requirements of the position to which he is being appointed. In this regard. S. as certified to by the Civil Service Regional Director or Field Officer. Caringal’s appointment being merely temporary. in accordance with the provisions of law. was Atty.

” Hence. all non-Carrer Executive Service Officials (non CESO) occupying Career Executive Service (CES) Positions. shall continue on hold-over capacity. and (3) the Court of Appeals erred in not finding that there was discrimination on the part of the PCSO against him. the petition is DENIED (sic). 010444 dated Febraury 15. This is obvious from the directive of the Office of the President. To perform their duties and discharge their responsibilities until their successors have been appointed and have qualified. 1999) xxx xxx xxxx WHEREFORE. . No costs. 2001 and Resolution No.a replacement beyond this period is barred by laches. (2) the CSC did not follow its own rules. Although lacking CES eligibility. Petitioner contends that: (1) he was denied his day in court. is qualified for the position because he is a CES eligible. and the CSC followed its own rules. Resolution No. the present petition.’ (Memorandum Circular No. that his successor. Respondent PCSO. 2001 of the Civil Service Commission are AFFIRMED. Atty. 35 dated June 30. 011268 dated July 26. which holds: ‘Pursuant to existing laws and jurisprudence. Lauro Patiag. he may continue to serve beyond a one-year period provided no one has qualified. SO ORDERED. maintains inter alia that petitioner was separated from the service because he does not possess the CES eligibility required by law. on the other hand.

. the acquisition of security of tenure which presupposes a permanent appointment is governed by the Rules and Regulations promulgated by the CES Board. xxx xxx xxx Appointment to CES Rank Upon conferment of a CES eligibility and compliance with the other requirements prescribed by the Board. In the career executive service. including the appropriate eligibility prescribed. The petition must fail. Section 27 (1). Conferment of CES eligibility is done by the Board through a formal Board Resolution after an evaluation is done of the examinee’s performance in the four stages of the CES eligibility examinations. of the Civil Service Law[9] provides: (1) Permanent status. Appointment to a CES rank is made by the President upon the recommendation of the Board.[10] thus: Career Executive Service Eligibility Passing the CES examination entitles the examinee to a conferment of a CES eligibility and the inclusion of his name in the roster of CES eligibles. in accordance with the provisions of law. an incumbent of a CES position may qualify for appointment to a CES rank. rules and standards promulgated in pursuance thereof.The issues boil down to whether petitioner’s separation from the service is in accordance with the Civil Service law and rules. – A permanent appointment shall be issued to a person who meets all the requirements for the position to which he is being appointed. This process completes the official’s membership in the CES and most importantly. confers on him security of tenure in the CES.

[12] we held: “It is settled that a permanent appointment can be issued only “to a person who meets all the requirements for the position to which he is being appointed. therefore.[11] In Achacoso v. he has no security of tenure as his appointment is merely temporary.” conformably to established jurisprudence.As clearly set forth in the foregoing provisions. xxx xxx xxx The mere fact that a position belongs to the Career Service does not automatically confer security of tenure on its occupant even if he does not possess the required qualifications.” Achacoso did not. There is no question that petitioner does not possess the required CES eligibility. After such appointment. At best. Such right will have to depend on the nature of his appointment. Hence. an incumbent of a CES position may qualify for appointment to a CES rank. not attain permanency. To be sure. including the appropriate eligibility prescribed. his appointment could be regarded only as temporary. what entitles an examinee to a conferment of a CES eligibility is his passing the CES examination. his appointment did Such being the case. Macaraig. Upon conferment of a CES eligibility. it can be withdrawn from him anytime without violating the constitutionally guaranteed right to security of tenure. which in turn depends on his eligibility or lack of it. the appointee is entitled to a security of tenure. it could be withdrawn at will by the appointing authority and “at a moment’s notice. A person who does not have the requisite qualifications for the position cannot be . And being so.

R. In approving or disapproving an appointment. Consequently. GAMINDE.[13] WHEREFORE. 127182. No. Commissioner. petitioners. SO ORDERED. vs. ALUNAN. he has no security of tenure. Costs against petitioner. as an exception to the rule. III. HON. Civil Service Commission. Commissioner. Department of Interior and Local Government. The appointment extended to him cannot be regarded as permanent even if it may be so designated. the CSC merely examines the conformity of the appointment with the law and the appointee’s possession of the required qualification and none of the disqualification. ALMA G. and HON.. HON. Chairman. DE LEON. 2001] HON. MONTESA. the petition is DENIED. RAMON P.” Considering that petitioner is not a CES eligible. The assailed Decision of the Court of Appeals is AFFIRMED. DECISION . respondents. COURT OF APPEALS and JACOB F. the PCSO could terminate his employment at any time and could be replaced by a CES eligible. JR. January 22. EN BANC [G.appointed to it in the first place or. and SECRETARY RAFAEL M. ERENETA. may be appointed to it merely in an acting capacity in the absence of appropriate eligibles. THELMA P.

relieving private respondent of his duties as Department Legal Counsel/Director III and reassigning him as Director III (Assistant Regional Director).[7] Hence. 1996 Resolution[2] of the Court of Appeals in CA-G. Jacob F. however. 1987. 94-370.(1) Department Order No. Legal Service in place of private respondent who. Patricio as Chief.R. Region XI. Aguirre. transferring him to Region XI. who succeeded Minister Pimentel. relieving private respondent of his current duties and responsibilities and reassigning him as “Director III (Assistant Regional Director). Alunan III. Santos. 262. signifying his intention to re-assume his position as Department Legal Counsel/Chief. On July 25. docketed as G. Aquino promulgated Executive Order No. was reclassified and ranked with “Assistant Bureau Directors” under the generic position title of “Director III”. citing as reasons the interest of public service and the smooth flow of operations in the concerned offices. 235 issued by then President Fidel V. 1986. Consequently. which set aside Resolution Nos. respondent was reinstated to the position: “Department Legal Counsel and/or Director III. Montesa. did not report to his new assigned position. 1988.[1] and November 20. Republic Act No. and declared as null and void . On September 26. designated Nicanor M.”[9] Private respondent. by then Minister Aquilino Pimentel. 94-370. he submitted a memorandum for then acting Secretary Alexander P. 1990. and (2) Administrative Order No. dropping private respondent from the rolls of public service. and upon the expiration thereof on December 5. 1994. Legal Services. SP No. then Secretary Rafael M. 94-370. Santos and Nicanor Patricio. who is not a Career Executive Service Officer (CESO) or a member of the Career Executive Service. private respondent Atty.”[8] On July 26. Region XI. in the execution of the decision of this Court in G. in turn. by memorandum dated December 6. 1989. Meanwhile. we ruled in favor of private respondent Montesa and ordered his reinstatement to his former position. for serious neglect of duty and absences without official leave. then Secretary Luis T. Private respondent’s appointment was approved as permanent by the Civil Service Commission. was appointed as “Ministry Legal Counsel . then President Corazon C.[5] issued by the Department of Interior and Local Government. Acting Secretary Aguirre. Pursuant thereto. private respondent filed before this Court a petition for quo warranto. On April 8.: Can a person who lacks the necessary qualifications for a public position be appointed to it in a permanent capacity? Before the Court is a Petition for Review on Certiorari assailing the April 25.[10] Thereupon. was directed to report to the office of the Secretary to perform special assignments. 83470. 1994. 1994. 38664. On August 28. issued Department Order No.CESO IV in the Ministry of Local Government” (now Department of Interior and Local Government [hereafter referred to as Department]). No. the position of “Department Service Chiefs. 6758 (otherwise known as the Salary Standardization Law) took effect on July 1.R.YNARES-SANTIAGO. he filed a 90-day sick leave.” which include the Department Legal Counsel.[6] against then Secretary Luis T. No. . 1996 Decision. Instead. Ramos.[11] reiterated to private respondent that the issuance of Department Order No. 953268[3] and 955201[4] of the Civil Service Commission. 83470. Jr.R. J. reorganizing the Department.

[15] Instead of complying therewith. 95-3268. the Court of Appeals rendered its decision in favor of private respondent. 955201 dated August 22. Accordingly. Private respondent’s motion for reconsideration of the aforesaid Resolution was similarly denied by the Commission in Resolution No. 1995 to September 27. 235. then President Fidel V.was in keeping with the interest of the public service and of the Career Executive Service (CES) provision on assignment. stressing that his continued non-compliance with D. No. 2) the reassignment did not entail any reduction in rank or status. corresponding to the period July 22. dropping private respondent Atty. 3) private respondent could be reassigned from one station to another without his consent as the rule against unconsented transfer applies only to an officer who is appointed to a particular station. 1996. No restraining order or preliminary injunction. Rollo). emolument and privileges. Legal Service. holding as follows: WHEREFORE. SO ORDERED. filed with the Court of Appeals a Petition for Review with prayer for the issuance of a temporary restraining order and/or preliminary injunction. issued Administrative Order No. on October 23. 1995. and not merely assigned thereto. the Department directed private respondent to report to his new assigned post in Region XI. Ramos. Jacob F. Legal Service” or “Department Legal Counsel” in the DILG.[13] dated May 23. 1995. 94-370 is prejudicial to the interest of public service. 1995. 1995 which sustained his reassignment to Region XI. upon the recommendation of the Department. reassignment. The DILG Secretary is hereby ordered to release to petitioner his withheld salaries corresponding to the period July 15-21. Private respondent wrote a memorandum dated December 12.O. private respondent was advised to report to Region XI immediately. however. Private respondent was also warned that upon his failure to comply. Director III. Finding that petitioner has not paid the amount of P500.[16] On April 25. 94-370 in so far as it affects petitioner. from the roster of public servants for serious neglect of duty and absences without leave (AWOL). private respondent. the Department shall be constrained to consider him on Absence Without Leave (AWOL) and as a consequence. he is hereby ordered to pay the same to the Clerk of this Court within five (5) days from receipt of this decision.00 as deposit for costs (page 1. the petition is GRANTED. but to no avail. 1994.[12] requesting for a reconsideration of Department Order No. rank. was issued by the court. 1995. Private respondent appealed to the Civil Service Commission and the latter issued Resolution No. Montesa. 94-370. without loss of seniority. 1995 and his back salaries. is hereby declared null and void. Petitioner is hereby ordered retained in his position as “Chief. Jacob F. particularly in Region XI. On December 13.[14] On October 10. drop him from the rolls of public service. and transfer.[17] . Department Order No. if also withheld. on the grounds that: 1) the subject reassignment was not violative of the due process clause of the Constitution or of private respondent’s right to security of tenure. Montesa. 1995.

contending that: I RESPONDENT COURT GRAVELY ERRED IN RULING THAT RESPONDENT MONTESA’S REASSIGNMENT IS ACTUALLY AN UNCONSENTED TRANSFER. posited that the decision of the Court of Appeals is not confluent with Administrative Order No. Petitioners. the period from August 1. Department Order No. including allowances (RATA) and other benefits. 235 are hereby declared null and void. The DILG Secretary is hereby ordered to release to petitioner his withheld salaries and backwages. Jacob Montesa. the presumption is in favor of its validity and it is incumbent upon private respondent to comply therewith so as not to prejudice the public service. 95-9201 (should be No. the Motion for Reconsideration filed by public respondents is hereby DENIED for lack of merit. Petitioner is hereby ordered reinstated to his position as “Chief Legal Service” or “Department Legal Counsel” in the DILG. Petitioner’s Motion for Clarification and/or Partial Motion for Reconsideration is hereby GRANTED. 1996. and Administrative Order No. 1995 is the period where respondent Alunan withheld his salary even before CSC Resolution No. The dispositive portion of the decision is hereby modified to read as follows: WHEREFORE. In his Motion for Clarification and/or Partial Motion for Reconsideration. emolument and privileges. 1996 decision. 1995 having been covered by approved leave of absences with pay. 1995 up to his actual reinstatement to office. SO ORDERED. 235.[19] Dissatisfied. premises considered. corresponding to the period July 15. and the period of July 22 to October 4. the petition is GRANTED. They further argued that until and unless the said Order is declared illegal and/or invalid. on the other hand. On November 20. 1995. rank. petitioners filed the instant petition with this Court. without loss of seniority.”[18] Respondent likewise prayed for the award of RATA during the period of his illegal dismissal. private respondent prayed for “backwages to cover the period from October 5. issued on December 13. to which petitioner would have been entitled had he not been illegally removed.Both petitioners and private respondent moved for reconsideration. 95-3268) became executory. the Court of Appeals issued the assailed resolution modifying its April 25. II RESPONDENT COURT GRAVELY ERRED IN RULING THAT RESPONDENT MONTESA’S “TRANSFER” CHANGES HIS APPOINTMENT FROM PERMANENT TO TEMPORARY AND VIOLATES HIS CONSTITUTIONAL RIGHT TO SECURITY OF TENURE. thus: WHEREFORE. 1994 to July 14. 1995 up to his actual reinstatement to office. 94-370 in so far as it affects petitioner. 1995 by then President Ramos which dropped petitioner from the roster of public servants. while the period July 1521. III . 1995 is the period where his name was included in the payroll but release of his salary was illegally withheld by private respondent Alunan on July 21.

The President may. there is no question that private respondent does not have the required CES eligibility. the pivot of inquiry here boils down to the nature of the appointment of private respondent Atty. Conferment of CES eligibility is done by the Board through a formal Board Resolution after an evaluation of the examinee’s performance in the four stages of the CES eligibility examinations.CESO IV is embraced in the Career Executive Service. CORRESPONDING TO THE PERIOD FROM JULY 15.” In the case of Achacoso v. Such appointments shall be made on the basis of rank.[23] the Court held that: . Appointment to appropriate classes in the Career Executive Service shall be made by the President from a list of career executive eligibles recommended by the Board. provided that appointments to the higher ranks which qualify the incumbents to assignments as undersecretary and heads of bureaus and offices and equivalent positions shall be with the confirmation of the Commission on Appointments. Under the Integrated Reorganization Plan. however.[20] Succinctly put. INCLUDING RATA AND OTHER BENEFITS. appoint any person who is not a Career Executive Service eligible. appointment thereto shall be made as follows: c. At the initial implementation of this Plan.[22] In the case at bar. 1995 UP TO HIS ACTUAL REINSTATEMENT. an incumbent who holds a permanent appointment to a position embraced in the Career Executive Service shall continue to hold his position.RESPONDENT COURT GRAVELY ERRED AND COMMITTED GRAVE ABUSE OF DISCRETION IN ORDERING THE REINSTATEMENT OF RESPONDENT MONTESA IN OPEN DISREGARD OF ADMINISTRATIVE ORDER NO. As admitted by private respondent in his Comment. it must be stressed that the position of Ministry Legal Counsel . Appointment. in exceptional cases. Macaraig. the required Career Executive Service eligibility may be then acquired in the following manner: Career Executive Service Eligibility Passing the CES examination entitles the examinee to a conferment of a CES eligibility and the inclusion of his name in the roster of CES eligibles. IV RESPONDENT COURT GRAVELY ERRED IN RULING THAT RESPONDENT MONTESA IS ENTITLED TO BACKWAGES. Montesa. Jacob F. et al. 235 ISSUED BY THE PRESIDENT OF THE PHILIPPINES DROPPING HIM FROM THE ROSTER OF PUBLIC SERVANTS. provided that such appointee shall subsequently take the required Career Executive Service examination and that he shall not be promoted to a higher class until he qualifies in such examination..[21] Corollarily. At the outset. but may not advance to a higher class of position in the Career Executive Service unless or until he qualifies for membership in the Career Executive Service. he is “not a CESO or a member of the Career Executive Service.

The Court. was merely temporary. 38664 are REVERSED and SET ASIDE. 1996 Decision and the November 20. he did not at the time of his appointment and up to the present. therefore. No pronouncement as to costs. Otherwise. their lack of eligibility would be a premium vesting them with permanency in the CES positions. he could be transferred or reassigned without violating the constitutionally guaranteed right to security of tenure. based on the foregoing. non-eligibles holding permanent appointments to CES positions were never meant to remain immobile in their status. Resolution Nos. the Petition is GRANTED. Not having taken the necessary Career Executive Service examination to obtain the requisite eligibility. hence. private respondent’s appointment did not attain permanency. The April 25. he could be transferred or reassigned to other positions without violating his right to security of tenure. WHEREFORE. Such right will have to depend on the nature of his appointment. including the appropriate eligibility prescribed. having considered these submissions and the additional arguments of the parties in the petitioner’s Reply and the Solicitor-General’s Rejoinder.CESO IV/ Department Legal Counsel and/or Director III. .” conformably to established jurisprudence. possess the needed eligibility for a position in the Career Executive Service. the cases on unconsented transfer invoked by private respondent find no application in the present case. the contention is without merit. it could be withdrawn at will by the appointing authority and “at a moment’s notice. Private respondent capitalizes on his lack of CES eligibility by adamantly contending that the mobility and flexibility concepts in the assignment of personnels under the Career Executive Service[24] do not apply to him because he is not a Career Executive Service Officer. Then too.R. The mere fact that a position belongs to the Career Service does not automatically confer security of tenure on its occupant even if he does not possess the required qualifications. And being so. 1996 Resolution of the Court of Appeals in CA-G.” Achacoso did not. To reiterate. SO ORDERED. a privilege even their eligible counterparts do not enjoy. As correctly pointed out by the Solicitor General. only as an exception to the rule. his appointment could be regarded only as temporary. his appointment as Ministry Legal Counsel . Consequently. The appointment extended to him cannot be regarded as permanent even if it may be so designated. Obviously. SP No. At best. A person who does not have the requisite qualifications for the position cannot be appointed to it in the first place or. 953268 and 955201 of the Civil Service Commission are REINSTATED. Evidently. private respondent’s appointment is merely temporary. which in turn depends on his eligibility or lack of it. may be appointed to it merely in an acting capacity in the absence of appropriate eligibles.It is settled that a permanent appointment can be issued only “to a person who meets all the requirements for the position to which he is being appointed. must find for the respondents. Such being the case.

v.: In this appeal by certiorari from the decision of the Court of Appeals in AC-G. ERNESTO SAN JOAQUIN and EFREN SAN JOAQUIN. Hon. 15 small scale technology soap making. 103125 May 17. Series of 1988. et al.and other progressive feasibility concepts objective of which is to provide the necessary scientific and technology know-how to farmers and fishermen in Camarines Sur and to establish a housing project for provincial government employees.. BENJAMIN V.FIRST DIVISION G.R. 1993 PROVINCE OF CAMARINES SUR. PANGA as Presiding Judge of RTC Branch 33 at Pili. SP No. The Provincial Attorney for petitioners.. The "WHEREAS" clause o:f the Resolution states: WHEREAS. LUIS R. vs. small scale products of plaster of paris. petitioners. San Joaquin. VILLAFUERTE and HON. 1988. THE COURT OF APPEALS (THIRD DIVISION). some of the vital components of which includes the establishment of model and pilot farm for non-food and non-traditional agricultural crops. soil testing and tissue culture laboratory centers. marine biological and sea farming research center. On December 22. the province of Camarines Sur has adopted a five-year Comprehensive Development plan. Camarines Sur. et al. Reynaldo L. Panga. respondents. as the implementator of the agrarian reform program. authorizing the Provincial Governor to purchase or expropriate property contiguous to the provincial capitol site. in order to establish a pilot farm for non-food and non-traditional agricultural crops and a housing project for provincial government employees. WHEREAS. 20551 entitled "Ernesto N. 129. to the prior approval of the Secretary of the Agrarian Reform. QUIASON." this Court is asked to decide whether the expropriation of agricultural lands by local government units is subject. the province would need additional land to be acquired either by purchase or expropriation to implement the above program component. . No. Herrera for Ernesto San Joaquin. the Sangguniang Panlalawigan of the Province of Camarines Sur passed Resolution No.R. Benjamin V. J. represented by GOV.

Blg. through its Governor. there was no need for the approval by the Office of the President of the exercise by the Sangguniang Panlalawigan of the right of eminent domain. the San Joaquins asked: (a) that Resolution No. 337). the Province of Camarines Sur. the trial court denied the motion to dismiss and authorized the Province of Camarines Sur to take possession of the property upon the deposit with the Clerk of Court of the amount of P5. However. there are contiguous/adjacent properties to be (sic) present Provincial Capitol Site ideally suitable to establish the same pilot development center.WHEREAS. authorizing the Province of Camarines Sur to take possession of their property and a motion to admit an amended motion to dismiss. 1989. Asked by the Court of Appeals to give his Comment to the petition. the amount provisionally fixed by the trial court to answer for damages that private respondents may suffer in the event that the expropriation cases do not prosper. 129. Panga. They also asked that an order be issued to restrain the trial court from enforcing the writ of possession. Pili.714. the Province of Camarines Sur filed a motion for the issuance of writ of possession. the Solicitor General expressed the view that the Province of Camarines Sur must first secure the approval of the Department of Agrarian Reform of the plan to expropriate the lands of petitioners for use as a housing project. . . In an order dated December 6.Villafuerte. San Joaquin. Forthwith. Both motions were denied in the order dated February 1990. 337) and that the expropriations are for a public purpose. Series of 1988 of the Sangguniang Panlalawigan be declared null and void. filed two separate cases for expropriation against Ernesto N. P-17-89 and P-19-89 of the Regional Trial Court. Benjamin V. WHEREFORE . San Joaquin and Efren N. Luis R. the Solicitor General stated that under Section 9 of the Local Government Code (B.P.00. The trial court issued a writ of possession in an order dated January18. In its answer to the petition. and thereafter to issue a writ of injunction. The San Joaquins filed a motion for relief from the order. 1990. Blg. The San Joaquins moved to dismiss the complaints on the ground of inadequacy of the price offered for their property. allowing the Province of Camarines Sur to take possession of private respondents' lands and the order denying the admission of . docketed as Special Civil Action Nos. be set aside. the Province of Camarines Sur claimed that it has the authority to initiate the expropriation proceedings under Sections 4 and 7 of Local Government Code (B. In their petition before the Court of Appeals. presided by the Hon.P. . Pursuant to the Resolution. 1990. Camarines Sur. 1989 (i) denying the motion to dismiss and (ii) allowing the Province of Camarines Sur to take possession of the property subject of the expropriation and the order dated February 26. Hon. The San Joaquins failed to appear at the hearing of the motion. and (c) that the order dated December 6. (b) that the complaints for expropriation be dismissed. The Court of Appeals set aside the order of the trial court. denying the motion to admit the amended motion to dismiss.

154 SCRA 461.) before the taking thereof could satisfy the constitutional requirement of "public use". safety. fishery and the cottage industry.g. particularly Section 65 thereof. The housing project also satisfies the public purpose requirement of the Constitution. bridges. following the recommendation of the Solicitor General. As held in Sumulong v.RA 461 [1987]). fishermen and craftsmen would be enhanced. held that the Province of Camarines Sur must comply with the provision of Section 65 of the Comprehensive Agrarian Reform Law and must first secure the approval of the Department of Agrarian Reform of the plan to expropriate the lands of the San Joaquins. etc. 6657). which tends to contribute to the general welfare and the prosperity of the whole community. it assumed that the resolution is valid and that the expropriation is for a public purpose or public use. which requires the approval of the Department of Agrarian Reform before a parcel of land can be reclassified from an agricultural to a non-agricultural land. The old concept was that the condemned property must actually be used by the general public (e. neither did it dismiss the complaints. 154 SC. It also ordered the trial court to suspend the expropriation proceedings until after the Province of Camarines Sur shall have submitted the requisite approval of the Department of Agrarian Reform to convert the classification of the property of the private respondents from agricultural to non-agricultural land. 125 SCRA 220 [1983].A. the environment and in sum the general welfare. The Court of Appeals. Shortage in housing is a matter of state concern since it directly and significantly affects public health. Series of 1988 of the Sangguniang Panlalawigan of the Province of Camarines Sur. Hence this petition. The Court of Appeals did not rule on the validity of the questioned resolution. the San Joaquins asked for: (i) the dismissal of the complaints for expropriation on the ground of the inadequacy of the compensation offered for the property and (ii) the nullification of Resolution No. public plazas. Under the new concept.the amended motion to dismiss. roads. Guerrero. the center would make available to the community invaluable information and technology on agriculture. It must be noted that in the Court of Appeals. Guerrero. Sumulong v. convenience or benefit. "public use" means public advantage. "Housing is a basic human need. The expropriation of the property authorized by the questioned resolution is for a public purpose. when the Court of Appeals ordered the suspension of the proceedings until the Province of Camarines Sur shall have obtained the authority of the Department of Agrarian Reform to change the classification of the lands sought to be expropriated from agricultural to non-agricultural use. like a resort complex for tourists or housing project (Heirs of Juancho Ardano v. 129. Ultimately. Reyes. No. . The establishment of a pilot development center would inure to the direct benefit and advantage of the people of the Province of Camarines Sur. there has been a shift from the literal to a broader interpretation of "public purpose" or "public use" for which the power of eminent domain may be exercised. Once operational. the livelihood of the farmers. Modernly. However." It is the submission of the Province of Camarines Sur that its exercise of the power of eminent domain cannot be restricted by the provisions of the Comprehensive Agrarian Reform Law (R.

(Comment.In Heirs of Juancho Ardana v. 50 SCt. agricultural purposes. 43 S Ct. 337. Conversion of Lands. the DAR. While such delegated power may be a limited authority. upon application of the beneficiary or the landowner. which reads: Sec. 125 SCRA 220. 129.970 square meters or less than one hectare was affected by the land reform program and covered by emancipation patents issued by the Ministry of Agrarian Reform. 28l US 439. 128-129) It is true that local government units have no inherent power of eminent domain and can exercise it only when expressly authorized by the legislature (City of Cincinnati v. Series of 1988. was promulgated pursuant to Section 9 of B. Blg. 262 US 668 67 L. Reyes. There was a finding that of the 282 hectares sought to be expropriated.P. pp. ed. the Local Government Code. units must first secure the approval of the Department of Land Reform for the conversion of lands from agricultural to non-agricultural use. either in the law conferring the power or in other legislations. before they can institute the necessary expropriation proceedings. 684). Co. the limitations on the exercise of the delegated power must be clearly expressed. It is also true that in delegating the power to expropriate. The Solicitor General denigrated the power to expropriate by the Province of Camarines Sur by stressing the fact that local government units exercise such power only by delegation. Vester. That the beneficiary shall have fully paid his obligation. the legislature may retain certain control or impose certain restraints on the exercise thereof by the local governments (Joslin Mfg. 65. A fair and reasonable reading of the decision is that this Court viewed the power of expropriation as superior to the power to distribute lands under the land reform program. 950. Blg. . only an area of 8. The closest provision of law that the Court of Appeals could cite to justify the intervention of the Department of Agrarian Reform in expropriation matters is Section 65 of the Comprehensive Agrarian Reform Law. petitioners raised the issue of whether the Philippine Tourism Authority can expropriate lands covered by the "Operation Land Transfer" for use of a tourist resort complex. or the locality has become urbanized and the land will have a greater economic value for residential. when the land ceases to be economically feasible and sound for. and subject to existing laws. 74 L. Resolution No. 1167. Moreover.P. through its head and acting pursuant to a resolution of its sanggunian exercise the right of eminent domain and institute condemnation proceedings for public use or purpose. Rollo.970 square meters formed part of the resort complex. 337 does not intimate in the least that local government. — After the lapse of five (5) years from its award. which provides: A local government unit may. there is no provision in the Comprehensive Agrarian Reform Law which expressly subjects the expropriation of agricultural lands by local government units to the control of the Department of Agrarian Reform. may authorize the reclassification or conversion of the land and its disposition: Provided. Section 9 of B. it is complete within its limits. 14-15. Likewise. with due notice to the affected parties. v. commercial or industrial purposes." it upheld the expropriation after noting that petitioners had failed to overcome the showing that the taking of 8. While the Court said that there was "no need under the facts of this petition to rule on whether the public purpose is superior or inferior to another purpose or engage in a balancing of competing public interest. 360).ed. pp. Providence.

commercial or industrial uses. The Republic of the Philippines. 10 N.Y. whichever was lower ([Export Processing Zone Authority v. 149 SCRA 305 [1987]). adverbial phrase of the provision sends signals that it applies to lands previously placed under the agrarian reform program as it speaks of "the lapse of five (5) years from its award. There is also an ancient rule that restrictive statutes. As held in Municipality of Talisay v. hospitals. 176 N. 144 Minn. Minister of Labor and Employment. it would then be the Department of Agrarian Reform to scrutinize whether the expropriation is for a public purpose or public use. Welch. v. bridges. etc.E. Series of 1987. 2d. Ramirez. the same being an expression of legislative policy. 183 SCRA 528 [1990]. While those rules vest on the Department of Agrarian Reform the exclusive authority to approve or disapprove conversions of agricultural lands for residential.The opening. 2d. This Court has declared as unconstitutional the Presidential Decrees fixing the just compensation in expropriation cases to be the value given to the condemned property either by the owners or the assessor. 241). without first applying for conversion of the use of the lands with the Department of Agrarian Reform. such authority is limited to the applications for reclassification submitted by the land owners or tenant beneficiaries. 174 NW 885. State ex rel Twin City Bldg. as holders of delegated sovereign powers. The fears of private respondents that they will be paid on the basis of the valuation declared in the tax declarations of their property. 129-A. To sustain the Court of Appeals would mean that the local government units can no longer expropriate agricultural lands needed for the construction of roads. 8 ALR 585). because all of these projects would naturally involve a change in the land use. as sovereign. 843. Statutes conferring the power of eminent domain to political subdivisions cannot be broadened or constricted by implication (Schulman v. 817. 1. 124 SCRA 1 [1983]). 249. and Invest. the rules for determining just compensation are those laid down in Rule 67 of the Rules of Court. . 327 US 546. People. schools. which allow private respondents to submit evidence on what they consider shall be the just compensation for their property. Houghton." The rules on conversion of agricultural lands found in Section 4 (k) and 5 (1) of Executive Order No. it is the legislative branch of the local government unit that shall determine whether the use of the property sought to be expropriated shall be public. ed. Dulay. cannot be bound by provisions of law couched in general term. 90 L. Co. no matter how broad their terms are. are unfounded. do not embrace the sovereign unless the sovereign is specially mentioned as subject thereto (Alliance of Government Workers v. 219 NYS 2d. or its political subdivisions. In effect. 66 S Ct 715. Ordinarily. The courts defer to such legislative determination and will intervene only when a particular undertaking has no real or substantial relation to the public use (United States Ex Rel Tennessee Valley Authority v. cannot be the source of the authority of the Department of Agrarian Reform to determine the suitability of a parcel of agricultural land for the purpose to which it would be devoted by the expropriating authority.

a letter informing him that the status of private respondent Dato has been changed from temporary topermanent. wrote the Gov. CA and TITO B. The decision of the Court of Appeals is AFFIRMED insofar as it sets aside the order of the trial court. Rama. FACTS: In January 1.Petitioner’s contention: When Gov. Lope B.Sangguniang Panlalawigan.CA: Affirmed RTC’s decision. which was renewed annually. Consequently. Apolonio Maleniza.Dato had no civil service eligibility for the position he was appointed to. the latter having passed the examination for Supervising Security Guard. the petition is GRANTED and the questioned decision of the Court of Appeals is set aside insofar as it (a) nullifies the trial court's order allowing the Province of Camarines Sur to take possession of private respondents' property. 1974. of Camarines Sur.WHEREFORE. the date of release of said examination. which the CSC approved as only temporary pending validation of the results of private respondent'sexamination for supervising security guard.His request was not heeded. J. suppressed the appropriation for the position of Assistant Provincial Warden and deleted privaterespondent's name from the petitioner's plantilla. denying the amended motion to dismiss of the private respondents. 1974 – Gov. SO ORDERED. private respondent's appointment in effect remained temporary. thus. DATO July 14. Mr. PROVINCE OF CAMARINES SUR vs. Province of Camarines Sur appealed the decisionto the CA. Said change of status however.March 16. 1960 .private respondent Dato was appointed as Private Agent by the then Gov.1976. KAPUNAN. for reinstatement and backwages. Alfelor approved the change in Dato's employment status from temporary to permanent upon the latter'srepresentation that he passed the civil service examination for supervising security guards. Two years after the request for change of status was made. (b) orders the trial court to suspend the expropriation proceedings. Hence the present petition. he could not be legally extended a permanentappointment. head of the Camarines Sur Unit of the Civil ServiceCommission. Alfelor after criminal charges were filed against him and a prison guard forallegedly conniving and/or consenting to evasion of sentence of some detention prisoners who escaped from confinement. The change of status was to be maderetroactive to June 11. his subsequentqualification for civil service eligibility did not ipso facto . and (c) requires the Province of Camarines Sur to obtain the approval of the Department of Agrarian Reform to convert or reclassify private respondents' property from agricultural to non-agricultural use. 1976 – Dato was indefinitely suspended by Gov. His appointment remained temporary and no other appointment was extended to him. was notfavorably acted upon by the Civil Service Commission (CSC) reasoning that Dato did not possess the necessary civil service eligibilityfor the office he was appointed to. Sr. he requested the Gov.Dato was promoted and appointed Assistant Provincial Warden by then Gov. Alfelor recommended to CSC the change in the employment status of private respondent fromtemporary to permanent.Dato was subsequently acquitted of the charges against him. 1972 .RTC Decision: Ordered the payment of backwages of Dato equivalent to five years. Felix Alfelor. ISSUE: W/N Dato was a permanent employee of petitioner Province of Camarines Sur at the time he was suspended on March 16. He was extended a temporary appointment.October 12. Hence. January 1. Dato filed an action before the RTC. 1995.

R. What is required is a newappointment since a permanent appointment is not a continuation of the temporary appointment — these are two distinct acts of theappointing authority The letter communicated by Mr. of Camarines Sur is a clear arrogation of power properly belonging to theappointing authority. It does not have the power to makethe appointment itself or to direct the appointing authority to change the employment status of an employee. 1993 CONCHITA ROMUALDEZ-YAP. Dato. thereby encroaching on the discretion vested solely upon the latter EN BANC G. is not entitled to his claim for backwagesfor the entire period of his suspension. 104226 August 12. being merely a temporary employee. Lope Rama to the Gov. CSC should have endedits participation in the appointment of private respondent on January 1. vs. it stepped on the toesof the appointing authority. he had not yet qualified in an appropriateexamination for the aforementioned position. . did not ipso facto convert his temporary appointment into a permanent one. Such lack of a civil service eligibility made his appointment temporary and without afixed and definite term and is dependent entirely upon the pleasure of the appointing power. The fact that private respondent obtained civil service eligibility later on is of no moment as his having passed the supervisingsecurity guard examination. When it issued the foregoing communication on March 19. petitioner. 1976. SC Held: Agrees with Petitioner’s contentions. CSC has the power to approve or disapprove an appointment set before it. No. 1974 when it confirmed the temporary status of the latterwho lacked the proper civil service eligibility.convert his temporary status to that of permanent. 1974. Ratio: At the time Dato was appointed Assistant Provincial Warden on January 1.

1 This letter was received by petitioner's secretary at the PNB head office on 16 February 1987. 80. Estelito P. for Philippine National Bank. which upheld the petitioner's separation from the Philippine National Bank(PNB) as a result of the abolition of the Fund Transfer Department pursuant to a reorganization under Executive Order No. assailing Resolution No. Petitioner's first recorded appeal to the Civil Service Commission questioning her separation is a letter dated 4 August 1989. Executive Order No. Barlongay upheld the validity of her separation from the service in a letter/opinion dated 30 August 1989 (this was allegedly received by petitioner only on 26 February 1990) stating thus: . thus: Pursuant to the Transitory Provision of the 1986 Revised Charter of the Bank. Then CSC Chairman Samilo N. After several promotions. 80 (Revised Charter of the PNB) was approved on 3 December 1986. Mendoza for petitioner. Santiago. Domingo A. Said executive order authorized the restructure/reorganization and rehabilitation of PNB. J. please be informed that Management has approved your separation from the service effective February 16.THE CIVIL SERVICE COMMISSION and THE PHILIPPINE NATIONAL BANK. Petitioner Conchita Romualdez-Yap started working with the Philippine National Bank on 20 September 1972 as special assistant with the rank of Second Assistant Manager assigned to the office of the PNB President. petitioner was notified of her separation from the service in a letter dated 30 January 1987. Starting 1 April 1986 up to 20 February 1987. 37 of the Bank's 1986 Revised Charter. You shall be entitled to the regular benefits allowed under existing law. dated 3 December 1986. she was appointed in 1983 Senior Vice President assigned to the Fund Transfer Department. 1986.: This is a special civil action for certiorari under Rule 65 of the Rules of Court. PADILLA. petitioner filed several applications for leave of absence (due to medical reasons) which were duly approved. Jr. respondents. The Solicitor General for the Civil Service Commission. any officer or employee who feels aggrieved by any matter treated above may submit his case to the Civil Service Commission. the Fund Transfer Department was abolished and its functions transferred to the International Department. While she was on leave. Consequently. Pursuant to the reorganization plan. 92-201 of the respondent Civil Service Commission. (emphasis supplied) Please be informed further that under Sec.

Moreover. 1987. 33.xxx xxx xxx It may be mentioned in this connection. the bad faith in her separation from the service in 1987 was evident from the recent restoration of the Fund Transfer Department as a separate and distinct unit from the International Department . be disputed that reduction in force necessitates. 2. . questioning Chairman Barlongay's ruling. among others. the Civil Service Commission in its aforecited Resolution No. you have therefore lost your right thereto. you may be entitled to the return of your GSIS personal contributions. 1986 to February 20. dated 30 January. pursuant to Section 16. . 1987 it was only served upon her on February 16. . Considering further that you have exhausted all your accumulated leave credits as you went on leave of absence for the period from April 1. when President Corazon C. thus: . 1992. The opinion/ruling was not fully supported by the evidence on record. Errors of law prejudicial to the interest of the movant have been committed. PNB originally had 7. PNB was authorized to undergo reorganization and to effect a reduction in force to "achieve greater efficiency and economy in operations". and shall be completed within six (6) months and shall be fully implemented within eighteen (18) months thereafter.537 positions which were reduced to 5. that is. petitioner claimed: 1. Aquino came into power. Indeed. It cannot. 3 xxx xxx xxx . which were reduced. She further claims that although the notice of termination was dated January 30. there is no legal or valid basis to entitle you to payment of terminal leave.405 after the reorganization. the abolition of positions/offices. which law authorized the reorganization of the PNB. 92-201. Authority to Reorganize. Article XVIII of the Transitory Provisions of the 1987 Philippine Constitution. a reorganization of the Bank and a reduction in force are hereby authorized to achieve greater efficiency and economy in operations. that her separation from the service was illegal and was done in bad faith considering that her termination on February 16. 1986 was made effective prior to the effectivity of Executive Order No. you may be entitled to payment of separation subject to auditing rules and regulations. including the adoption of a new staffing pattern to suit the reduced operations envisioned. and even before February 25. that inasmuch as you did not avail of the ERIP/Supplementary Retirement Plans adopted by the PNB in 1986. The program of reorganization shall begin immediately after the approval of this Order. — In view of reduced operations contemplated under this charter in pursuance of the national policy expressed in the "Whereas" clause hereof. Finally. 1986. 2 In her motion for reconsideration with the Civil Service Commission. 2. as aforequoted.132 positions were abolished. since you lack the required number of years of service to entitle you to retirement benefits under existing laws. She argued: . This reduction in force likewise included the senior officer positions. the original positions in PNB were reduced by 28%. . dated 5 March 1990. ruled: Sec. in PNB." Clearly. 1986. 33 of EO 80 (1986 Revised Charter of the PNB) provides: Sec. 4 Denying the motion for reconsideration. 80 on December 3. . The records show that prior to its reorganization. 1987 when the new Constitution which guarantees security of tenure to public employees was already in effect. .

a reorganization is carried out in "good faith" if it is for the purpose of economy or to make bureaucracy more efficient. no dismissal or separation actually occurs because the position itself ceases to exist. as a component of a reorganization under a constitutional regime is judged from the facts of each case. For indeed. and pursuant to the presumption of regularity in the performance of official functions. In that event. therefore. 92-201) supporting its stand that the separation actually took effect on 16 February 1987. 81954): Reorganizations in this jurisdiction have been regarded as valid provided they are pursued in good faith. It was one among the five (5) SVP positions which were abolished. . It should be noted that as ruled by the Supreme Court in Dario vs. . was merged with the International Department to which its functions were closedly related. actually was a merger of the Fund Transfer Group. It undertook reduction in force as a means to streamline the numbers of the workforce. Exec. And in that case. 80 on 3 December 1986.R. PNB submitted documents (p. In the instant case. . This being so. the restoration of the Fund Transfer Department and other offices in the PNB was primarily caused by the improved financial capability and present needs of the Bank. this Commission is inclined to believe that the reorganization of PNB was done in good faith. . . Movant Yap failed to substantiate her claim by clear and convincing evidence that the abolition of her position was a result of her close identification with the previous regime. 33 27 15 The position of movant Yap (SVP) was one among the original twelve (12) SVP positions.Positions Incumbents Proposed Position President 1 1 1 Sr. her separation was illegal because it took effect on 16 February 1986 or even before the promulgation of EO No. the CSC noted that the year "1986" stated in the notice of her separation from the service was a typographical error. 60 of March 12. or after the lapse of over four (4) years from the date it was abolished in 1987. It was incidental that movant Yap's position was one among those abolished. i. 1991. security of tenure would not be a Chinese Wall.e. It may be further stated that the re- . the Foreign Remittance Development and Coordinating Unit based on board Resolution No. Mison (G. the reorganization was pursued to achieve economy. has clearly proved by substantial evidence that its act in terminating the services of some of its employees was done in good faith. . Moreover. 5 Overruling her imputation of bad faith. . in the instant case. the subject CSC resolution adds: xxx xxx xxx It may be mentioned that the recent restoration of the Fund Transfer Department. As a general rule. Good faith. In fact. 6 of Resolution No. the abolition of movant Yap's position should be upheld. VP 1 1 0 Exec. being a sister of former First Lady Imelda Romualdez Marcos. NO. On the issue of bad faith as related to the later restoration of the Fund Transfer Department. This improved financial condition of the PNB is evident from the 1990 Annual Report it submitted. VP 3 2 2 Senior VP 12 11 7 Vice Pres. PNB. the FTD of which she was then the incumbent SVP.

Records show that she was separated from PNB on February 16. Dario v. And in that case. It says: .established FTD is headed by a Vice President. 1987 and it was only in 1989 or about 2 years thereafter when she brought this matter to this Commission. In Petitioner's case. 2. imposing a "cause" for restructuring. no valid "abolition" takes place and whatever "abolition" is done. 2. or where claims of economy are belied by the existence of ample funds. Erroneous application of the one (1) year prescriptive period for quo warranto proceedings in petitioner's case. . Reorganizations in this jurisdiction have been regarded as valid provided they are pursued in good faith. she however. . if the "abolition. it should be noted that granting arguendo that movant Yap's termination from the service was tainted with bad faith. PNB did not follow the prescribed sequence of separation of employees from the service contained in Rep. 6 In the present petition before the Court. security of tenure would not be a Chinese wall. By her inaction in questioning her termination within a period of one year. It is to be stressed that by predisposing a reorganization to the yardstick of good faith. Erroneous application of the Dario v. Be that as it may. no dismissal (in case of dismissal) or separation actually occurs because the position itself ceases to exist. is void ab initio." which is nothing else but a separation or removal. Mison 7 laid down the requirement of good faith in the reorganization of a government bureau wherein offices are abolished. Retrenchment in the course of a reorganization in good faith is still removal "not for cause" if by "cause" we refer to "grounds" or conditions that call for disciplinary action. 6656 which is: Sec. as a consequence. a reorganization is carried out in "good faith" if it is for the purpose of economy or to make bureaucracy more efficient. is done for political reasons or purposely to defeat security of tenure. or otherwise not in good faith. The abolished department was later restored and the number of senior vice presidents was increased. 3. There is an invalid "abolition" as where there is merely a change of nomenclature of positions. . Existence of bad faith in the reorganization of the Philippine National Bank resulting in the separation from the service of petitioner. she is considered to have acquiesced to her separation from the service and abandoned her right to the position. a position much lower in rank than the former department headed by a Senior Vice President. the following instances are cited by her as indicia of bad faith: 1. the following order of removal shall be followed: (a) Casual employees with less than five (5) years of government service. we are not. In the separation of personnel pursuant to reorganization. As a general rule. Good faith. as a component of a reorganization under a constitutional regime. 3. is judged from the facts of each case. In that event. Mison doctrine vis-a-vis PNB's reorganization. Act No. is now barred from assailing the same as she did not seasonably assert her right thereto. Furthermore. the following issues are raised: 1.

and (d) Employees holding permanent appointments: Provided. is a periphernal issue. In most of PNB's pleadings. 29 Ch. 5 Subtitle A. Executive Order No. Book V of the Administrative Code of 1987. 8 It is the performance of an act with the knowledge that the actor is violating the fundamental law or right.(b) Casual employees with five (5) years or more of government service. There is a discrepancy in the date of her separation from the service and the effectivity thereof. 8. the reorganization of PNB had not even been conceived. 7. Petitioner was not extended preference in appointment to the positions in the new staffing pattern as mandated by Sec. length of service notwithstanding. Lack of notice and bearing before separation from the service. At that time. PNB employees in the Fund Transfer Department identified with her were reassigned or frozen. The real issue is existence of bad faith consisting of tangible bureaucratic/management pressures exerted to ease her out of office. 4. That those in the same category as enumerated above. Bad faith has been defined as a state of mind affirmatively operating with furtive design or with some motive of self interest or ill will or for an ulterior purpose. The order was issued by then Pres. After 3 December 1986. 9. she being a sister of Mrs. 80 conferred upon the PNB the authority to reorganize. 3. 4 of Rep. her qualification and fitness for new positions were never evaluated or considered in violation of Sec. Imelda Romualdez Marcos. Corazon Aquino on 3 December 1986 while she was exercising the powers vested in the President of the Philippines by the Freedom Constitution. aside from being clearly a typographical error. She is listed as having resigned instead of being separated or dismissed which was what actually happened. The dismissal was politically motivated. even without willful intent to injure or purposive malice to perpetrate a damnifying harm. Mison doctrine? To start with it is almost absurd for petitioner to insist that her termination from the service was antedated to 16 February 1986. Act 6656. 9 . Petitioner was forced to take a leave of absence and prevented from reporting for work. what remained to be done was the implementation of the reorganization. There is no doubt as to the legal basis for PNB's reorganization. The real question is: was it done in good faith. it has documented and supported its stand that the year of petitioner's separation is 1987 not 1986. The antedating of the termination date. 6. 27 of P. who are least qualified in terms of performance and merit shall be laid off first. 5. 807 which was incorporated as Sec. wife of deposed President Ferdinand Marcos. tested by the Dario v. (c) Employees holding temporary appointments.D.

At this point. Commercial or universal banking is. In this connection. It is an optional function of government. and those which it may exercise to promote merely the welfare. (Bacani vs. to achieve a more efficient and effective use of available scarce resources. These are what we call government-owned or controlled corporations which may take on the form of a private enterprise or one organized with powers and formal characteristics of a private corporation under the Corporation Law. November 29. Constituent function are those which constitute the very bonds of society and are compulsory in nature. the philosophy behind PNB's reorganization is spelled out in the whereas clauses of Executive Order No. 19-20) From the above we may infer that. WHEREAS. in pursuit of this national policy there is need to restructure the government financial institutions. and the government sector. . and are merely optional. At the time of reorganization. strictly speaking. 468) But a reorganization whether in a government bureau performing constituent functions or in a government-owned or controlled corporation performing ministrant functions must meet a common test. endeavor. pp. was a management prerogative exercised pursuant to a business judgment. and to avoid unfair competition with the private sector. The abolition of the Fund Transfer Department (FTD) was deemed necessary. The Government of the Philippine Islands. to improve its viability. particularly in servicing the requirements of agriculture. . positions and functions were abolished or merged. . ministrant functions are those undertaken by way of advancing the general interests of society. small and medium scale industry. was by virtue of a valid law. due to the critical financial situation of the bank. No. to the Court's mind. To this latter class belongs the organization of those corporations owned or controlled by the government to promote certain aspects of the economic life of our people such as the National Coconut Corporation. 100 Phil. departments. not a governmental but a private sector. the reorganization and rehabilitation of the Philippine National Bank into a similar but stronger and more operationally viable bank is an important component of the nationalization programs for both the financial system and the government corporation sector. and WHEREAS. to repeat.PNB's reorganization. there are functions which our government is required to exercise to promote its objectives as expressed in our Constitution and which are exercised by it as an attribute of sovereignty. This. . 1956. L-9657. is not . particularly the Philippine National Bank. nature it is better equipped to administer for the public welfare than is any private individual or group of individuals (Malcolm. the widow of former President Marcos. . . 80: WHEREAS. ideally. The principles determining whether or not a government shall exercise certain of these optional functions are: (1) that a government should do for the public welfare those things which private capital would not naturally undertake and (2) that a government should do those things which by its very. within the context of the general policy there nevertheless exists a clear role for direct government-participation in the banking system. Whether there was a hidden political agenda to persecute petitioner due to her consanguinial relation to Mrs. the test of good faith. Imelda Romualdez Marcos. export development. . Nacoco. progress and prosperity of the people. a distinction can be made in ruling on the validity of a reorganization between a government bureau or office performing constituent functions (like the Customs) and a government-owned or controlled corporation performing ministrant functions (like the PNB).

6656. Employees who were affected by the reorganization had the option to avail of the bank's Separation Benefits Plan/Early Retirement Plan (SBP/ERIP). she could have asserted it for management's consideration. petitioner went on leave of absence for medical reasons. The essence of good faith lies in an honest belief in the validity of one's right. If petitioner had the desire for continued employment with the bank. honoraria and fees up to March 1987. was a business judgment made in good faith. if not special treatment under the Marcos regime. allowances. including Senior Vice Presidents. The restoration of the FTD four years after it was abolished and its functions transferred to the International Department. She continued. was accordingly reduced. But a discontinuance of such deferential or special treatment in the wake of a change in government or administration is not bad faith per se. petitioner may have been the object of deferential. 10 It consists of an honest intention to abstain from taking an unconscionable and unscrupulous advantage of another.132) positions were abolished during the period from February 16. Due to the restructuring — and this is empirically verifiable — PNB became once more a viable banking institution. Since she cannot rebut the CSC finding that her earliest appeal was made on 4 August 1989.R.405) as of latter date per B. to repeat. 1987 leaving a lean workforce of five thousand four hundred five (5. the bank's reorganization got underway. b) Two thousand one hundred thirty two (2. there is no reason for this Court to hold that she did not sleep on her rights. Who could have predicted in 1986 or 1987 that PNB would be able to rise from its financial crisis and become a viable commercial bank again? The decision to abolish the FTD at the time it was abolished. It is part of the Filipino culture to extend such deferential. 11 The records also clearly indicate that starting April 1986 to February 1987.clearly shown. Petitioner opted not to avail of such plan and instead submitted to the result of the bank's ongoing reorganization and management's discretion. Act No. precisely because of such consanguinial relation. 34 hereto attached as Annex "R". emoluments. 1986 to January 14. On the contrary. Another issue raised by petitioner is PNB's alleged non-compliance with the mandate of Sections 2 and 4 of Rep. No. Many times this is carried to unwholesome extremes. On the other hand. receiving her salaries. it is entirely possible that. It may be merely putting things in their proper places. There is no proof on record that she affirmatively expressed willingness to be employed. PNB for its part submits that its reorganization was effected in good faith because — a) There was not only a perceptible but substantial restructuring of the PNB hierarchy showing reduction of personnel. its absence should be established by convincing evidence. however. if not special treatment to close relatives of persons in power. can be attributed to the bank's growth after reorganizations. These Sections provide: . c) The number of senior officers. consolidation of offices and abolition of positions. While she was not reporting to the office. thereby negating malice or bad faith in that reorganization. her present argument that bad faith existed at the time of the abolition of the FTD because it was restored four years later is a little too late.

PNB in its rejoinder impressively asserts: Needless to say. (b) Where an office is abolished and another performing substantially the same functions is created. respectively. A valid cause for removal exists when. his qualifications far exceeded those of the other candidates for the position. Rep. (a) Where there is a significant increase in the number of positions in the new staffing pattern of the department or agency concerned. including Ms. which clearly show that the qualifications of Mr. Each personnel to be retained was evaluated in terms of relative fitness and merit along with the other personnel of the Bank. a position has been abolished or rendered redundant or there is a need to merge. Aside from being a lawyer having been a law graduate from the University of the Philippines. he held the second highest position of Executive . there were various committees that were created in the implementation of the organizational restructuring of the Bank based on the foregoing policy guidelines. unless such positions are policy-determining. The existence of any or some of the following circumstances may be considered as evidence of bad faith in the removals made as a result of reorganization. primarily confidential or highly technical in nature. among which is the appropriate civil service eligibility. or other lawful causes allowed by the Civil Service Law. 2. Yap. (e) Where the removal violates the order of separation provided in Section 3 hereof. But assuming. Federico Pascual and Petitioner Ms. 6656 cannot be invoked by petitioner because it took effect on 15 June 1987. appointments shall be given preference for appointment to the new position in the approved staffing pattern comparable to their former positions or in case there are not enough comparable positions. that it is applicable here and petitioner must be accorded preferential right to appointment in the bank. performance and merit. (d) 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. He had studied Masteral Arts in Public Administration at the London School of Economics and had undergone extensive seminars since 1974 at the International Department and had been assigned in several foreign branches of the Bank. pursuant to a bona fide reorganization. divide. xxx xxx xxx Sec. when then SVP Federico Pascual was chosen to head the International Department from among other officers of the Bank. In the first place. Thus. Pascual far exceed those of Petitioner Yap. (c) Where incumbents are replaced by those less qualified in terms of status of appointment. No new employees shall be taken in until all permanent officers and employees have been appointed. Before he resigned from the Bank. including temporary and casual employees who possess the necessary qualification requirements. No officer or employee in the career service shall be removed except for a valid cause and after due notice and hearing. or consolidate positions in order to meet the exigencies of the service. for permanent appointment to positions in the approved staffing pattern. or after PNB's reorganization had already been implemented. he is also a Bachelor of Arts degree holder from Ateneo de Manila and a Master of Laws graduate o Columbia Law School. giving to a claim for reinstatement or reappointment by an aggrieved party. Act No.Sec. to positions next lower in rank. Yap. ex gratia argumenti. Officers and employees holding permanent. We attach hereto as Annexes "G-1" and "G-2" the service records of Mr. 4. in case there are still positions to be filled.

0 Million. Inc. The petitioner therein must show a clear legal right to the office allegedly held unlawfully by another. 16 Measured by the above jurisprudence. 17 and contend that there is no claim of usurpation of office.Vice President and served as Acting President of the Bank before the incumbent president. hence.1 Million. etc. . 22 The head of office was a Senior Vice President. Sec. This is not the unjustifiable cause which results in injury to the rights of a person contemplated by Article 1146.. 13 the failure to institute the same within the reglementary period constitutes more than a sufficient basis for its dismissal 14 since it is not proper that the title to a public office be subjected to continued uncertainty . At the time of restoration of the department in 1991. considering that she had abandoned or showed lack of interest in reclaiming the same . 19 are invoked by petitioner to illustrate that this action is one for separation without just cause. She cannot invoke De Tavera v. Tuberculosis Society. 15 An exception to this prescriptive period lies only if the failure to file the action can be attributed to the acts of a responsible government officer and not of the dismissed employee. She entered the Bank service in 1972. and that quo warranto may be availed of to assert one's right to an office in the situation obtaining in the case at bar. Petitioner's separation from the service was due to the abolition of her office in implementation of a valid reorganization. Rules of Court). President Gabriel Singson assumed his position. thoughtless move. On the other hand. 20 We do not agree. petitioner's action may be said to be one for quo warranto. Phil. the service record of Petitioner Yap will show that she only holds a Bachelor of Science in Commerce Degree from Assumption Convent and has undergone only one seminar on Management and Leadersbip Training Program. al. The abolition of the office was not a whimsical. et. . PNNC Corp. 23 Other departments abolished in 1986 were also subsequently restored. the prescriptive period is allegedly four (4) years in accordance with Article 1146 of the Civil Code. et. al. Restoring petitioner to her previous position with backwages would be unjust enrichment to her.. 12 An action for quo warranto should be brought within one (1) year after ouster from office. it was headed by a vice president (lower in rank) and showed earnings of P2.620. Santos v. foreign exchange losses of the bank amounted to P81. under the bank's new staffing pattern. 21 At the time of the abolition of the Fund Transfer Department in 1986. It was a thoroughly evaluated action for streamlining functions based on a rehabilitation plan. A person claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another may bring an action for quo warranto (Rule 66. 6. (Rollo at pp. 312 to 313) xxx xxx xxx The prayer in the petition at bar seeks petitioner's immediate reinstatement to her former position as senior vice president and head of the Fund Transfer Department. CA. or reappointment to a position of comparable or equivalent rank without loss of seniority rights and pay. 18 and Magno v. seeking reinstatement to her former position which at present is occupied by another.

labor laws.:p This is an appeal from the Decision 1 of the Court of First Instance of Cebu dated 28 December 1965 in Civil Case No. CITY TREASURER AND CITY AUDITOR. dismissing the petition for Mandamus filed on 9 March 1965 by petitioner to compel respondents to reinstate him to his former position as driver. CITY COUNCIL OF CEBU. premises considered.position when the bank was not yet fully rehabilitated and she only insisted on reinstatement in August 1989 or two (2) years after her alleged unjustified separation. JR. He filed a motion for extension of time to file the petition and the petition itself without the assistance of counsel. Vigilantibus. jura subveniunt (Laws come to the assistance of the vigilant. R-8778. No. To those who feel that their unjustified separation from the service is for a cause beyond their control. JR. JR. Basilio E. and to pay him moral and exemplary damages and . His explanation that he could not have filed the complaint earlier because "he was prevented to do so beyond his control for the simple reason that private respondent have (sic) tried to circumvent the law by merely floating" him is very flimsy and does not even evoke sympathetic consideration. and social legislation accord the workingman. REGIS. WHEREFORE. SO ORDERED.. the aforecited Magno case teaches: . THIRD DIVISION G. Duaban for petitioner.. petitioner. however. No pronouncement as to costs. if at all it is proper and necessary. . L-26785 May 23. alter or amend the law on prescription to relieve him of the consequences of his inaction. The petition is DISMISSED for failure to show grave abuse of discretion on the part of said CSC in rendering the questioned resolution. DAVIDE. vs. respondents. the assailed CSC resolution is AFFIRMED. he seems to be educated and assertive of his rights and appears to be familiar with judicial procedures. 1991 DEOGRACIAS A. . We cannot believe that if indeed he had a valid grievance against PNCC he would not have taken immediate positive steps for its redress. non dormientibus. CITY OF CEBU. We note that petitioner herein is not an unlettered man. not of the sleeping). We cannot. Motorized Section of the Cebu City Police Department (CPD). SERGIO OSMEÑA.R. J. while We fully recognize the special protection which the Constitution.. with back salaries from the date of his ouster until reinstatement. VICENTE PACIFICO.

1958.00. at an increased yearly compensation at P1. petitioner was appointed by then Cebu City Mayor. petitioner was issued another appointment as "driver" of the Cebu Police Department.00. 4. Civilian Employee" of the Cebu Police Department at the increased yearly compensation of P1. 1963. On January 8. true copy of which is marked as Annex "A-3". Cuizon as "Driver. On January 8. Motorized Division of the Cebu Police Department.440. 2. On November 7. Jr.00. 1960. 3 On December 21.920. 1964. 5 On April 14. Deogracias A. 2 The material operative facts in this case. Per stipulation of facts: 3 1. petitioner was removed from his position in the Cebu Police Department without prior investigation or hearing. petitioner was issued another appointment by then Cebu City Mayor Carlos J.attorney's fees. the termination having been made in a letter of dismissal quoted as follows: REPUBLIC OF THE PHILIPPINES CITY OF CEBU Office of the Mayor A p ri l 1 4 . Driver. a true copy of which is hereto attached and marked Annex "A-1". Cebu Police Department Cebu City .040.560. Regis. with a yearly compensation of P1. as driver.00 a true copy of which is hereto attached and marked as Annex "A-2". Ramon Duterte. as admitted by the parties in the stipulation of facts they submitted in the court below and as established by the other evidence introduced by them pursuant to the reservations they made in the stipulation of facts are as follows: I. 1 9 6 4 Mr. as shown by a true copy of his appointment hereto attached and marked Annex "A". petitioner was extended an appointment as "driver (Radio Patrol) Civilian Employee" of the Cebu Police Department at the increased yearly compensation of P2. 1961.

your provisional appointment thereto is hereby terminated effective April 16.Sir: There being no more need for your service as Driver in the Cebu Police Department. B y o r d e r o f t h e M a y o r: ( S G D .) V ic e n t e V . 1964. Please turn over any government property that may have been issued to you to the proper property custodian and have yourself cleared of any accountability during the period of your service. R e s p e c tf u ll y . P a ci fi c o .

85% as shown in the attached copy of "Report of Ratings" marked Annex "B". 1964. Aboitiz Respondents Building Cebu City . 8. 1964.) FERNANDO S. Under date of September 4. 1965. will submit evidence to establish facts not herein stipulated. was filled up by the respondent City Mayor with the appointment of Eduardo Gabiana. The position of the petitioner. a non-civil service eligible as shown in his appointment hereto attached and marked Annex "D". the Executive Secretary to the President indorsed the abovementioned letter to the Commissioner of Civil Service. Petitioner is a civil service eligible. 9. Petitioner is a fourth year student in the College of Liberal Arts in the University of the Visayas as shown by the attached certification marked Annex "C". as shown in the first indorsement hereto attached as Annex "E-2". 7. after his removal. hereto attached as Annexes "E" and "E-1".) JOSE BATIQUIN (T) FERNANDO S. the petitioner has not been afforded the relief of reinstatement by either the Office of the President of the Philippines or by the Civil Service Commissioner. RUIZ (T) JOSE BATIQUIN Attorney for the Assistant City Fiscal Petitioner Counsel for the 2nd Floor. RUIZ (SGD. Since the filing of the instant action. August 20. protesting and appealing his unlawful removal and demanding his reinstatement. Cebu City. after his removal. having passed the patrolman and/or detective (qualified) civil service examination on July 20.S e c r e t a r y t o t h e M a y o r 6. (SGD. however. the petitioner addressed similarly worded letters to the President of the Philippines and the Civil Service Commissioner. On August 20. 1963 with a rating of 76. Parties.

In its Decision of 28 December 1965. 4 and 11. 3. and 4. provided there is no pending administrative or criminal case against the appointee and provided that his efficiency rating for the semester ending 6-30-61 is not below 85%. "F". his efficiency rating is 88%. The last three appointments were for salary adjustments. alleging that he was being suspected as a supporter of the faction of then Congressman Durano. Appointment dated 21 December 1961 — Approved under Section 24(c) of R. No. terminable at the pleasure of the appointing power. No. subject to availability of funds and subject to Section 20 of R. 2260. for record purposes. the highest among the drivers of the CPD he is the only civil service eligible among the drivers in the CPD.A. Appointment dated 8 January 1960 — Approved under Section 24(c) or R.A. 2260. after his ouster. it says: xxx xxx xxx . Per additional evidence formally adduced during the hearing: 10. a photostatic of which was filed. "A-1".A. subject to availability of funds and as exceptional case under Sec.Magallanes corner Jakosalem Cebu City II. provided there is no pending administrative or criminal case against the appointee. the court below dismissed the petition on the ground that petitioner's questioned appointment was temporary in nature and. therefore. 2260. and he attributed his ouster to politics. "F-1"). 2260 as an exception to Section 256 of the Revised Administrative Code. Appointment dated 7 November 1963—Approved under Section 24(c) of R. the City of Cebu created positions of drivers. No. Appointment dated 8 January 1958 — Noted as temporary pending receipt of the required medical certificate. and subject to availability of funds. The records of the Regional Office of the Civil Service Commission in Cebu City do not show that petitioner possesses any civil service eligibility at the time he was appointed as driver. with the clerk in charge of the record section of the CPD on 12 March 1964 (Exhs. Expounding on this. No. Petitioner received his civil service eligibility for patrolman-detective on 8 March 1964.A. 256 of the Revised Administrative Code. "A-2" and "A-3" were as follows: 1. the political rival of respondent Mayor Osmeña. 5 This Court further observes that the actions of the Civil Service Commission on the appointments of petitioner admitted in the Stipulation of Facts and attached thereto as Annexes "A". 2. subject to availability of funds and provided that there is no pending administrative or criminal case against appointee and that the separation of the former incumbent is in order.

Aug. therefore. L-11602. 1957. the essence of which lies in its temporary character and its terminability at pleasure by the appointing power. L-9699. has the right of choice which he may exercise freely according to his judgment. it only certifies an eligible to be possessed of the qualification. Civil Service Rules.) 6 Hence.R. Vol. at the time of his ouster he was already a civil service eligible. Rep. 1964 was that of temporary driver of the CPD. the duration of temporary appointment should not exceed six months. He was still awaiting for the results of the examination for patrolman-detective (qualifying) given by the Civil Service Commission in July of 1963. 1963 were all temporary in nature. et al. 8063. 1958. and it was done without due process in violation of Section 32 of R. his continuance thereafter as a temporary employee was only an extension of grace. 24. but said examination is not intended for or appropriate to. Moreover. No.G. petitioner could have been removed at will by the appointment power. According to him. deciding for himself who is best qualified for any competitive position in the Civil Service. p. instead of dismissing him. 2260 makes a distinction between provisional and temporary appointments. (Cuadra vs. (Jimenez vs. supra. it did not convert his temporary status of driver to a permanent one. (Jimenez vs. 1960. In short. (Sec. 54 O." Petitioner further argues that his last appointment of 7 November 1963 was approved under Section 24(c) of R. the mere certification of the Civil Service Commission of his civil service eligibility for patrolman/detective did not amount to his appointment. Vol. the City Mayor should have extended to him a permanent appointment inasmuch as he had already become a civil service eligible. Republic Act No. G. 7 In support thereof he argues that his removal on the ground that there was "no more need for your service" was not real and true but a mere pretext..) Temporary appointment is similar to one made in an acting capacity. hence. his appointment was provisional because at the time it was extended he was not yet a civil service eligible. December 21.G.A. General Francisco. No. it was a provisional and not a temporary appointment as erroneously classified by the court a quo. for after his ouster one Eduardo Gabiana. the City Mayor. And one who bears such an appointment cannot complain if it is terminated at a moment's notice. The appointing power. Dec. however. etc. Rule IV. 53 O. (Sec. the position of driver. et al. 15. a non-civil service eligible. he claims that his . etc.. was appointed to the vacated position and in the succeeding budget of the City of Cebu more positions of driver were created. Feb. The Civil Service Commission does not ensure any appointment. 1958. as required for a position classified under its rules. General Francisco. p. Act 226. No. this appeal. 28. In his Brief petitioner assigns only one error: The court a quo erred in dismissing his petition.As for the first issue the answer is that his status at the time of his ouster on April 16. 1964 the Civil Service Commission certified to his having passed the patrolman/detective civil service examination with a rating of 75. It is true that on March 5. April 21.R. The former is governed by Section 24(c) while the latter is covered by Section 24(d) thereof. said removal was not for cause. and respondents knew of this fact.A. 8. 1961 and on November 7.) The appointment of the petitioner being temporary or provisional in nature. 1958..85%.. January 8.) Then again.) After the expiration of said period. G. Cordova. His appointments on January 8. 1957. No. he received his report of rating on 8 March 1963 indicating that he passed it. 2260. consequently. 8. 4804. 2260 which provides that 44 no officer or employee in the civil service shall be removed or suspended except for cause provided by law and after due process. having passed the patrolman-detective (qualifying) civil service examination given in July of 1963.

his separation from the service could only be done under R. 27 December 1969. and to make arrests. L-25074. whenever a vacancy occurs and the filling thereof is necessary in the interest of the service and there is no appropriate register of eligibles at the time of appointment. carry an official firearm. petitioner submits that as member of the Cebu City Police at the time of his removal. (d) Temporary appointment. wear an ID as a regular member of the city police. Barreras. — A person may receive a temporary appointment to a position needed only for a limited period not exceeding six months. a provisional appointment and temporary appointment thus: 10 We made a distinction between xxx xxx xxx There is no basis nor logic in appellants' contention that there is no difference between a temporary appointment under Section 24(d) of the Civil Service Act which reads thus: Temporary Appointment.A. For convenience We quote both paragraphs: xxx xxx xxx (c) Provisional appointments — A provisional appointment may be issued upon prior authorization of the Commissioner in accordance with the provisions of the Act and the rules and standards promulgated in pursuance thereto to a person who has not qualified in an appropriate examination but who otherwise meets the requirements for appointment to a regular position in the competitive service..A. 557 under which the City Mayor can only prefer charges but cannot remove. Obviously. provisional appointments are governed by paragraph (c) of Section 24 of R." As correctly stated by petitioner. et al. In Festejo vs.patrolman-detective eligibility is appropriate to his position considering the nature of his office prior to his removal which authorized him to wear the uniform and badge of a regular member of the Cebu Police Department. provided that preference in filing such position be given to persons on appropriate eligible lists. Upon motion of petitioner dated 29 March 1967 8 this Court ordered their brief stricken off the record. provided that a preference in filling such position be given to persons on appropriate eligible lists. 9 We agree with the petitioner that the trial court erred in holding that his appointment is temporary in nature. It had either confused one for the other or considered one as synonymous with the other as shown in the opening sentence of the first paragraph of the portions of the decision hereinbefore quoted wherein it categorized the appointment of petitioner as "temporary or provisional in nature. and a provisional appointment under Section 24(c) which says: . Respondents filed their Brief after the expiration of the reglementary period. — A person may receive a temporary appointment to a position needed only for a limited period not exceeding six months. No. 2260 while temporary appointments are covered by paragraph (d) of said Section. the trial court failed to appreciate the clear distinction between a temporary appointment and a provisional appointment. Finally. No.

104 Phil. 103 Phil." Such contention petition is untenable." In other words. Pinullar vs. In Ata. "while they may be different in the degree of permanence. it is contrary to the ordinary rules of legal hermeneutics to assume that the lawmakers intended these two separate provisions in a seemingly single enumeration of categories of appointments to have the same import or significance. as pointed out by His Honor. the trial judge. vs. a provisional appointment. on the other hand. Namocatcat. even if the appointee has the required civil service eligibility. et al.Provincial appointment. The decisions cited by appellants are not in point. to a person who has not qualified in an appropriate examination but who otherwise meets the requirements for appointment to a regular position in the competitive service. — A provisional appointment may be issued upon the prior authorization of the Commissioner in accordance with the provisions of this Act and the rules and standards promulgated in pursuance thereto to a person who has not qualified in an appropriate examination but who otherwise meets the requirements for appointment to a regular position in the competitive service. Indeed. As early as Piñero. None of them involves a provisional appointment like the one herein in question. 131. a temporary appointment given to a non-civil service eligible is without a definite tenure of office and is dependent upon the pleasure of the appointing power. A provisional appointment is one which may be issued. Hechanova. On the other hand. et al. .. et al. their nature as being subject to termination by the appointing power remains the same. who can be appointed to do it. simply because such is the nature of the work to be done. of course. 12 We held: . in that temporary appointments are generally for and within specified periods of time. vs. L-39703. Even from a cursory reading of these two provisions. et al. 22 October 1966. 30 October 1972. . one can readily see that each of them contemplates an entirely different situation from the other. 24(c). 11 We further elaborated on the distinction: . 391. This is clearly implied by the mandate of the provision that a provisional appointment may be extended only to "a person who has not qualified in an appropriate examination but who otherwise meets the requirements for appointment to a regular position in the competitive service. L-22562. 135). Cordova. On the other hand. upon the prior authorization of the Commissioner of Civil Service in accordance with the provisions of the Civil Service Law and the rules and standards promulgated thereunder. President of the Senate. only that there is no one with appropriate eligibility. They all refer to temporary appointments as such. presupposes that even a non-eligible may be appointed. in the case of a temporary appointment. whenever a vacancy occurs and the filling thereof is necessary in the interest of the service and there is no appropriate register of eligibles at the time of appointment (Sec. Whereas a temporary appointment is designed to fill "a position needed only for a limited period not exceeding six months. As a matter of fact.. supra)." And merely giving preference. under this provision. all that the law enjoins is that "preference in filling such position be given to persons on appropriate eligible lists. According to appellants. is intended for the contingency that "a vacancy occurs and the filling thereof is necessary in the interest of the service and there is no appropriate register of eligibles at the time of appointment. whenever a vacancy occurs and the filling thereof is necessary in the interest of the service and there is no appropriate register of eligibles at the time of appointment." meaning one who must anyway be a civil service eligible. the reason for extending a provisional appointment is not because there is an occasional work or job to be done which is expected to be finished in not more than six months but because the interest of the service requires that certain work be done or functions be performed by a regular employee. his appointment is still temporary." (Citing Cuadra vs. hence any other eligible may be appointed to perform such work or functions in the meanwhile that a suitable eligible does not qualify for the position. again.

We agree. L-26090. January 25. Durano. Accordingly. Ferrer vs. Civil Service Rules). 15 We affirmed the decision of the trial court holding that provisional appointments under Sec. 1967. 13 We held: . L-24416. L-32619. et al. vs. Hechanova. In Lamata. in no case to extend more than thirty days from receipt of the appointing officer of the list of eligibles (Ferrer vs. Hechanova. et al. Hechanova. dated July 1. however. the invalidity thereof can not be declared unless it is first shown that there were appropriate eligibles at the time they were appointed . . 13 and 14.. These facts negated the pretended basis for the dismissal. . without having the requisite appropriate civil service eligibility for said position. 24(c) of R. Accordingly. Rule VI. . The real hidden cause was not that service of the nature and character rendered by petitioner was no longer needed. et al. hence. L-30396. Valencia. Prior to such receipt petitioner may only be removed for cause as provided by law under Section 32 of R. . No. correctly. L-24418. it did not convert his temporary [should be. 30 July 1971. Subido. Even in the case of those holding provisional or probationary appointments .A. Rule IV of the Civil Service Rules provides: xxx xxx xxx . Secs.. . 16 We reiterated our rulings in Piñero vs. No. 2260 can only by terminated thirty days after receipt by the appointing power of a list of eligibles from the Civil Service Commission. Rule IV. but that petitioner had become unacceptable to the appointing authority. as admitted by the parties. 14 We ruled: The position in question is under the classified service. 2260. In Aguilar vs." Section 8. with the court below that the patrolman-detective civil service eligibility of petitioner "is not intended for or appropriate to the position of driver. 1967). the provisional appointment of petitioner remained valid and subsisting.A. Cusi. since there was no certificate of civil service eligibility received by respondent City Mayor. Augusto L. 25 January 1967. 31 October 1972. 8. Piñero vs. . Revised Civil Service Rules. In Ramos vs. Hechanova. immediately after the ouster a non-civil service eligible was appointed to replace petitioner and more driver positions were included in the succeeding budget of the City of Cebu. R. provisional] appointment of driver to a permanent one (Sec. Subido.. A provisional appointment is good only until replacement by a civil service eligible and in no case beyond thirty (30) days from the date of receipt by the appointing officer of the certificate of eligibility (Sec. it could not be availed of in this case since. We are not inclined to give full faith and credit to this testimony considering that this point was not even alleged in the petition. and Ramos vs. 1963. That there was "no more need" for his service was not a valid and lawful cause and even if it were so. he was suspected of supporting the faction of Mr. Hechanova. supra). September 6. Hon. Petitioner testified that his removal was politically motivated. . a political enemy of respondent City Mayor. . Ramos accepted Ms latest appointment thereto.A. 24(c). his appointment can only be deemed provisional and good only until replacement by one holding such appropriate eligibility. In Ferrer vs. 2260.

subject to the provisions of Section 16(h) of said Act as herein amended. . the award for back salaries should not be from the date of his dismissal until reinstatement. after respondent Mayor Osmeña vacated his office his . Although this case refers to a temporary appointment. xxx xxx xxx In Police Commission vs. had been subsequently categorically resolved in favor of holders of provisional appointments by R. in the interim. Respondent City of Cebu did not oppose the dismissal of petitioner and the appointment in his stead of another whose salaries it thereafter paid. 6040. . the fact that private respondent subsequently became a civil service eligible did not ipso facto render permanent the nature of his temporary appointment as to make the question moot and academic. We limited the award for a period of five (5) years. however. and considering the probability that the petitioner might have. No. 18 In Ginson vs. et al. Lood. petitioner's provisional appointment of 7 November 1963 automatically became permanent effective 4 August 1969. which took effect on 4 August 1969. Asedillo. We ruled: Considering however. This matter. the lapse of time spanning almost twenty years—since this controversy rose. Municipality of Murcia. (emphasis supplied). As to who of the respondents should pay the back salaries. We likewise order her reinstatement. eligibility in a certain examination shall serve as qualification for appointment only to the position or positions for which examination was held and no horizontal or vertical conversion of eligibility or examination rating shall be allowed. 24 February 1984. However. L-34637. supra). et al. (Citing Laganapan vs. Pursuant thereto. acquired a new employment. He should also be granted back salaries. 17 We ruled: Under the civil service law then in force. We rule that only respondent City of Cebu should be liable therefor.Except as otherwise provided by law. We therefore rule that petitioner's dismissal was illegal and that he should be reinstated. . all provisional appointments made or appointments approved by the Civil Service Commission under Section 24(C) of Republic Act Numbered Two thousand two hundred sixty prior to the approval of this Act shall automatically be permanent under the provisions of Section twenty-four (b) thereof as amended by this Act. Section 18 thereof provides: .A. . subject to the condition that she has not obtained any other employment in Murcia municipal dentist or any position for which she is qualified by reason of civil service eligibility and subject to the requisites of age and physical fitness. .. the rule laid down equally applies to a provisional appointment. we are constrained to grant her the payment of back salaries equivalent to five (5) years without deduction or qualification.. All respondents were represented by the Assistant City Fiscal of Cebu City and interposed the same defenses. 19 Moreover. In similar cases.

having passed the patrolman and/ordetective (qualified) civil service examination on July 20. a n o n . R e g i s w a s e x t e n d e d a n a p p o i n t m e n t a s " d r i v e r ( R a d i o P a t r o l ) C i v i l i a n Employee" of the Cebu Police. or for which he is qualified by reason of civil service eligibility and subject to the requisites of age and physical fitness. 1 9 6 3 . et.Under date of September 4. the terminatio n having beenmade in a letter of dismissal. Regis was removed from his position in theCebu Police Department without prior investigation or hearing. (b) pay petitioner back salaries. at the rate last received by him. Regis’ appointment is provisional not . Regisaddressed similarly worded letters to the President of t h e P h i l i p p i n e s a n d t h e C i v i l S e r v i c e Commissioner protesting and appealing his unlawful removal and demanding his reinstatement. the trial court failed to appreciate the clear distinction between a temporaryappointment and a provisional appointment." Here. in respect to the course of action taken against petitioner 20 In short. alleging that he was being suspected as a supporter of the faction of thenCongre ssman Durano. the Executive Secretary indorsed the above-mentioned letterto the Commissioner of Civil Service but his protest was not acted upon. T h e t r i a l c o u r t e r r e d i n h o l d i n g that his appointment is temporary in nature. On December 21. 1964. the political rival of respondent Mayor Osmeña and the records of the Regional Office of the Civil Service Commission in Cebu City do not show that Regis possesses any civil service eligibility at the time he was appointed as driver. Deogracias Regis Jr. and (c) pay the costs. Regis attributed hisouster to politics. al. Motorized Division of the Cebu Police Department. 1960. IN VIEW OF ALL THE FOREGOING. Mayor Osmeña. as driver. Civilian Employee" of the Cebu Police. It had either c o n f u s e d o n e f o r t h e o t h e r o r considered one as synonymous with the other as shown in the opening sentence of the firstpar agraph of the portions of the d e c i s i o n h e r e i n b e f o r e q u o t e d w h e r e i n i t c a t e g o r i z e d t h e appointment of petitioner as "temporary or provisional in nature. or to any position of equivalent rank. after his removal. Regiswas issued another appointment. 1963 with a rating of 76. Regis Jr. On January 8. to his position under his appointment of 7 November 1963. 1964. Regis filed an action before theRTC against Osmena et. judgment is hereby rendered REVERSING the Decision appealed from the ORDERING the respondent City of Cebu to (a) reinstate petitioner. Regis’ position after his removal. Osmeña Jr.Obviously. Cuizon. OnN o v e m b e r 7 . 1961. v. 1 9 6 4 . SO ORDERED.85% He is l i k e w i s e a fourth year student in the College of Liberal Arts in the University of the V i s a y a s . subject to the condition that he has not obtained any other employment. was appointed by then Cebu City Mayor.Issue: Whether the RTC erred in dismissing the caseH e l d : Y e s . for a period of five (5) years without qualification and deduction and with interest at the legal rate from the date of his illegal dismissal until the same shall have been fully paid. al to compel them to reinstate him to his former position.c i v i l s e r v i c e e l i g i b l e .Facts: On January 8. O n A u g u s t 2 0 . Cuizon as "Driver.successor. without the objection on the part of the City of Cebu. Regis was issued another appointmentby then Cebu City Mayor Carlos J. RTC dismissedthe complaint on the ground that his appointment was merely temporary thus terminable at thepleasure of appointing power. On April 14. Carlos J. with the appointment of E d u a r d o G a b i a n a . filed a manifestation in the court below to the effect that he adopted the position of his predecessor. RamonDuterte. was filled up by the Mayor Osmeña Jr. respondent City of Cebu confirmed or ratified the action of the Mayor. Regis is a civil service eligible. 1958.

In Ata . to a person who has not qualified in an appropriate examination but who otherwise meets the requirements for appointment to a regularp o s i t i o n i n the competitive service.In Festejo vs. a temporary appointment given to a non-civil servicee l i g i b l e i s w i t h o u t a d e f i n i t e t e n u r e o f o f f i c e a n d i s d e p e n d e n t u p o n t h e p l e a s u r e o f t h e appointing power. presupposes that even a non-eligible may be appointed. t h e C o u r t m a d e a d i s t i n c t i o n b e t w e e n a p r o v i s i o n a l appointment and temporary appointment.A. R. who can be appointed to do it. et al ." And merely giving preference. This is clearly implied by the mandate of the provision that a provisional appointment may bee x t e n d e d o n l y t o " a p e r s o n w h o h a s n o t q u a l i f i e d i n a n a p p r o p r i a t e e x a m i n a t i o n b u t w h o otherwise meets the requirements for a p p o i n t m e n t t o a r e g u l a r p o s i t i o n i n t h e c o m p e t i t i v e service. his appointment is stilltemporary. As a matter of fact. o f course. vs . again. all that the law enjoins is that "preference in filling such p o s i t i o n b e g i v e n to persons on appropriate eligible lists. hence any other eligible may be appointed to performsuch work or functions in the meanwhile that a suitable eligible does not qualify for the position. No. the reason for extending a provisional appointment is notbecause there is an occasional work or job to be done which is expected to be finished in notmore than six months but because the interest of the service requires that certain work be doneor functions be performed by a regular employee. upon the prior authorizat ionof the Commissioner of Civil Service in accordance with the provisions of the Civil Service Lawand the rules and standards promulgated thereunder. None of theminvolves a provisional appointment like the one herein in question. et al . on the o t h e r h a n d ." In other words. They all refer to temporary appointments as such. whenever a vacancy occurs and the filling t h e r e o f i s necessary in the interest of the service and there is no appropriate register of eligibles at thetime of appointment. On the other hand. only that there is no one with appropriateeligibility. A temporary appointment is designed to fill "a positionneeded only for a limited period not exceeding six months. is intended for the contingency that "a vacancy occurs and the filling thereof i s necessary in the interest of the service and there is no appropriate register of eligibles at thetime of appointment. inthe case of a temporary appointment. Barreras. Namocatcat . The decisions cited by appellants are not in point. the Court further elaborated on the distinction bysayin g that a provisional appointment is one which may be issued.temporary. et al .. 6040. a provisional appointment. S e c t i o n 1 8 t h e r e o f provides that all provisional appointments . under thisprovision. . which t o o k e f f e c t o n 4 A u g u s t 1 9 6 9 ." meaning one who must anyway be a civil service eligible. On the other hand. simply because such is the nature of the work to be done. even if the appointee has the required civil service eligibility.

He says he brought this matter to the attention of Asst.made or appointments approved by the Civil ServiceCommission under Section 24(C) of Republic Act Numbered Two thousand two hundred sixty prior to the approval of this Act shall automatically be permanent under the provisions of Sectiontwenty-four (b) thereof as amended by this Act . irregularities in the purchase of motor vehicle license plates. Gancayco Law Office and Moncupa.P. As such. Pangilinan joined the government service on July 18. where he served as Assistant General Manager in charge of finance and administration and also of security and general services. subject to the provisions of Section 16(h) of saidAct as herein amended. 1988. when he was appointed agent in the National Bureau of Investigation. He had risen to Supervising Agent when he resigned to accept appointment as Executive Director of the Land Transportation Office on July 8. petitioner's provisional appointment of 7 November 1963 automatically became permanent effective 4 August 1969 EN BANC G. his removal was made in bad faith. J. 98 and B. 1966. SECRETARY OF THE DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS. vs. among other anomalies. he discovered. 1988 to November 30. immediately after his expose of certain anomalies in which superiors were involved. Pursuant thereto. Torio & Malaya Law Offices for petitioner. Upon his return to the LTO. Worse. THE EXECUTIVE SECRETARY. The petitioner says that from February 19. 104216 August 20. Secretary Manuel Sabalza of the Department of Transportation and Communications and later of . MAGLAYA. GUILLERMO T. respondents. CRUZ. a position for which he had the appropriate civil service eligibility. The license plates ordered were not reflective as required by P. He assumed office on July 16.D. Nos. petitioner. PANGILINAN.R. The Solicitor General for respondents. he was detailed to the Manila International Airport Authority. 1993 TEODORO B. he was designated as Resident Ombudsman in addition to his regular duties. 1987. 43. Teodoro B. 1987.: The petitioner complains that he has been removed from office without due process and just cause in disregard of his constitutional security of tenure.

the Solicitor General argues that Pangilinan was validly separated because he was appointed to the disputed position in an acting capacity only. PANGILINAN. Macaraig. Pangilinan prays for reinstatement on the ground that no charge has been filed or proved against him to justify his removal." He also announced his intention to file graft charges with the Ombudsman against Prado. former Executive Director of said office is not a CES eligible. Secretary Juan V.D. the petitioner continued receiving his salary (although his allowances were withheld) until December 31. Required to comment. 5(1) of P. Hence. and was not appointed to a rank in the CES. 807 which provides that membership in the career executive service requires: (i) that the official must be included in the register of career executive eligibles. (Sgd. the petitioner called a press conference expose what the media later described as "the license plate mess. also of the DOTC. However. Neither of them took any action. and (ii) that the official must have been appointed to an appropriate class in the Career Executive Service. Respondent Augusto B. Jr. TEODORO B. 1991. The petitioner is not a career executive service official. Augusto B. He does not possess the qualifications prescribed for the office of Executive Director of the LTO. and was not extended a permanent appointment. Department of Transportation and Communications is classified as a position belonging to the Career Executive Service (CES). Borra. Araneta for whatever purpose it may serve. 1991. In this petition. This certification is issued upon the request of Atty. 2 where this Court declared: . he was informed by Asst. he could not be. that Maglaya had already been designated as Acting Executive Director of the LTO. JURIDICO Executive Director The respondents also invoke the case of Achacoso v.Secretary Pete Prado. Secretary Prado relieved Pangilinan as Executive Director of the LTO and replaced him with Guillermo Maglaya as officer-in-charge. submitted the following certification from the Executive Director of the Career Executive Service Board: 1 CERTIFICATION This is to certify that the position of Executive Director in the Land Transportation Office. The public respondents cite Sec. The following day. On September 27. Araneta. which is a career executive service position for which only a career executive service official is eligible. This is to certify further that per records of the Career Executive Service Board (CESB). Sabalza and Undersecretary Jose Valdecañas. MR. When he asked why his pay had been discontinued. who was later designated to replace Maglaya.) ELMOR D.

He also argues that his appointment must be likened to the provisional appointment under the old Civil Service Act before it was replaced by P. The petitioner raises a new issue. that neither Guillermo T. His separation also came the following day. Although Gray was holding a primarily confidential position without any fixed term. this Court ordered his reinstatement. including the appropriate eligibility prescribed. 3 Pangilinan likens himself to the petitioner therein who was summarily relieved when. Invoking the case of Gray v." Achacoso did not. De Vera. We held that he had been denied procedural due process and there was no valid cause for his removal. 6 in all of which cases the security of tenure of the dismissed employees was upheld. Pangilinan adds that even on the assumption that his appointment was not permanent. therefore. Robredo (not Regalado). his separation must still be for a valid cause because Article IX-B. Also cited by the petitioner are Cariño v. only as an exception to the rule. he could be replaced only by the President of the Philippines and not by only the Secretary of Transportation and . A person who does not have the requisite qualifications for the position cannot be appointed to it in the first place. functions by authorizing a person to discharge the same pending the selection of a permanent or another appointee. ACCFA. Maglaya nor Augusto B. 7 also from the Executive Director of the Career Executive Service Board. He also argues. At best. He has produced certifications. of the Constitution applies to all officers and employees in the civil service without distinction. his appointment could be regarded only as temporary. or. that even if he were considered only an acting appointee. he nevertheless could not be replaced except by a person possessing the required qualifications. The person named in an acting capacity accepts the position under the condition that he shall surrender the office once he is called upon to do so by the appointing authority. may be appointed to it merely in an acting capacity in the absence of appropriate eligibles. belatedly too. The provisional appointment enjoyed security of tenure. as required by PD 807. The petitioner say he is. to begin with. he sent a telegram to the President of the Philippines imputing irregularities to the directors. The purpose of an acting or temporary appointment is to prevent a hiatus in the discharge of official. In his reply Pangilinan submits that the Achacoso case is not applicable because the petitioner therein was. Ongpin 5 and Jocom v. Araneta is a CES eligible or a career executive service officer. having passed the board examination for certified public accountants." conformably to established jurisprudence. And being so. Such right will have to depend on the nature of his appointment. it could be withdrawn at will by the appointing authority and "at a moment's notice. 4 Floreza v.D. as the board secretary of the People's Homesite and Housing Corporation. The appointment extended to him cannot be regarded as permanent even if it may be so designated.It is settled that a permanent appointment can be issued only "to a person who meets all the requirements for the position to which he is being appointed. to wit. xxx xxx xxx The mere fact that a position belongs to the Career Service does not automatically confer security of tenure on its occupant even if he does not possess the required qualifications. Section 2 (3). 807. that as a presidential appointee. which in turn depends on his eligibility or lack of it. not a civil service eligible.

the Court regarded his separation as a removal and so applied the constitutional prohibition against the suspension or dismissal of an officer or member of the civil service without cause as provided by law. Alajar merely lost the right to hold the office of Vice-Mayor of the City of Roxas by expiration of his term as such. When in November 1955. Gray and the other cases cited by the petitioner involved permanent appointees who therefore had security of tenure. 9 The fact that Pangilinan was qualified for his initial appointment as agent in the NBI does not mean he was qualified for all other positions he might later occupy in the civil service. for "to remove an officer is to oust him from office before the expiration of his term" (Manalang v. 10 It is effected by the will of the superior or by the happening of the contingency. As required by the Court. Quitonano et al. the term of office of Alajar expired and his right to hold office was extinguished. as such. resulting in another and different mode of terminating official relations known as expiration of the term. Jr. like Pangilinan. That was rather loose interpretation of the term "dismissal. Gaz. with the same legal effect as if the term had been fixed by Congress itself. Subsequent decisions have made it clear that where a person holds his position at the pleasure of a superior or subject to some supervening event. 2515). Magarro. his separation from office is not a removal. We must hold for the respondents. 50 Off. This Court has repeatedly held that this guaranty is available only to permanent appointees. Thus. The law does not prescribe uniform qualifications for all public positions regardless of nature or degree. Araneta) possesses the prescribed qualifications for the office. thereby.. he could not claim security of tenure. the term of respondent Alajar as Vice Mayor of the City of Roxas is not fixed by law. There are now only two kinds of appointment under the .. Although Gray was holding a highly confidential position. in the exercise of his aforementioned authority. The petitioner's invocation of the provisional appointment as comparable to his position is a grasping at straws. The provisional appointment has long been abolished and has no legal application or effect in this case.Communications. Gray was extended a permanent appointment whereas Achacoso.. Chief Justice Concepcion explained the distinction between removal and expiration of the term in Alajar v. Pangilinan was only an acting appointee because he did not have the requisite qualifications. Alajar was not removed from office. fixed implicitly by the President. the latter. not Gray. 8 They repeat that the applicable case is Achacoso. in effect. the respondents have submitted a Compliance manifesting that Juan A. In other words. the new appointee to the position of Executive Director of the LTO (replacing Guillermo Maglaya and Antonio B. vests in the President the power to fix such term. Alba 11 thus: In the case at bar." which is defined as the ouster of the incumbent before the expiration of his term. petitioner Alba was designated as Acting Vice-Mayor of said City. could be appointed only in an acting capacity for lack of the prescribed qualifications for the office. the term of respondent Alba was. However.

Indeed. Arroyo. That such temporary appointment shall not exceed twelve months. but the appointee may be replaced sooner if a qualified civil service eligible becomes available. the petitioner's own appointment to the disputed position was signed not by President Corazon C. he was. Pangilinan was not even holding a similar position. his appointment had ceased to be valid even if a qualified replacement was not yet available and consequently had to be discontinued pursuant to the above-quoted provision. while holding a highly confidential. His continued incumbency did not depend upon his enjoyment of the confidence of his superiors who had no personal claim to his loyalty. that the acts of a Department Secretary. that extended term was nevertheless validly terminated with the appointment of his qualified replacement. The petitioner's contention that he could not be relieved by Secretary Prado but only by the President of the Philippines is also a shot in the dark. including the appropriate eligibility prescribed. A permanent appointment shall be issued to a person who meets all the requirements for the position to which he is being appointed. In Gray. like Gray. In exposing what he considered the anomalies in the DOTC. have made no effort whatsoever to justify their motives. we hold that Pangilinan has lost the right to the position of Executive Director of the LTO and so cannot be reinstated therein. while invoking the law to justify his separation. Aquino but by Executive Secretary Joker P. when "performed and promulgated in the regular course of business" are presumptively the acts of the President unless "disapproved or reprobated" by him. even on the assumption that his appointment could be and had been validly extended beyond the one-year limit. Shall the Court end here? There is more to be said. Secretary of the Interior. a temporary appointment. The respondents. — Appointment in the career service shall be permanent or temporary. 13 In view of the foregoing considerations. Strictly speaking. or on July 16. Parenthetically. to wit: Sec. the petitioner's temporary appointment as Executive Director of the LTO should have ended twelve months after he assumed office.Administrative Code of 1987. This is not denied. It is not difficult to see that the petitioner was replaced because of his expose and his threat to bring charges against his superiors. His relief was clearly an act of punishment if not personal vengeance. and does not require further elaboration here. This doctrine dates back to 1939. 27. the Court held that the board secretary. owed his loyalty not to the board but to the government. in accordance with the provisions of law. manifesting his . In the absence of appropriate eligibles and it becomes necessary in the public interest to fill a vacancy. 12 and has been consistently observed since then. From that date. Employment Statues. when it was First laid down by Justice Laurel in Villena v. In the present case. It has long been settled. rules and standards promulgated in pursuance thereof. (2) Temporary appointment. 1988. position. shall be issued to a person who meets all the requirements for the position to which he is being appointed except the appropriate civil service eligibility: Provided. (1) Permanent status.

and especially as a civil servant. Pangilinan's denunciation of the non-reflective license plates we not the act of a rabble-rouser or a publicity-seeker. Under the expanded definition of judicial power in Article VIII. Even if it be supposed that the public respondents acted maliciously when they relieved him in 1991. it is possible that it is Pangilinan who has misinterpreted the law or misread the facts. his reinstatement is still not possible under the law as it now stands. Of this number only 372 or about 18% are occupied by Career Executive Service eligibles. He cited the laws that he claimed had been violated. could not be the basis of Pangilinan's swift and summary replacement. The Court is not prepared to do so at this time because the evidence on this matter is not before it. He suggests that "a ruling by this Honorable Court that would sustain the position of petitioner would go a long way toward the upliftment of the morale of the 'ineligibles. regardless of the motives of his superiors. he sought the attention of the media and told them of his objection to the non-reflective license plates. indeed. he was exercising his right as a citizen. The record shows that he quietly brought the matter to the attention of his superiors. Pangilinan was separated the day immediately following his press conference.'" . For all we know. of the Constitution. But it is not as simple as that. that Pangilinan's charges are valid. He narrated his efforts to prevent their violation.concern for the government whose interests he wanted to protect. Obviously. giving reasons for his misgivings. But true or not. the charges per se. The petitioner warns that the dismissal of his petition would open the door to the summary separation of civil servants to the prejudice of the integrity and independence of the civil service. He claims that "there are about 2. The Court sees the action as a retaliation. if a civil servant could be summarily removed from his position for the "sin" of complaining about the irregularities of his superiors. This is not to say. In doing all these. including those in the civil service. and standing alone." 14 The rest may be summarily separated as acting appointees and are therefore subject to the whims of their superiors. He spoke of the indifference of his superiors. It would be a sorry day. Section 1. of course. The obstinate fact is that. Feeling frustrated. he is not entitled to it now. The Court sees that termination as a punishment. Pangilinan no longer had any right to the disputed position when he was separated from it in 1991. there is a satisfactory explanation for the attitude of his superiors.067 CESO positions in the entire Philippine civil service. to denounce official misconduct and improve the public service. They took no action. the Court can declare the acts of the public respondents as tainted with grave abuse of discretion and therefore invalid. He ceased to be entitled to it in 1988 upon the lapse of the maximum period for his acting appointment. The public respondents say they were merely terminating his incumbency in accordance with existing law. This would not only impair the integrity of the civil service but also undermine the campaign to encourage the public. to expose and denounce venality in government.

regrettably. Davide. We can do no more. and even this Court cannot break the chains. Griño-Aquino. Indeed they are not. The citizen comes to us in quest of law but we must also give him justice. or even by implementing regulations.J. There are times. Narvasa C. dissenting: The ponencia lucidly states the facts. despite our doubts about its wisdom. SO ORDERED.Assuming that the petitioner's statistics are correct. This emphasizes. The two are not always the same. No costs. Feliciano. the fallacy that for every legal wrong there is a judicial remedy. Qualifications for public officers are prescribed by the Constitution or the law. Commission on Elections.. we have no power to give the petitioner the qualifications he does not possess. the petition is DISMISSED. cannot repeal or amend it. when justice is shackled by the law. In Javier v. In the case at bar. the doctrine announced in Achacoso may be used to muzzle and punish legitimate complaint and even to persecute "difficult" subordinates. WHEREFORE. 15 we said: The Supreme Court is not only the highest arbiter of legal questions but also the conscience of the government. the law he invokes for the protection of his right has instead denied him the justice he seeks and deserves. we can only interpret and apply the law and. As demonstrated in this case. Regalado. unfortunately. J. Jr.. That doctrine. As judges. The problem posed by the petitioner is a serious threat to the integrity and independence of the civil service. Padilla. JJ. For ironically. The Court is not a panacea. is only an interpretation and application by the Court of the law as enacted by the legislative and implemented by the executive. Petitioner joined the government service in 1966 as an agent of the National Bureau of Investigation. Untrue. the Court can only share his trepidation. That doctrine can change only if the laws and regulations on which it was based are also changed. but not by the decisions of courts. Bidin. not by this Court but by the political departments. He served the NBI for about twenty (20) years . Bellosillo. Melo Quiason and Vitug. no less sadly. Nocon. and sadly so for the petitioner. Separate Opinions PUNO. concur. let it be stressed...

petitioner was stopped. As its resident ombudsman. respondents filled up his position with ineligibles. If the petitioner is such a victim. 1987. To my mind. Maglaya has already been designated as Acting Executive Director of the LTO. In addition. he displayed rare courage by exposing in public and in print the license plate mess allegedly involving no less than his top superior. The end-result of the ponencia is unfortunate for it offers no succor to a public official who was wantonly terminated from office not for doing bad but ironically for doing good to the government. After the EDSA revolution. He did not give up and on September 27. Rightfully. Maglaya turned out to be not a "CES eligible" nor a "Career Service Executive Officer. Petitioner. was the crusading kind. he was designated as its Resident Ombudsman. the issue is whether the petitioner has been the subject of intentional. While promoting honesty and integrity in the public service. Atty. however. He faithfully discharged his duties as Acting Executive Director of the LTO. however. Haste breeds errors." The search for a qualified person ended with the appointment of Juan A. In their desire to eliminate petitioner at once. Petitioner was merely allowed to receive his salary but minus allowances but even that privilege was to last only until December 31. he enjoys certain rights which cannot be violated because they are protected by the laws of the . Undersecretary Jose Valdecanas and Asst. including the notorious purchase of motor vehicle non-reflective license plates. by then Executive Secretary Joker Arroyo. Magano to the same position. Here is petitioner who could well be a role model for other government officials. malicious and wrongful acts which ought to be proscribed. former Secretary Prado. he called their attention to the stinking mess. The result is undoubtedly inequitous. however. it dismissed the petitioner on the ground that as an acting official with no eligibility. With due deference. It was when petitioner seriously took his job as Resident Ombudsman that he got into problems. he was unceremoniously relieved by Secretary Prado who designated Atty. however. the ponencia branded the termination of petitioner as a "punishment". yet the ponencia posits the disquieting proposition that this is a case "when justice is shacked by the law even this Court cannot break the chains.and slowly rose to the position of Supervising Agent. He threatened to file graft charges against his own superiors: Secretary Pete Nicomedes Prado." It is my humble submission that these shackles are more of straws which this Court can break off. he called a press conference and blew the whistle on what the press denounced as the license plate mess. even his salary was stopped and he was informed that Atty. He was given the sphinx treatment.. Feeling he will get the attentive ear of his superiors. Araneta. it is my submittal that the ponencia has unduly focused on the lack of security of tenure of the petitioner. For even granting that petitioner is merely an acting Executive Officer of the LTO. Secretary Manuel Sabalza of the Department of Transportation and Communications. Thereafter. petitioner has no right to security of tenure. He unearthed court corruptions in his office. The retaliation against petitioner was." He was changed by Augusto B. 1991. swift and severe. 1991. Guillermo Maglaya as officer-in-charge of the office. who was no better. Araneta was also neither a "CES eligible" nor a "Career Service Executive Officer. he was appointed as Executive Director of the Land Transportation Office on July 8. Jr. The day after his expose. divested of his office using as convenient cover his status as a temporary official. Regrettably. it is not material that he does not enjoy security of tenure.

Again. I vote to grant the petition and to annul the dismissal of petitioner because it will enhance the State policy "to maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption (Art. It is evident that this appointment is part of the malicious machination to remove petitioner by fair and foul method. The malice of respondents exhibit itself when they relieved petitioner on the pretense he has no eligibility and yet recklessly appointed to the same position. sec. the benefit is incidental and ought to be allowed. Appointments in acting capacity may be preferred to be extended by the unscrupulous for they know that they possess the sword of Damocles over these kind of appointees as they can be removed under the pretext that they have no security of tenure. it will give more life to the postulate that a public office is a public trust. sec. it will go no further than to hold that the temporary nature of one's employment cannot be misused to frustrate good government. 221 the Constitution). rules and regulations that classify government officials into permanent and temporary have one objective and that is. When they realized their recklessness. It is plain that they removed petitioner not to strengthen the civil service with better qualified officials but to perpetrate an act of vendetta. In order to vindicate the right of the petitioner. In sum. There is no law that gives a license to abuse a government official just because he has no security of tenure.. If the annulment of the illegal acts will lead to petitioner's reinstatement for a short while. Romero. II. loyalty and efficiency. With due respect. it will frustrate the misuse of our civil service rule on security of tenure to promote bad government. concurs. In taking this suggested stance. honesty and good faith by his superior officials. J. said official has a right to their immediate abatement and it is the unavoidable duty of this Court to check-off their continuance. 1 of the Constitution). Public officers and employees must at all times be accountable to the people. These protected rights were in no way waived or diminished by his acceptance of a government job in an acting or temporary capacity. integrity. act with patriotism and justice" (Art XI. who were equally ineligible. . they appointed Magano to legalize the illegal. serve them with utmost responsibility. It is self-evident that these civil service laws. I shudder at the mischiefs that may flow from the ponencia. Messrs. The making of this mischief could not have been intended by our civil service laws.land. The ruling merely recognizes the right of petitioner to be protected from certain illegal acts even if he is an acting official. I submit that Magano cannot profit from the fruits of this crude cover-up. rules and regulations. this Court will not be ruling that petitioner has security of tenure to his office for it is conceded that the law grants him none. even as an acting official he cannot be denied his constitutional right to due process and equal protection of the laws and his statutory right to be treated with justice. I do not consider the later appointment of Juan Magano as an insuperable obstacle. Maglaya and Araneta. his reinstatement is not a recognition of his irremovability for he may later be terminated in accordance with law. To interpret them in a manner that will not enhance our efforts to establish good government is to ignore this noble intent. and hopefully. the promotion of good government. When such injustices and abuses are perpetrated. For instance.

he called their attention to the stinking mess. however. The retaliation against petitioner was. Araneta was also neither a "CES eligible" nor a "Career Service Executive Officer. He threatened to file graft charges against his own superiors: Secretary Pete Nicomedes Prado. was the crusading kind. While promoting honesty and integrity in the public service. The result is undoubtedly . Feeling he will get the attentive ear of his superiors. however. former Secretary Prado. 1987. petitioner has no right to security of tenure. who was no better. Here is petitioner who could well be a role model for other government officials. He unearthed court corruptions in his office. J. Petitioner joined the government service in 1966 as an agent of the National Bureau of Investigation. respondents filled up his position with ineligibles. the issue is whether the petitioner has been the subject of intentional. he was unceremoniously relieved by Secretary Prado who designated Atty.." He was changed by Augusto B.. Atty. With due deference. the ponencia branded the termination of petitioner as a "punishment". malicious and wrongful acts which ought to be proscribed. Petitioner was merely allowed to receive his salary but minus allowances but even that privilege was to last only until December 31. he was appointed as Executive Director of the Land Transportation Office on July 8. He did not give up and on September 27. Araneta. He served the NBI for about twenty (20) years and slowly rose to the position of Supervising Agent. he was designated as its Resident Ombudsman. however.# Separate Opinions PUNO. To my mind. 1991. Maglaya has already been designated as Acting Executive Director of the LTO. Haste breeds errors. Jr. even his salary was stopped and he was informed that Atty. by then Executive Secretary Joker Arroyo. Magano to the same position. After the EDSA revolution. Rightfully. It was when petitioner seriously took his job as Resident Ombudsman that he got into problems. The day after his expose. he displayed rare courage by exposing in public and in print the license plate mess allegedly involving no less than his top superior. The end-result of the ponencia is unfortunate for it offers no succor to a public official who was wantonly terminated from office not for doing bad but ironically for doing good to the government. Undersecretary Jose Valdecanas and Asst. however. In addition. Regrettably. Secretary Manuel Sabalza of the Department of Transportation and Communications. Petitioner. it is not material that he does not enjoy security of tenure. it dismissed the petitioner on the ground that as an acting official with no eligibility. swift and severe. As its resident ombudsman. Maglaya turned out to be not a "CES eligible" nor a "Career Service Executive Officer." The search for a qualified person ended with the appointment of Juan A. he called a press conference and blew the whistle on what the press denounced as the license plate mess. He faithfully discharged his duties as Acting Executive Director of the LTO. petitioner was stopped. Thereafter. including the notorious purchase of motor vehicle non-reflective license plates. He was given the sphinx treatment. dissenting: The ponencia lucidly states the facts. Guillermo Maglaya as officer-in-charge of the office. If the petitioner is such a victim. 1991. divested of his office using as convenient cover his status as a temporary official. it is my submittal that the ponencia has unduly focused on the lack of security of tenure of the petitioner. In their desire to eliminate petitioner at once.

sec. I shudder at the mischiefs that may flow from the ponencia. I do not consider the later appointment of Juan Magano as an insuperable obstacle. II. the benefit is incidental and ought to be allowed. who were equally ineligible. said official has a right to their immediate abatement and it is the unavoidable duty of this Court to check-off their continuance. Messrs. Maglaya and Araneta. Public officers and employees must at all times be accountable to the people. For even granting that petitioner is merely an acting Executive Officer of the LTO. It is plain that they removed petitioner not to strengthen the civil service with better qualified officials but to perpetrate an act of vendetta. the promotion of good government. yet the ponencia posits the disquieting proposition that this is a case "when justice is shacked by the law even this Court cannot break the chains. The malice of respondents exhibit itself when they relieved petitioner on the pretense he has no eligibility and yet recklessly appointed to the same position. integrity. serve them with utmost responsibility. Appointments in acting capacity may be preferred to be extended by the unscrupulous for they know that they possess the sword of Damocles over these kind of appointees as they can be removed under the pretext that they have no security of tenure. rules and regulations that classify government officials into permanent and temporary have one objective and that is. It is self-evident that these civil service laws. . act with patriotism and justice" (Art XI. When such injustices and abuses are perpetrated. this Court will not be ruling that petitioner has security of tenure to his office for it is conceded that the law grants him none. I vote to grant the petition and to annul the dismissal of petitioner because it will enhance the State policy "to maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption (Art. For instance. rules and regulations. they appointed Magano to legalize the illegal. The making of this mischief could not have been intended by our civil service laws. These protected rights were in no way waived or diminished by his acceptance of a government job in an acting or temporary capacity. In order to vindicate the right of the petitioner. When they realized their recklessness. To interpret them in a manner that will not enhance our efforts to establish good government is to ignore this noble intent. he enjoys certain rights which cannot be violated because they are protected by the laws of the land. With due respect. 221 the Constitution). If the annulment of the illegal acts will lead to petitioner's reinstatement for a short while. even as an acting official he cannot be denied his constitutional right to due process and equal protection of the laws and his statutory right to be treated with justice. it will give more life to the postulate that a public office is a public trust. The ruling merely recognizes the right of petitioner to be protected from certain illegal acts even if he is an acting official. honesty and good faith by his superior officials. Again.inequitous. I submit that Magano cannot profit from the fruits of this crude cover-up. There is no law that gives a license to abuse a government official just because he has no security of tenure. It is evident that this appointment is part of the malicious machination to remove petitioner by fair and foul method. loyalty and efficiency. it will go no further than to hold that the temporary nature of one's employment cannot be misused to frustrate good government. his reinstatement is not a recognition of his irremovability for he may later be terminated in accordance with law. In sum." It is my humble submission that these shackles are more of straws which this Court can break off. In taking this suggested stance.

1996." The latter condition has not been qualified by any safeguard. it will frustrate the misuse of our civil service rule on security of tenure to promote bad government. petitioner. The CSC found that: x x x the appointment of Orcullo is contractual and co-terminous with the Philippine Assistance Program Support Project and that it carries the stipulated condition "Unless terminated sooner. Undersecretary Francisco F. thus. Appellant Orcullo. Said stipulations in the contract may include the mode or manner of separations. CIVIL SERVICE COMMISSION and COORDINATING COUNCIL OF THE PHILIPPINE ASSISTANCE PROGRAM. His employment was contractual and co-terminous with the said project which was to end on January 30.[3] .. Executive Director of CCPAP. DECISION KAPUNAN.: Petitioner Norberto A. Orcullo. petitioner appealed the same to the Civil Service Commission (CSC). and hopefully. said separation was later validated by the confirmation of the head office. And the cause therefore includes and is not proscribed to derogatory record. In the instant case. terminating petitioner's contractual employment with said agency effective September 30. JR.[2] In a Letter dated September 20. J. from one Jorge M. He is.sec. 1996. 1996 or six (6) months from his assumption to office. 1 of the Constitution). 1996. EN BANC [G. was aware that his services might be terminated anytime. was hired as Project Manager IV by the Coordinating Council of the Philippine Assistance Program (CCPAP)-BOT Center effective March 11.R. (Underscoring ours) On the issue of the proper official who should effect such termination. respondents. 2000. 972309 dismissing petitioner's appeal. the next lower official of the Center may do so. Aggrieved by his dismissal. And whatever is stipulated therein governs the relationship between the parties. petitioner received a Memorandum. Jr. not protected by the security of tenure clause of the Constitution. appellant was separated from the service particularly for unsatisfactory performance. confirmed petitioner's termination as project manager of CCPAP. del Rosario. vs. 2001] NORBERTO ORCULLO. 138780. 1996. Assistant Director of CCPAP.[1] On September 23. misbehavior or incompetence or hostile attitudes. 1997. when he accepted said contractual-coterminous appointment. Briones. dated September 20. On April 2. the respondent CSC issued Resolution No. May 22. The contract is the law between the parties. No. In this case.

He asseverates that even co-terminous employees like himself enjoy security of tenure as embodied in the Constitution. regardless of their status of employment. his services cannot be terminated without just cause and without the observance of due process. but the duration of the PAPS support project itself. which in no case shall exceed one year. 9. .[4] Hence. or which is coterminous with that of the appointing authority or subject to his pleasure. the phrase "unless terminated sooner" refers not to the duration of his employment. 1998. SO ORDERED. xxx[5] . the CSC denied said motion in its Resolution No. or which is limited to the duration of a particular project for which purpose employment was made. under his own responsibility with a minimum of direction and supervision from the hiring agency. He claims that since the PAPS project was still ongoing. On July 30. to be accomplished within a specific period. and (2) tenure which is limited to a period specified by law. are protected by the tenurial security right embodied in the Constitution. requiring special or technical skills not available in the employing agency. Petitioner raises the sole issue of whether employees in the public service. It is undisputed that petitioner's employment with CCPAP is contractual and co-terminous in nature. contrary to the findings of the CSC. the Court of Appeals rendered a decision. Petitioner argues that. 1997. Costs against petitioner. the dispositive portion of which reads as follows: WHEREFORE. Such a co-terminous employment falls under the non-career service classification of positions in the Civil Service: Sec.Petitioner filed a motion for reconsideration of the above resolution. Petitioner's arguments are bereft of merit. this petition. filed a petition for review with the Court of Appeals. Non-Career Service. and performs or accomplishes the specific work or job. 1997. petitioner. 973099. On August 14. for lack of merit. On June 17.The Non-Career Service shall be characterized by (1) entrance on bases other than those of the usual tests of merit and fitness utilized for the career service. the petition in the above entitled case is hereby DISMISSED. (Underscoring ours) The Non-Career Service shall include: xxx (4) Contractual personnel or those whose employment in the government is in accordance with a special contract to undertake a specific work or job. through counsel.

Petitioner cannot now renege from the stipulation invoking security of tenure under the Constitution and the Civil Service Law. in that after the resignation. The employment contract is written in plain and unambiguous language.when appointment is co-existent with the tenure of the appointing authority or at his pleasure. he was subsequently dismissed because of his inability to work with the other staff members of the project and to participate effectively in meetings regarding the project. Briones to the petitioner. (2) Co-terminous with the appointing authority . sent by Mr.” We quote with approval said court’s ruling on the matter. 292 provides: Sec.” Thus. or co-existent with his tenure. resulting in loss of trust in him by his superiors.when the appointment is co-existent with the appointee. 1996 to January 30. The records will show that petitioner garnered an unsatisfactory rating during the probationary period of his employment. (Underscoring ours) The co-terminous status may thus be classified as follows: (1) Co-terminous with the project . thus: xxx. dated September 20. which reads as follows: . With petitioner's stature.when the appointment is co-existent with the duration of a particular project for which purpose employment was made or subject to the availability of funds for the same.appointment is for a specific period and upon expiration and upon thereof. This much can be gleaned from the Memorandum. but to the project itself. and (4) Co-terminous with a specific period . while such employment is co-terminous with the PAPS project. (Underscoring ours) (3) Co-terminous with the incumbent . meaning his entrance and continuity in the service is based on trust and confidence of the appointing power. or limited by the duration of project or subject to the availability of funds. 2000 if terminated by the other contracting party-employer CCPAP. 14.[6] (Underscoring ours) Granting arguendo that said disputed phrase refers not to the duration of petitioner’s employment. A perusal of petitioner’s employment contract will reveal that his employment with CCPAP is qualified by the phrase “unless terminated sooner. nevertheless. he could not have misunderstood it.Additionally. We agree with the appellate court’s intepretation of the phrase “unless terminated sooner” to mean “that his contractual job as Project Manager IV from March 11. petitioner was validly terminated for cause.[7] After due notice. An appointment may also be co-terminous which shall be issued to a person whose entrance and continuity in the service is based on the trust and confidence of the appointing authority or that which is subject to his pleasure. 2000 could end anytime before January 30. the position is deemed abolished. 1996. Section 14 of the Omnibus Rules Implementing Book V of Executive Order No. The fact is he belongs to the non-career service whose appointment is co-terminous. separation or termination of the services of the incumbent the position shall be deemed automatically abolished. petitioner nevertheless serves at the pleasure of the appointing authority as this is clearly stipulated in his employment contract.

VICENTE S. EN BANC G. RAYALA. The Court of Appeals found that petitioner was informed of his unsatisfactory performance in his job as project manager about two weeks prior to his termination. ZAPANTA. VII of the 1987 Constitution which provides: Sec. IRENEO B. ROGELIO I. CALDERON. BATUHAN and OSCAR N. IRENEA E. or chanrobles virtual law library . petitioner filed a complaint-appeal to the CSC. PUTONG. WHEREFORE. J. 16. appoint the heads of the executive departments.: Controversy is focused anew on Sec. No. BUAT. petitioner filed a motion for reconsideration thereof. ROMEO B. BARTOLOME CARALE. in their capacity as Commissioners of the National Labor Relations Commission. LOURDES C. ERNESTO G. 1992 PETER JOHN D. Thereafter. LADRIDO III. upon receipt of the memorandum terminating his services. CENIZA. with the consent of the Commission on Appointments. and GUILLERMO CARAGUE. in his capacity as Secretary of Budget and Management. we find petitioner's claim that he was deprived of due process unavailing.This is to confirm my verbal advise to you made last 4 September 1996 regarding your unsatisfactory performance during the probationary period of your contractual employment with the CCPAP BOT Center. Petitioner. in his capacity as Chairman of the National Labor Relations Commission. JAVIER. GONZAGA. dated April 2. ABELLA. DOMINGO H. BERNABE S. EDNA BONTO PEREZ. LEON G. RUSTICO L.R. Thus. 16. 1997. The President shall nominate and. 91636 April 23. BERNARDO. Respondents. VELOSO III. chanroblesvirtualawlibrary chanrobles virtual law library PADILLA. SO ORDERED.E. DIOKNO.. Art. MUSIB M. (Underscoring supplied) xxx[8] Finally. As advised. JR. he cannot now claim that he was not given the opportunity to be heard. vs. your inability to work with the other staff in the Center as well as participate in outside meetings are the main reasons for the rating which have resulted in the loss of my confidence in your ability to do your job as a Manager. the instant petition for certiorari is hereby DISMISSED for lack of merit. other public ministers and consuls. When the CSC affirmed his dismissal in its Resolution. ambassadors.

The Congress may. . . . the Court explained: . Commissioner of the Bureau of Customs. In the 1987 Constitution. agencies. 16. . Mison 2 as follows: . . it follows that the appointment by the President of the Chairman of the CHR is to be made without the review or participation of the Commission on Appointments. as already pointed out. there was no reason to use in the third sentence of Sec. . without submitting his nomination to the Commission on Appointments for confirmation. VII of the 1987 Constitution." (emphasis supplied) Next came Mary Concepcion Bautista v. . the appointment of the Chairman and Members of the Commission on Human Rights is not specifically provided for in the Constitution itself. Art. 16. 16. while the 1935 Constitution includes "heads of bureaus" among those officers whose appointments need the consent of the Commission on Appointments. we rule that the President of the Philippines acted within her constitutional authority and power in appointing respondent Salvador Mison. because the power to appoint officers whom he (the president) may be authorized by law to appoint is already vested in the President. Article VII the word "alone" after the word "President" in providing that Congress may by law vest the appointment of lower-ranked officers in the President alone. as already pointed out. Adhering to the doctrine in Mison. the 1987 Constitution. by law. VII. 16. however. Art. Consequently. . Consequently. without need of confirmation by the Commission on Appointments. chanroblesvirtualawlibrary chanrobles virtual law library . in the second sentence of the same Sec. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law. VII. As a matter of fact.officers of the armed forces from the rank of colonel or naval captain. it is evident that the position of Commissioner of the Bureau of Customs (a bureau head) is not one of those within the first group of appointments where the consent of the Commission on Appointments is required. unlike the Chairmen and Members of the Civil Service Commission. the Commission on Elections and the . appointments to which are to be made with the confirmation of the Commission on Appointments. the clear and expressed intent of its framers was to exclude presidential appointments from confirmation by the Commission on Appointments. 1 chanrobles virtual law library The power of the Commission on Appointments (CA for brevity) to confirm appointments. or in the heads of departments. or boards. chanroblesvirtualawlibrary chanrobles virtual law library . commissions. whether voluntary or compulsory. except appointments to offices expressly mentioned in the first sentence of Sec. contained in the aforequoted paragraph 1 of Sec. . . . 3this time involving the appointment of the Chairman of the Commission on Human Rights. Salonga. chanroblesvirtualawlibrary chanrobles virtual law library The President shall have the power to make appointments during the recess of the Congress. or in the heads of departments. Article VII. on the other hand. Since the position of Chairman of the Commission on Human Rights is not among the positions mentioned in the first sentence of Sec. To be more precise. but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. or in the courts. deliberately excluded the position of "heads of bureaus" from appointments that need the consent (confirmation) of the Commission on Appointments. was first construed in Sarmiento III vs. vest the appointment of other officers lower in rank in the President alone. Art. 16. in the courts. and those whom he may be authorized by law to appoint. and other officers whose appointments are vested in him in this Constitution.

" referred to in the first sentence of Section 16. . VI may be filled by appointment by the President by express provision of Section 7. these doctrines are deducible: chanrobles virtual law library 1. Appointments to any vacancy shall come from the nominees of the sector which nominated the predecessor. et al. Consistent with its rulings in Mison and Bautista. The Executive Labor Arbiters and Labor Arbiters shall also be appointed by the President.. amending the Labor Code (PD 442) was approved. VII. chanroblesvirtualawlibrary chanrobles virtual law library 2. President Aquino appointed the Chairman and Commissioners of the NLRC representing the public. whose appointments are expressly vested by the Constitution in the president with the consent of the Commission on Appointments. Civil Service and Election). et al. . 5 May 1987. The president appoints the Chairman and Members of The Commission on Human Rights pursuant to the second sentence in Section 16. the Division Presiding Commissioners and other Commissioners shall all be appointed by the President. in Teresita Quintos Deles. Confirmation by the Commission on Appointments is required only for presidential appointees mentioned in the first sentence of Section 16. or provides in an unconstitutional manner for such appointments. Since the seats reserved for sectoral representatives in paragraph 2. Confirmation is not required when the President appoints other government officers whose appointments are not otherwise provided for by law or those officers whom he may be authorized by law to appoint (like the Chairman and Members of the Commission on Human Rights). The appointments stated that the appointees may qualify and enter upon the performance of the duties of the office.Commission on Audit. After said . including. upon recommendation of the Secretary of Labor and Employment. it is indubitable that sectoral representatives to the House of Representatives are among the "other officers whose appointments are vested in the President in this Constitution. Article VII. workers and employers sectors. Executive Order No. as observed in Mison. Also." And Section 2(c). without the confirmation of the Commission on Appointments because they are among the officers of government "whom he (the President) may be authorized by law to appoint. authorizes the President to appoint the Chairman and Members of the Commission on Human Rights. Art. those officers whose appointments are expressly vested by the Constitution itself in the president (like sectoral representatives to Congress and members of the constitutional commissions of Audit. subject to confirmation by the Commission on Appointments. Art. XVIII of the Constitution. 163. It provides in Section 13 thereof as follows: xxx xxx xxx The Chairman. VII whose appointments are subject to confirmation by the Commission on Appointments. 5 chanrobles virtual law library Pursuant to said law (RA 6715). Art. v. that is. The Commission on Constitutional Commissions. rules and regulations. chanroblesvirtualawlibrary chanrobles virtual law library Sometime in March 1989. Art. when Congress creates inferior offices but omits to provide for appointment thereto. 4the power of confirmation of the Commission on Appointments over appointments by the President of sectoral representatives in Congress was upheld because: . From the three (3) cases above-mentioned. and shall be subject to the Civil Service Law. Section 5. the officers are considered as among those whose appointments are not otherwise provided for by law. RA 6715 (Herrera-Veloso Law).

chanroblesvirtualawlibrary chanrobles virtual law library Had it been the intention to allow Congress to expand the list of officers whose appointments must be confirmed by the Commission on Appointments. 161. Article VII by expanding the confirmation powers of the Commission on Appointments without constitutional basis. the Constitution would have said so by adding the phrase "and other officers required by law" at the end of the first sentence. series of 1989. "with the consent of the Commission on Appointments" at the end of the second sentence. ambassadors. and those whom he may be authorized by law to appoint. of the Constitution. 215 of the Labor Code as amended by said RA 6715. on the other hand. chanroblesvirtualawlibrary chanrobles virtual law library The Solicitor General. as Congress may. our Constitution has significantly omitted to provide for such additions. Art. contends that RA 6715 which amended the Labor Code transgresses Section 16. chanroblesvirtualawlibrary chanrobles virtual law library Petitioner insists on a mandatory compliance with RA 6715 which has in its favor the presumption of validity. With respect to the other officers whose appointments are not otherwise provided for by the law and to those whom the President may be authorized by law to appoint. by law. or officers of the armed forces from the rank of captain or commander. designating the places of assignment of the newly appointed commissioners. public ministers. consuls. then Labor Secretary Franklin Drilon issued Administrative Order No." . the President issued permanent appointments to the respondents without submitting them to the CA for confirmation despite passage of a law (RA 6715) which requires the confirmation by the Commission on Appointments of such appointments. Petitioner claims that the Mison and Bautista rulings are not decisive of the issue in this case for in the case at bar. such as the members of the various Constitutional Commissions. chanroblesvirtualawlibrary chanrobles virtual law library The original text of Section 16 of Article VII of the present Constitution as embodied in Resolution No. require confirmation by the Commission on Appointments of other officers appointed by the President additional to those mentioned in the first sentence of Section 16 of Article VII of the Constitution. or the phrase. 517 of the Constitutional Commission reads as follows: "The President shall nominate and. RA 6715 is not. without submitting the same to the Commission on Appointments for confirmation pursuant to Art.appointments. other public ministers and consuls. The Congress may by law vest the appointment of inferior officers in the President alone. Evidently. VII. confirmation by the Commission on Appointments is required exclusively for the heads of executive departments. chanroblesvirtualawlibrary chanrobles virtual law library This petition for prohibition questions the constitutionality and legality of the permanent appointments extended by the President of the Philippines to the respondents Chairman and Members of the National Labor Relations Commission (NLRC). according to petitioner. an encroachment on the appointing power of the executive contained in Section 16. ambassadors. and other officers whose appointments are vested in the President by the Constitution. with the consent of the Commission on Appointments. and all other officers of the Government whose appointments are not herein otherwise provided for by law. Mison and Bautista laid the issue to rest. with the following exposition: As interpreted by this Honorable Court in the Mison case. no confirmation by the Commission on Appointments is required. shall appoint the heads of the executive departments and bureaus. in the courts or in the heads of the department. officers of the armed forces from the rank of colonel or naval captain. says the Solicitor General.

all other officers of the Government whose appointments are not otherwise provided for by law. chanrobles virtual law library Second. the three (3) stage process of nomination. officers lower in rank whose appointments the Congress may by law vest in the President alone. the heads of the executive departments. chanroblesvirtualawlibrary chanrobles virtual law library Third. the appointments of heads of bureaus were required to be confirmed by the Commission on Appointments. chanroblesvirtualawlibrary chanrobles virtual law library To resolve the issue. 517. confirmation and appointment operates. officers of the armed forces from the rank of colonel or naval captain. VII of the Constitution whose appointments require confirmation by the Commission on Appointments. there are four (4) groups of officers whom the President shall appoint. chanroblesvirtualawlibrary chanrobles virtual law library Respondent reiterates that if confirmation is required. This amendment. the president's appointment pursuant to the 2nd and 3rd sentences needs no confirmation. in the final version of Resolution No. other officers whose appointments are not provided for by law. as embodied in Section 16 of Article VII of the present Constitution. in both of them. those whom the president may be authorized by law to appoint. 7 . and those whom he may be authorized by law to appoint) are excluded from the list of those officers whose appointments are to be confirmed by the Commission on Appointments. under the 1935 Constitution the word "nominate" qualifies the entire Subsection 3 of Section 10 of Article VII thereof. These four (4) groups. require confirmation by the Commission on Appointments of appointments extended by the president to government officers additional to those expressly mentioned in the first sentence of Sec. chanrobles virtual law library Fourth. . other public ministers and consuls. "whose appointments are not otherwise provided for by law to appoint" are expressly made subject to confirmation by the Commission on Appointments. reflected in Section 16 of Article VII of the Constitution. are: First. 6 chanrobles virtual law library The only issue to be resolved by the Court in the present case is whether or not Congress may. Art. 16. chanroblesvirtualawlibrary chanrobles virtual law library First. but the word nominate does not any more appear in the 2nd and 3rd sentences. However. clearly shows the intent of the framers to exclude such appointments from the requirement of confirmation by the Commission on Appointments. to which we will hereafter refer from time to time. by law. 517. the appointments of other officers.Three points should be noted regarding sub-section 3 of Section 10 of Article VII of the 1935 Constitution and in the original text of Section 16 of Article VII of the present Constitution as proposed in Resolution No. in both of them. the appointment of the above mentioned officers (heads of bureaus. ambassadors. and other officers whose appointments are vested in him in this Constitution. chanrobles virtual law library Third. Therefore. This is only true of the first group enumerated in Section 16. . chanroblesvirtualawlibrary chanrobles virtual law library Second. we go back to Mison where the Court stated: .

VII refers to all other officers of the government whose appointments are not otherwise provided for by law and those whom the President may be authorized by law to appoint. and (2) the exclusion of appointments made under the second sentence of the section from the same requirement. it is unconstitutional because: chanrobles virtual law library 1) it amends by legislation.Mison also opined: In the course of the debates on the text of Section 16. Regretfully. The Court respects the laudable intention of the legislature. 16. To the extent that RA 6715 requires confirmation by the Commission on Appointments of the appointments of respondents Chairman and Members of the National Labor Relations Commission. The settled rule supported by numerous authorities is a restatement of the legal maxim "legis interpretado legis vim obtinent" . since this Court's construction merely establishes the contemporaneous legislative intent that the law thus construed intends to effectuate. more specifically under the "third groups" of appointees referred to in Mison. Article VII whose appointments requires confirmation by the Commission on Appointments. . Article VII of the Constitution. . in a way. the NLRC Chairman and Commissioners fall within the second sentence of Section 16. Undeniably. there were two (2) major changes proposed and approved by the Commission. 16. by imposing the confirmation of the Commission on Appointments on appointments which are otherwise entrusted only with the President. chanroblesvirtualawlibrary chanrobles virtual law library Deciding on what laws to pass is a legislative prerogative. chanroblesvirtualawlibrary chanrobles virtual law library Supreme Court decisions applying or interpreting the Constitution shall form part of the legal system of the Philippines. and chanrobles virtual law library 2) it amends by legislation the second sentence of Sec. Bautista and Quintos-Deles have interpreted Art. the first sentence of Sec. The interpretation upon a law by this Court constitutes. Art. VII. David. Art. 10 chanrobles virtual law library The rulings in Mison. The second sentence of Sec. the Chairman and Members of the NLRC are not among the officers mentioned in the first sentence of Section 16. 215 of the Labor Code. 11 the Court held: . Art. insofar as it requires confirmation of the Commission on Appointments over appointments of the Chairman and Member of the National Labor Relations Commission (NLRC) is. chanroblesvirtualawlibrary chanrobles virtual law library Indubitably. . Determining their constitutionality is a judicial function. as we see it. Sec. 16 consistently in one manner. These were (1) the exclusion of the appointments of heads of bureaus from the requirement of confirmation by the Commission on Appointments. 16. Can legislation expand a constitutional provision after the Supreme Court has interpreted it? chanrobles virtual law library In Endencia and Jugo vs. 8No doctrine or principle of law laid down by the Court in a decision rendered en banc or in division may be modified or reversed except by the Court sitting en banc. 13 of RA 6715 amending Art. 9 . a part of the law as of the date that law was originally passed. beyond redemption if we are to render fealty to the mandate of the Constitution in Sec. . . Art. VII of the Constitution. those whom the President may be authorized by law to appoint. however. the constitutional infirmity of Sec. VII thereof.the interpretation placed upon the written law by a competent court has the force of law. 16. i.e. VII of the Constitution by adding thereto appointments requiring confirmation by the Commission on Appointments.

emphasis supplied). a final court determination of a case based on a judicial interpretation of the law or of the Constitution may be undermined or even annulled by a subsequent and different interpretation of the law or of the Constitution by the Legislative department that would be neither wise nor desirable. and as long as it it speaks not only in the same words. (11 Am. the legislature would be usurping a judicial function in defining a term. xxx xxx xxx The rule is recognized elsewhere that the legislature cannot pass any declaratory act. 15 . . Jur. . Jur. but the same in meaning . The Constitution did not change with public opinion. Article VIII of the Constitution. and was voted and adopted by the people . by a declaration that it shall be so construed as not to violate the constitutional inhibition. especially after the courts have in actual case ascertained its meaning by interpretation and applied it in a decision. 14 (Emphasis supplied) Congress. chanroblesvirtualawlibrary chanrobles virtual law library It is not only the same words. must estimate the scope of its constitutional powers when it sets out to enact legislation and it must take into account the relevant constitutional prohibitions. This is more true with regard to the interpretation of the basic law." found in Section 9.. but with the same meaning and intent with which it spoke when it came from the hands of its framers. of course. upon passing law which violates a constitutional provision. must interpret the Constitution. . . A legislative definition of a word as used in a statute is not conclusive of its meaning as used elsewhere. . the Constitution. Under such a system. Republic Act No. or what a specific portion of the Constitution means. 919. otherwise." 17 chanrobles virtual law library It can not be overlooked that Sec. referring to the salaries of judicial officers. 16. VII of the 1987 Constitution was deliberately. intended by the framers of the 1987 Constitution to be a departure from the system embodied in the 1935 Constitution where the Commission on Appointments exercised the power of . validate it so as to prevent an attack thereon in the courts.. This is a clear example of interpretation or ascertainment of the meaning of the phrase "which shall not be diminished during their continuance in office. which is not within the sphere of the Legislative department. particularly those governing the separation of powers. (11 Am. 590. If the Legislature may declare what a law means. 914.. . 16 chanrobles virtual law library The function of the Court in passing upon an act of Congress is to "lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former" and to "announce its considered judgment upon the question.By legislative fiat as enunciated in Section 13. or act declaratory of what the law was before its passage. chanroblesvirtualawlibrary chanrobles virtual law library The legislature cannot. so as to give it any binding weight with the courts. not unconsciously. this would surely cause confusion and instability in judicial processes and court decisions. being clearly violative of the fundamental principles of our constitutional system of government. We have already said that the Legislature under our form of government is assigned the task and the power to make and enact laws. Art. but not to interpret them. emphasis supplied). Congress says that taxing the salary of a judicial officer is not a decrease of compensation.

The deliberate limitation on the power of confirmation of the Commission on Appointments over presidential appointments. Until then. Matibag (“Petitioner” for brevity) questions the constitutionality of the appointment and the right to hold office of the following: (1) Alfredo L. shall appoint the heads of the executive departments and bureaus. JR. RESURRECCION Z.: The Case Before us is an original Petition for Prohibition with prayer for the issuance of a writ of preliminary injunction and a temporary restraining order under Rule 65 of the 1997 Rules of Civil Procedure. VELMA J. and GIDEON C. leading to many cases of abuse of such power of confirmation. officers of the Army from the rank of colonel. No. FLORENTINO A. Section 10.R. Art. if indeed a problem. Finance Services Department of the Commission on Elections. chanroblesvirtualawlibrary chanrobles virtual law library SO ORDERED. chanroblesvirtualawlibrary chanrobles virtual law library WHEREFORE. The solution to the apparent problem.. J. Angelina G. J. it is the duty of the Court to apply the 1987 Constitution in accordance with what it says and not in accordance with how the legislature or the executive would want it interpreted. the petition is DISMISSED. embodied in Sec. The President shall nominate and with the consent of the Commission on Appointments. BORRA. 149036. . ALFREDO L.confirmation over almost all presidential appointments. and all other officers of the Government whose appointments are not herein otherwise provided for. Art. . 2002] MA. Art. respondents. of the Navy and Air Forces from the rank of captain or commander. has undoubtedly evoked the displeasure and disapproval of members of Congress. BENIPAYO. and those whom he may be authorized by law to appoint. MATIBAG. is not judicial or legislative but constitutional. vs. 215 of the Labor Code as amended by RA 6715 insofar as it requires the confirmation of the Commission on Appointments of appointments of the Chairman and Members of the National Labor Relations Commission (NLRC) is hereby declared unconstitutional and of no legal force and effect. Benipayo (“Benipayo” for . J. Subsection 3. TUASON. 16. DE GUZMAN in his capacity as Officer-In-Charge. A future constitutional convention or Congress sitting as a constituent (constitutional) assembly may then consider either a return to the 1935 Constitutional provisions or the adoption of a hybrid system between the 1935 and 1987 constitutional provisions. EN BANC [G. VII of the 1935 Constitution provided: 3. VII of the 1987 Constitution. ANGELINA G. April 2. DECISION CARPIO. petitioner. CINCO. Petitioner Ma. .

Commissioner Sadain questioned Benipayo’s failure to consult the Commissioner-in-Charge of the EID in the reassignment of petitioner. reminding heads of government offices that “transfer and detail of employees are prohibited during the election period beginning January 2 until June 13. 2008.” Benipayo denied her request for reconsideration on April 18.brevity) as Chairman of the Commission on Elections (“COMELEC” for brevity). 2001. President Macapagal Arroyo renewed again the ad interim appointments of Benipayo. Borra and Tuason for confirmation. On April 16. Benipayo as COMELEC Chairman. Borra and Tuason to the same positions. and (2) Resurreccion Z. Cinco[1] (“Cinco” for brevity) as Director IV of the COMELEC’s Education and Information Department (“EID” for brevity). President Arroyo renewed the ad interim appointments of Benipayo. 2001. Jr.[13] Petitioner cited Civil Service Commission Memorandum Circular No. Thus. 2001 the ad interim appointments of Benipayo. 2000. Commissioner Rufino S. 2001[12] addressed to the COMELEC en banc. 2001. Tuason. 2001. (“Tuason” for brevity) as COMELEC Commissioners. 2001. the Commission on Appointments did not act on said appointments.[7] They took their oaths of office for a second time. 3300 dated November 6. 2001 their appointments to the Commission on Appointments for confirmation.[8] Congress adjourned before the Commission on Appointments could act on their appointments. 2001. In his capacity as COMELEC Chairman.[9] The Office of the President submitted their appointments for confirmation to the Commission on Appointments. The Office of the President submitted to the Commission on Appointments on May 22. COMELEC EID Commissioner-in-Charge Mehol K. Demetriou renewed the appointment of petitioner as Director IV of EID in a “Temporary” capacity. expiring on February 2. then Chairperson Harriet O. The Facts On February 2. Javier renewed again the appointment of petitioner to the same position in a “Temporary” capacity.B.[14] citing COMELEC Resolution No. Borra and Tuason to the same positions and for the same term of seven years.[3] and Borra[4] and Tuason[5] as COMELEC Commissioners.[2] On March 22. President Gloria Macapagal Arroyo appointed. Petitioner also questions the legality of the appointment of Velma J. Borra (“Borra” for brevity) and Florentino A. Borra and Tuason likewise took their oaths of office and assumed their positions as COMELEC Commissioners.[6] However. 2001. Benipayo took his oath of office and assumed the position of COMELEC Chairman. On June 1.[10] They took their oaths of office anew. 2000. petitioner requested Benipayo to reconsider her relief as Director IV of the EID and her reassignment to the Law Department. On February 15. 7 dated April 10. each for a term of seven years and all expiring on February 2. which states in part: . ad interim. designating Cinco Officer-in-Charge of the EID and reassigning petitioner to the Law Department. 1999. Specifically. the COMELEC en banc appointed petitioner as “Acting Director IV” of the EID. 2008. Sadain objected to petitioner’s reassignment in a Memorandum dated April 14. The Office of the President transmitted on June 5. On February 15. Benipayo issued a Memorandum dated April 11. 2001. 2001[11] addressed to petitioner as Director IV of the EID and to Cinco as Director III also of the EID. on June 8.

has RESOLVED. whether or not the renewal of their ad interim appointments and subsequent assumption of office to the same positions violate the prohibition on reappointment under Section 1 (2). Article IX-C of the Constitution. petitioner challenges the designation of Cinco as Officer-in-Charge of the EID.” Petitioner appealed the denial of her request for reconsideration to the COMELEC en banc in a Memorandum dated April 23. the Omnibus Election Code and other election laws.[15] Petitioner also filed an administrative and criminal complaint[16] with the Law Department[17] against Benipayo. President Macapagal Arroyo renewed once again the ad interim appointments of Benipayo as COMELEC Chairman and Borra and Tuason as Commissioners. THEREFORE. Petitioner. questions the legality of the disbursements made by COMELEC Finance Services Department Officer-in-Charge Gideon C. as an exception to the foregoing prohibitions. for a term of seven years expiring on February 2. Petitioner also assails as illegal her removal as Director IV of the EID and her reassignment to the Law Department. Article IX-C of the Constitution. 2. Assuming that the first ad interim appointments and the first assumption of office by Benipayo. 2008. Whether or not the assumption of office by Benipayo. In the meantime. respectively. Borra and Tuason. as it is hereby RESOLVED. rules and regulations. Borra and Tuason are legal. 2001. Civil Service Memorandum Circular No. COMELEC Resolution No. 07. 2001. on September 6. when necessary in the effective performance of its mandated functions during the prohibited period. Simultaneously. as Chairman and Commissioners of the COMELEC. alleging that her reassignment violated Section 261 (h) of the Omnibus Election Code. . 001. During the pendency of her complaint before the Law Department. 3258. and other pertinent administrative and civil service laws. as well as on the prohibitions on temporary appointments and reappointments of its Chairman and members. Borra and Tuason on the basis of the ad interim appointments issued by the President amounts to a temporary appointment prohibited by Section 1 (2). s. moreover. Petitioner claims that the ad interim appointments of Benipayo. respectively. to appoint. Borra and Tuason violate the constitutional provisions on the independence of the COMELEC.“NOW. petitioner filed the instant petition questioning the appointment and the right to remain in office of Benipayo. Whether or not the instant petition satisfies all the requirements before this Court may exercise its power of judicial review in constitutional cases. Borra and Tuason by way of salaries and other emoluments. 3. provided that the changes in the assignment of its field personnel within the thirty-day period before election day shall be effected after due notice and hearing. The Issues The issues for resolution of this Court are as follows: 1. De Guzman to Benipayo. hire new employees or fill new positions and transfer or reassign its personnel.[18] They all took their oaths of office anew. the Commission on Elections by virtue of the powers conferred upon it by the Constitution.

(3) the exercise of the judicial review is pleaded at the earliest opportunity. Respondents also contend that petitioner failed to question the constitutionality of the ad interim appointments at the earliest opportunity. Consequently. (2) a personal and substantial interest of the party raising the constitutional issue. Tuason and Cinco. the constitutionality of the ad interim appointments is not the lis mota of this case. Whether or not the Officer-in-Charge of the COMELEC’s Finance Services Department. her reassignment is without legal basis if Benipayo is not the lawful COMELEC Chairman. Borra. 5. which is co-equal with this Court. having been done without the approval of the COMELEC as a collegial body. Whether or not Benipayo’s removal of petitioner from her position as Director IV of the EID and her reassignment to the Law Department is illegal and without authority. Borra or Tuason. Petitioner filed the petition only on August 3.”[21] Evidently. and as the Commission’s Chief Executive Officer. We are not persuaded. Neither does petitioner claim to be directly injured by the appointments of these three respondents. Respondents point out that petitioner does not claim to be lawfully entitled to any of the positions assumed by Benipayo. to the Law Department. and (4) the constitutional issue is the lis mota of the case. Respondents insist that the real issue in this case is the legality of petitioner’s reassignment from the EID to the Law Department. is acting in excess of jurisdiction. . Borra and Tuason unless all the four requisites are present. Borra and Tuason and their assumption of office. where she was placed on detail service. Borra and Tuason were issued as early as March 22. the petition was filed after the third time that these three respondents were issued ad interim appointments. Moreover. First Issue: Propriety of Judicial Review Respondents assert that the petition fails to satisfy all the four requisites before this Court may exercise its power of judicial review in constitutional cases. Respondents maintain that petitioner does not have a personal and substantial interest in the case because she has not sustained a direct injury as a result of the ad interim appointments of Benipayo.[20] Respondents claim that the reassignment was “pursuant to x x x Benipayo’s authority as Chairman of the Commission on Elections.4. Benipayo reassigned petitioner from the EID. The real issue then turns on whether or not Benipayo is the lawful Chairman of the COMELEC. Even if petitioner is only an Acting Director of the EID.[19] Respondents argue that the second. 2001 despite the fact that the ad interim appointments of Benipayo. respondents anchor the legality of petitioner’s reassignment on Benipayo’s authority as Chairman of the COMELEC. where she was Acting Director. respondents urge this Court to refrain from reviewing the constitutionality of the ad interim appointments issued by the President to Benipayo. third and fourth requisites are absent in this case. These are: (1) the existence of an actual and appropriate controversy. an office created by the Constitution. in continuing to make disbursements in favor of Benipayo. 2001. Out of respect for the acts of the Executive department.

which is the earliest opportunity for pleading the constitutional issue before a competent body. the issue raised by petitioner is of paramount importance to the public. it cannot be considered at the trial. which provides as follows: “The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Moreover. Petitioner’s personal and substantial injury. Second Issue: The Nature of an Ad Interim Appointment Petitioner argues that an ad interim appointment to the COMELEC is a temporary appointment that is prohibited by Section 1 (2). when the first ad interim appointments were issued as early as March 22. Clearly. and the last Members for three years. public interest requires the resolution of the constitutional issue raised by petitioner. petitioner has a personal and material stake in the resolution of the constitutionality of Benipayo’s assumption of office. Appointment to any vacancy shall be only for the unexpired term of the predecessor. the time when a constitutional issue may be passed upon. this Court may determine. then petitioner’s reassignment is legal and she has no cause to complain provided the reassignment is in accordance with the Civil Service Law. Borra and Tuason. the lis mota of this case is the very constitutional issue raised by petitioner. Unless the constitutionality of Benipayo’s ad interim appointment and assumption of office is resolved. if not considered at the trial. such that. the legality of petitioner’s reassignment hinges on the constitutionality of Benipayo’s ad interim appointment and assumption of office. and. 2001. this Court may even brush aside technicalities of procedure and resolve any constitutional issue raised. three Members shall hold office for seven years.On the other hand. in the exercise of sound discretion. In no case shall any Member be appointed or designated in a temporary or acting capacity. The legality of the directives and decisions made by the COMELEC in the conduct of the May 14. if Benipayo is the lawful COMELEC Chairman because he assumed office in accordance with the Constitution. without reappointment. Clearly. “if it is not raised in the pleadings. if Benipayo is not the lawful COMELEC Chairman. Moreover. the legality of petitioner’s reassignment from the EID to the Law Department cannot be determined. In keeping with this Court’s duty to determine whether other agencies of government have remained within the limits of the Constitution and have not abused the discretion given them. 2001 national elections may be put in doubt if the constitutional issue raised by petitioner is left unresolved. The earliest opportunity to raise a constitutional issue is to raise it in the pleadings before a competent court that can resolve the same. 2001. However. two Members for five years.[23] There is no doubt petitioner raised the constitutional issue on time.” (Emphasis supplied) .”[22] Petitioner questioned the constitutionality of the ad interim appointments of Benipayo. clothes her with the requisite locus standi to raise the constitutional issue in this petition.[24] Here the petitioner has complied with all the requisite technicalities. Furthermore. it cannot be considered on appeal. Article IX-C of the Constitution. Petitioner filed the instant petition only on August 3. Respondents harp on petitioner’s belated act of questioning the constitutionality of the ad interim appointments of Benipayo. Of those first appointed. Borra and Tuason when she filed her petition before this Court. In any event. it is not the date of filing of the petition that determines whether the constitutional issue was raised at the earliest opportunity.

Ozaeta. Article IX-C of the Constitution. signifying that it can no longer be withdrawn or revoked by the President. Prior to his confirmation. The fact that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. 1948. whether voluntary or compulsory. but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress.” (Emphasis supplied) Thus. Article VII of the Constitution. and can even be disapproved or simply by-passed by the Commission on Appointments. namely the Civil Service Commission and the Commission on Audit. which provides that the ‘President shall have the power to make appointments during the recess of the Congress. The fear that the President can withdraw or revoke at any time and for any reason an ad interim appointment is utterly without basis. respectively. We find petitioner’s argument without merit. but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. For this reason. More than half a century ago. this Court had already ruled that an ad interim appointment is permanent in character. Section 10. The last sentence of Section 1 (2). The second paragraph of Section 16. the ad interim appointment remains effective until such disapproval or next adjournment. there can be no ad interim appointment to the COMELEC or to the other two constitutional commissions.Petitioner posits the view that an ad interim appointment can be withdrawn or revoked by the President at her pleasure.’ It is an appointment . The Constitution itself makes an ad interim appointment permanent in character by making it effective until disapproved by the Commission on Appointments or until the next adjournment of Congress. Article VII of the Constitution provides as follows: “The President shall have the power to make appointments during the recess of the Congress. Petitioner interprets the last sentence of Section 1 (2) of Article IX-C to mean that the ad interim appointee cannot assume office until his appointment is confirmed by the Commission on Appointments for only then does his appointment become permanent and no longer temporary in character. petitioner claims that an ad interim appointment is temporary in character and consequently prohibited by the last sentence of Section 1 (2). we held that: “x x x an ad interim appointment is one made in pursuance of paragraph (4). Based on petitioner’s theory. Article IX-C of the Constitution is also found in Article IX-B and Article IX-D providing for the creation of the Civil Service Commission and the Commission on Audit. the appointee is at the mercy of both the appointing and confirming powers since his appointment can be terminated at any time for any cause. a Sword of Damocles hangs over the head of every appointee whose confirmation is pending with the Commission on Appointments. The rationale behind petitioner’s theory is that only an appointee who is confirmed by the Commission on Appointments can guarantee the independence of the COMELEC. In Summers vs. In the words of petitioner. An ad interim appointment is a permanent appointment because it takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office.[25] decided on October 25. A confirmed appointee is beyond the influence of the President or members of the Commission on Appointments since his appointment can no longer be recalled or disapproved.

which is originally vested by the University Charter with the power of appointment. It is not so with reference to ad interim appointments. petitioner argues that an ad interim appointment is undoubtedly temporary in character. the term is not descriptive of the nature of the appointments given to him. it is used to denote the manner in which said appointments were made. and the circumstance that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. Court of Appeals. and only upon the consent of the Commission on Appointments may the person thus named assume office. But such is not the meaning nor the use intended in the context of Philippine law. it is not indicative of whether the appointment is temporary or in an acting capacity. In referring to Dr.[28] where the Court stated: “We have already mentioned that an ad interim appointment is not descriptive of the nature of the appointment. His title to such office is complete. The term. although not found in the text of the Constitution. The appointee can at once assume office and exercise. or to discharge the duties of the office during the absence or temporary incapacity of its regular incumbent (Black’s Law Dictionary.[27] where we explained that: “x x x From the arguments. and thus an ad interim appointment takes effect immediately. In Pacete vs. Said appointment is of course distinguishable from an ‘acting’ appointment which is merely temporary. means a permanent appointment made by the President in the meantime that Congress is in recess. Revised Fourth Edition.” (Emphasis supplied) Thus. The term is defined by Black to mean “in the meantime” or “for the time being”. that is. the President nominates. while the Board of Regents. It takes effect at once. the . 1978). The Court had again occasion to explain the nature of an ad interim appointment in the more recent case of Marohombsar vs.” Hence. Perhaps. as used in letters of appointment signed by the President. Rather. Intermediate Appellate Court. The individual chosen may thus qualify and perform his function without loss of time. it is easy to see why the petitioner should experience difficulty in understanding the situation. all the powers pertaining to the office. it is the literal translation of the word ‘ad interim’ which creates such belief. This argument is not new and was answered by this Court in Pamantasan ng Lungsod ng Maynila vs.” (Emphasis supplied) The Constitution imposes no condition on the effectivity of an ad interim appointment.[26] this Court elaborated on the nature of an ad interim appointment as follows: “A distinction is thus made between the exercise of such presidential prerogative requiring confirmation by the Commission on Appointments when Congress is in session and when it is in recess. an officer ad interim is one appointed to fill a vacancy. It does not mean a temporary appointment that can be withdrawn or revoked at any time. Secretary of the Commission on Appointments. done by the President of the Pamantasan in the meantime. is unable to act. Esteban’s appointments. the term “ad interim appointment”. good until another permanent appointment is issued. An ad interim appointment is disapproved certainly for a reason other than that its provisional period has expired. has acquired a definite legal meaning under Philippine jurisprudence. that is.’” Petitioner cites Black’s Law Dictionary which defines the term “ad interim” to mean “in the meantime” or “for the time being. Thus. Private respondent had been extended several ‘ad interim’ appointments which petitioner mistakenly understands as appointments temporary in nature.permanent in nature. In the instant case. In the language of the Constitution. the appointment is effective ‘until disapproval by the Commission on Appointments or until the next adjournment of the Congress. x x x. as a de jure officer. rather it denotes the manner in which the appointment was made. In the former.

in effect. This is the kind of appointment that the Constitution prohibits the President from making to the three independent constitutional commissions. The withdrawal or revocation of an ad interim appointment is possible only if it is communicated to the appointee before the moment he qualifies.” . Petitioner’s submission that private respondent’s ad interim appointment is synonymous with a temporary appointment which could be validly terminated at any time is clearly untenable. These two causes are resolutory conditions expressly imposed by the Constitution on all ad interim appointments. He can only be removed for cause. he acquires a legal right to the office which is protected not only by statute but also by the Constitution. Thus. and any withdrawal or revocation thereafter is tantamount to removal from office. The second cause is the adjournment of Congress without the Commission on Appointments acting on his appointment.[32] this Court struck down as unconstitutional the designation by then President Corazon Aquino of Associate Commissioner Haydee Yorac as Acting Chairperson of the COMELEC. was issued without condition nor limitation as to tenure. No cause need be established to justify its revocation. Yorac. no matter how briefly. The permanent status of private respondent’s appointment as Executive Assistant II was recognized and attested to by the Civil Service Commission Regional Office No. however.[30] Once an appointee has qualified. including the COMELEC. can complain because it is the Constitution itself that places the Sword of Damocles over the heads of the ad interim appointees. consistent with the requirements of due process. 12. xxx The Constitution provides for many safeguards to the independence of the Commission on Elections. will not be estopped from challenging its withdrawal. It is doubtful if the respondent. a Sword of Damocles over the heads of ad interim appointees. foremost among which is the security of tenure of its members. These resolutory conditions constitute.”[29] Thus. Jr.” (Emphasis supplied) An ad interim appointee who has qualified and assumed office becomes at that moment a government employee and therefore part of the civil service. an appointment or designation in a temporary or acting capacity can be withdrawn or revoked at the pleasure of the appointing power. This Court ruled that: “A designation as Acting Chairman is by its very terms essentially temporary and therefore revocable at will. an ad interim appointment becomes complete and irrevocable once the appointee has qualified into office. He enjoys the constitutional protection that ”[n]o officer or employee in the civil service shall be removed or suspended except for cause provided by law.appointment extended to private respondent by then MSU President Alonto. having accepted such designation. An ad interim appointment can be terminated for two causes specified in the Constitution. The first cause is the disapproval of his ad interim appointment by the Commission on Appointments. the designation of the respondent as Acting Chairman of the Commission on Elections may be withdrawn by the President of the Philippines at any time and for whatever reason she sees fit. That guarantee is not available to the respondent as Acting Chairman of the Commission on Elections by designation of the President of the Philippines.[31] A temporary or acting appointee does not enjoy any security of tenure. While an ad interim appointment is permanent and irrevocable except as provided by law. Assuming its validity. Ad interim appointments are permanent but their terms are only until the Board disapproves them. in Brillantes vs. No one. after notice and hearing.

We declared then: “It would be more in keeping with the intent.did not provide for ad interim appointments. considering that we are not certain of the length of involuntary recess or adjournment of the Congress.[33] a case decided under the 1935 Constitution. To hold that the independence of the COMELEC requires the Commission on Appointments to first confirm ad interim appointees before the appointees can assume office will negate the President’s power to make ad interim appointments. which did not have a provision prohibiting temporary or acting appointments to the COMELEC. purpose and aim of the framers of the Constitution to appoint a permanent Commissioner than to designate one to act temporarily.Earlier. but we cannot leave to conjecture the matter of involuntary recess. It will also run counter to the clear intent of the framers of the Constitution. BERNAS: That is correct. This is contrary to the rule on statutory construction to give meaning and effect to every provision of the law. While the Constitution mandates that the COMELEC “shall be independent”[36]. this Court nevertheless declared unconstitutional the designation of the Solicitor General as acting member of the COMELEC. Bautista. is it necessary to provide for ad interim appointments? Perhaps there should be a little discussion on that. the framers of the Constitution thought it wise to reinstate the provisions of the 1935 Constitution on ad interim appointments. BERNAS: X x x our compulsory recess now is only 30 days. xxx MS. Benipayo. FR. unlike Commissioner Haydee Yorac in Brillantes vs. this provision should be harmonized with the President’s power to extend ad interim appointments. the President did in fact appoint permanent Commissioners to fill the vacancies in the COMELEC. because of the need to avoid disruptions in essential government services. This Court ruled that the designation of an acting Commissioner would undermine the independence of the COMELEC and hence violate the Constitution. The following discussion during the deliberations of the Constitutional Commission elucidates this: “FR. We are certain. The original intention of the framers of the Constitution was to do away with ad interim appointments because the plan was for Congress to remain in session throughout the year except for a brief 30-day compulsory recess. They were not appointed or designated in a temporary or acting capacity. . Article VII of the Constitution . I wonder if the Commissioner has a formula x x x.” (Emphasis supplied) In the instant case. during the recess of Congress. Bautista. Borra and Tuason were extended permanent appointments during the recess of Congress. this might present problems in terms of anticipating interruption of government business. However. to make appointments that take effect immediately. but we are trying to look for a formula. So under such circumstances. Yorac[34] and Solicitor General Felix Bautista in Nacionalista Party vs. of the involuntary adjournment of the Congress which is 30 days. however. AQUINO: My concern is that unless this problem is addressed.on the nomination of officers subject to confirmation by the Commission on Appointments . subject only to confirmation by the Commission on Appointments.[35] The ad interim appointments of Benipayo. in Nacionalista Party vs. Borra and Tuason are expressly allowed by the Constitution which authorizes the President. The original draft of Section 16.

2001. In his concurring opinion in Guevara vs. pursuant to her appointment papers. 2002. the timely application of the last sentence of Section 16. By this reckoning. if they expired before the session of Congress. Suddenly and unexpectedly.[39] promulgated on December 13.” (Emphasis supplied) Indeed. with national elections looming less than three . BENGZON: Madam President. would end on February 2. xxx THE PRESIDENT: Is there any objection to the proposed amendment of Commissioners Aquino and Bengzon. explained the rationale behind ad interim appointments in this manner: “Now. Commission on Appointments. who was elevated to this Court. adding a paragraph to the last paragraph of Section 16? (Silence) The Chair hears none. the wordings of which are in the 1935 Constitution: THE PRESIDENT SHALL HAVE THE POWER TO MAKE APPOINTMENTS DURING THE RECESS OF CONGRESS WHETHER IT BE VOLUNTARY OR COMPULSORY BUT SUCH APPOINTMENTS SHALL BE EFFECTIVE ONLY UNTIL DISAPPROVAL BY THE COMMISSION ON APPOINTMENTS OR UNTIL THE NEXT ADJOURNMENT OF THE CONGRESS. Inocentes. Following the decision of this Court in Gaminde vs. while that of Commissioner Julio F. Commissioner Aquino and I propose the following amendment as the last paragraph of Section 16. once Congress has adjourned. 2001. the evil aforementioned may easily be conjured by the issuance of other ad interim appointments or reappointments. the terms of office of three Commissioners of the COMELEC. Because the same evil would result if the appointments ceased to be effective during the session of Congress and before its adjournment. Article VII of the Constitution barely avoided the interruption of essential government services in the May 2001 national elections. This is otherwise called the ad interim appointments. Demetriou was appointed only on January 11. including the three constitutional commissions. there were three vacancies in the seven-person COMELEC.[41] the original expiry date of the term of her predecessor. including the Chairman. regardless of the date of their actual appointment. Justice Bernardo P.[42] The original expiry dates of the terms of office of Chairperson Demetriou and Commissioners Flores and Desamito were therefore supposed to fall after the May 2001 elections. until February 15. 2000 to serve. the date of ratification of the Constitution. Upon the other hand. 1987. 2002. Desamito was November 3. 2000. Jr. the reinstatement in the present Constitution of the ad interim appointing power of the President was for the purpose of avoiding interruptions in vital government services that otherwise would result from prolonged vacancies in government offices. Justice Roberto Concepcion.xxx MR. the evil sought to be avoided – interruption in the discharge of essential functions – may take place.[38] decided under the 1935 Constitution.”[37] (Emphasis supplied) Clearly. The original expiry date of the term of Commissioner Teresita Dy-Liacco Flores was also February 15. apropos of the matter raised by Commissioner Aquino and after conferring with the Committee. the terms of office of constitutional officers first appointed under the Constitution would have to be counted starting February 2. because of the Gaminde ruling.[40] Then COMELEC Chairperson Harriet O. the amendment is approved. why is the lifetime of ad interim appointments so limited? Because. Pardo.

Chairperson Demetriou and Commissioner Flores vacated their offices on February 2. there would only have been one division functioning in the COMELEC instead of two during the May 2001 elections. right after the tumultuous EDSA II and EDSA III events. Borra and Tuason. the Eleventh Congress adjourned from January 9. During an election year. Evidently. 2001 to June 3. First. Article VII of the Constitution. Chairperson Demetriou stated that she was vacating her office on February 2. who were originally extended ad interim appointments only on March 22.[45] Concededly. To their credit. Commissioner Desamito also vacated his office on February 2. There was a great probability that disruptions in the conduct of the May 2001 elections could occur because of the three vacancies in the COMELEC. Thus. This Court cannot inquire into the propriety of the choice made by the President in the exercise of her constitutional power. Under the second paragraph of Section 16. during and after the elections. was certainly essential in safeguarding and strengthening our democracy. while Congress is in session.[46] the remaining one division would have been swamped with election cases. the President may nominate the prospective appointee. In a Manifestation[43] dated December 28. the President can choose either of two modes in appointing officials who are subject to confirmation by the Commission on Appointments. In 2001. . Considering that the Constitution requires that “all x x x election cases shall be heard and decided in division”. the nominee cannot qualify and assume office. 2001. Congress normally goes on voluntary recess between February and June considering that many of the members of the House of Representatives and the Senate run for reelection. Second. 2001. and pending consent of the Commission on Appointments. the President may extend an ad interim appointment which allows the appointee to immediately qualify and assume office. The successful conduct of the May 2001 national elections. Whether the President chooses to nominate the prospective appointee or extend an ad interim appointment is a matter within the prerogative of the President because the Constitution grants her that power. the mere absence of one of the four remaining members would have prevented a quorum. 2001. since under the Constitution motions for reconsideration “shall be decided by the Commission en banc”. 2001 elections.and one-half months away. which has not been shown in the instant case. Commissioner Desamito chose to file a petition for intervention[44] in the Gaminde case but this Court denied the intervention. the exercise by the President in the instant case of her constitutional power to make ad interim appointments prevented the occurrence of the very evil sought to be avoided by the second paragraph of Section 16. Article VII of the Constitution. 2001 and did not question any more before this Court the applicability of the Gaminde ruling to their own situation. as she believed any delay in choosing her successor might create a “constitutional crisis” in view of the proximity of the May 2001 national elections. absent grave abuse of discretion amounting to lack or excess of jurisdiction on her part. to be confirmed by the Commission on Appointments before the May 14. a less than ideal situation considering that the Commissioners are expected to travel around the country before. Borra and Tuason were not extended ad interim appointments to fill up the three vacancies in the COMELEC. 2000 filed with this Court in the Gaminde case. Moreover. This power to make ad interim appointments is lodged in the President to be exercised by her in her sound judgment. 2001. If Benipayo. there was no more time for Benipayo. during the recess of Congress.

[52] The COMELEC enjoys fiscal autonomy. The special constitutional safeguards that insure the independence of the COMELEC remain in place. Of those first appointed. Borra and Tuason if their ad interim appointments are deemed permanent in character. Third Issue: The Constitutionality of Renewals of Appointments Petitioner also agues that assuming the first ad interim appointments and the first assumption of office by Benipayo. In fine. his ad interim appointment can no longer be renewed because this will violate Section 1 (2). This situation. which is the situation of Benipayo. This situation. Article IX-C of the Constitution which prohibits reappointments. Borra and Tuason are constitutional. The vacancies in the COMELEC are precisely staggered to insure that the majority of its members hold confirmed appointments. Former President Corazon Aquino issued an ad interim appointment to Commissioner Alfredo E. The Constitution has wisely subjected the President’s appointing power to the checking power of the legislature. and not one President will appoint all the COMELEC members. Reyes-Claravall and Manolo F. Graduacion A. Sadain and Ralph C. Abueg. as a trade-off against the evil of granting the President absolute and sole power to appoint. does not compromise the independence of the COMELEC as a constitutional body. is only for a short period . who could now be removed from office only by impeachment. respectively. Desamito. the renewal of the their ad interim appointments and their subsequent assumption of office to the same positions violate the prohibition on reappointment under Section 1 (2). two Members for five years.[48] Former President Joseph Estrada also extended ad interim appointments to Commissioners Abdul Gani M.” (Emphasis supplied) Petitioner theorizes that once an ad interim appointee is by-passed by the Commission on Appointments. Borra and Tuason. Mehol K. comprising a majority. Luzviminda Tancangco. do not constitute temporary or acting appointments prohibited by Section 1 (2). three Members shall hold office for seven years. the Commission on Appointments had long confirmed four[51] of the incumbent COMELEC members. however. appoints its own officials and employees. as a trade-off against the evil of disruptions in vital government services. we rule that the ad interim appointments extended by the President to Benipayo. and promulgates its own rules on pleadings and practice. X x x.from the time of issuance of the ad interim appointment until the Commission on Appointments gives or withholds its consent.[47] Former President Fidel V. Article IX-C of the Constitution.[50] In the instant case. as COMELEC Chairman and Commissioners.[49] The President’s power to extend ad interim appointments may indeed briefly put the appointee at the mercy of both the appointing and confirming powers. which provides as follows: “The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Ramos extended ad interim appointments to Commissioners Julio F. however. Guiani. The Constitution itself sanctions this situation. Petitioner asserts that this is particularly true to permanent appointees who have assumed office. Japal M. without reappointment.The issuance by Presidents of ad interim appointments to the COMELEC is a long-standing practice. Marohombsar. Gorospe. the salaries of COMELEC members cannot be decreased during their tenure. Moreover. and the last members for three years. Lantion. . This is also part of the check-andbalance under the separation of powers. Article IX-C of the Constitution.

also. In this instance. the fact is that the President may reappoint them. an ad interim appointment ceases to be effective upon disapproval by the Commission. Justice Roberto Concepcion. a by-passed appointment can be considered again if the President renews the appointment. the disapproval is final and binding on the appointee as well as on the appointing power. An ad interim appointment that is by-passed because of lack of time or failure of the Commission on Appointments to organize is another matter. but because of a final decision by the Commission on Appointments to withhold its consent to the appointment. for.” (Emphasis supplied) Hence. simply because the President may then issue new appointments . The disapproval is a final decision of the Commission on Appointments in the exercise of its checking power on the appointing authority of the President. Nominations or appointments submitted by the President of the Philippines which are not finally acted upon at the close of the session of Congress shall be returned to the President and. Since the Constitution does not provide for any appeal from such decision. upon “the next adjournment of the Congress”.” (Emphasis supplied) Guevara was decided under the 1935 Constitution from where the second paragraph of Section 16. lucidly explained in his concurring opinion in Guevara vs. which provides as follows: “Section 17. Jr. It ceases. This is recognized in Section 17 of the Rules of the Commission on Appointments. never by omission. Absent such decision. because the incumbent can not continue holding office over the positive objection of the Commission. Inocentes[53] why by-passed ad interim appointees could be extended new appointments. There is no final decision by the Commission on Appointments to give or withhold its consent to the appointment as required by the Constitution. the President is free to renew the ad interim appointment of a by-passed appointee. The established practice under the present Constitution .There is no dispute that an ad interim appointee disapproved by the Commission on Appointments can no longer be extended a new appointment. the President is free to make ad interim appointments or reappointments. If the adjournment of Congress were an implied disapproval of ad interim appointments made prior thereto. thus: “In short. unless new nominations or appointments are made. A by-passed appointment is one that has not been finally acted upon on the merits by the Commission on Appointments at the close of the session of Congress. Unacted Nominations or Appointments Returned to the President.not because of implied disapproval of the Commission deduced from its inaction during the session of Congress. the President can no longer renew the appointment not because of the constitutional prohibition on reappointment. The disapproval is a decision on the merits. then the President could no longer appoint those so by-passed by the Commission. thus clearly indicating that the reason for said termination of the ad interim appointments is not the disapproval thereof allegedly inferred from said omission of the Commission. under the Constitution. shall not again be considered by the Commission. but the circumstance that upon said adjournment of the Congress. Article VII of the present Constitution on ad interim appointments was lifted verbatim. But. under the Rules of the Commission on Appointments. the Commission may affect adversely the interim appointments only by action. It is well settled in this jurisdiction that the President can renew the ad interim appointments of bypassed appointees.[54] The jurisprudence under the 1935 Constitution governing ad interim appointments by the President is doubtless applicable to the present Constitution. being a refusal by the Commission on Appointments to give its consent after deliberating on the qualifications of the appointee.

to a vacancy arising from retirement because a reappointment will result in the appointee also serving more than seven years. FOZ. Section 1 (2). But in cases where the appointee serves only for less than seven years. Article IX-C of the Constitution provides that “[t]he Chairman and the Commissioners shall be appointed x x x for a term of seven years without reappointment.is that the President can renew the appointments of by-passed ad interim appointees. then it is possible that an interpretation could be made later on their case. whether as a member or as a chairman. he would be entitled to reappointment. But there is the argument made in the concurring opinion of Justice Angelo Bautista in the case of Visarra vs. Unless we put the qualifying words “without reappointment” in the case of those appointed. and the appointee completes the unexpired term. Miraflor. to the effect that the prohibition on reappointment applies only when the term or tenure is for seven years. whether as a member or chair. The first situation is where an ad interim appointee to the COMELEC. Article IX-C of the Constitution. This is a continuation of the well-recognized practice under the 1935 Constitution. Even if it will not result in his serving more than seven years. Article IX-C of the Constitution. a reappointment of such person to serve an unexpired term is also prohibited because his situation will be similar to those appointed under the second sentence of Section 1 (2). Borra or Tuason. This provision refers to the first appointees under the Constitution whose terms of office are less than seven years. after confirmation by the Commission on Appointments. and a vacancy arises from death or resignation.” (Emphasis supplied) There are four situations where this provision will apply. a truncated term of five or three years. Such person cannot be reappointed. Not one of these four situations applies to the case of Benipayo. interrupted only by the 1973 Constitution which did not provide for a Commission on Appointments but vested sole appointing power in the President. they can still be reappointed to serve for a total of seven years. or even for an unexpired term of any length of time – can no longer be reappointed to the COMELEC. The prohibition on reappointment in Section 1 (2). Article VII of the Constitution. Such person cannot be reappointed. and not because a reappointment is prohibited under Section 1 (2). The third situation is where the appointee is confirmed to serve the unexpired term of someone who died or resigned. The framers of the Constitution made it quite clear that any person who has served any term of office as COMELEC member – whether for a full term of seven years. serves his full seven-year term. Such person cannot be reappointed to the COMELEC. because he will then be actually serving more than seven years. The fourth situation is where the appointee has previously served a term of less than seven years. after confirmation. Article IX-C of the Constitution applies neither to disapproved nor by-passed ad interim appointments. and such new appointment will not result in the appointee serving beyond the fixed term of seven years. serves a part of his term and then resigns before his seven-year term of office ends. A by-passed ad interim appointment can be revived by a new ad interim appointment because there is no final disapproval under Section 16. . The second situation is where the appointee. to a vacancy arising from retirement because a reappointment will result in the appointee also serving more than seven years. A disapproved ad interim appointment cannot be revived by another ad interim appointment because the disapproval is final under Section 16. whether as a member or as a chair. Commissioner Foz succinctly explained this intent in this manner: “MR. but are barred from ever being reappointed under any situation. Article VII of the Constitution.

in his concurring opinion. The second phrase prohibits reappointment of any person previously appointed for a term of five or three years pursuant to the first set of appointees under the Constitution. the Commission on Appointments usually fails to act. To hold otherwise would mean that the President by his unilateral action could start and complete the running of a term of office in the COMELEC without the consent of the Commission on Appointments. To hold otherwise will lead to absurdities and negate the President’s power to make ad interim appointments. This interpretation renders inutile the confirming power of the Commission on Appointments. for lack of time. The prohibition on reappointment is common to the three constitutional commissions. As reported in the Journal of the Constitutional Commission. This will nullify the constitutional power of the President to make ad interim appointments. quoted Nacionalista vs. it does not matter if the person previously appointed completes his term of office for the intention is to prohibit any reappointment of any kind. This Court cannot subscribe to a proposition that will wreak havoc on vital government services. However. to wit: “Mr. three or six years.” This was the interpretation despite the express provision in the 1935 Constitution that a COMELEC member “shall hold office for a term of nine years and may not be reappointed. we are foreclosing that possibility by making it clear that even in the case of those first appointed under the Constitution.Precisely.[56] Justice Angelo Bautista. The period from the time the ad interim appointment is made to the time it lapses is neither a fixed term nor an unexpired term. the phrase “without reappointment” appears twice in Section 1 (2). In either case. Article IX-C of the present Constitution. and which are: 1) fiscal autonomy which . If such ad interim appointments can no longer be renewed. There must be a confirmation by the Commission on Appointments of the previous appointment before the prohibition on reappointment can apply. Foz. Foz stated that the Committee had introduced basic changes in the common provision affecting the three Constitutional Commissions. The second is to insure that the members of the three constitutional commissions do not serve beyond the fixed term of seven years. Commissioner Vicente B.” To foreclose this interpretation. no reappointment can be made. the President will certainly hesitate to make ad interim appointments because most of her appointees will effectively be disapproved by mere inaction of the Commission on Appointments. outlined the four important features of the proposed articles. provided his term will not exceed nine years in all. an ad interim appointment that has lapsed by inaction of the Commission on Appointments does not constitute a term of office. Miraflor. on the ad interim appointments first issued to appointees. In the great majority of cases. The first phrase prohibits reappointment of any person previously appointed for a term of seven years. say. a power intended to avoid disruptions in vital government services. De Vera[57] that a “[r]eappointment is not prohibited when a Commissioner has held office only for.”[55] (Emphasis supplied) In Visarra vs. who sponsored[58]the proposed articles on the three constitutional commissions. whether or not such person completes his term of office. The first is to prevent a second appointment for those who have been previously appointed and confirmed even if they served for less than seven years. The phrase “without reappointment” applies only to one who has been appointed by the President and confirmed by the Commission on Appointments. The framers of the present Constitution prohibited reappointments for two reasons.

If the (Commissioner) will read the whole Article. Not contented with these ironclad twin prohibitions. the prohibition on reappointment is intended to insure that there will be no reappointment of any kind. Second. as discussed earlier. The following exchange in the deliberations of the Constitutional Commission is instructive: “MR. May I call the sponsor’s attention. So. The purpose of the last sentence is to make sure that this does not happen by including in the appointment both temporary and acting capacities. therefore as a whole there is no way that somebody can serve for more than seven years. Madam President. The evils sought to be avoided by the twin prohibitions are very specific . First. MONSOD. he occupied that position for about 12 years in violation of the Constitution? MR. if we follow that appointment to (its) logical conclusion. . the framers decided to strengthen further the prohibition on serving beyond the fixed seven-year term. the framers of the Constitution tightened even further the screws on those who might wish to extend their terms of office. 3) prohibition to decrease salaries of the members of the Commissions during their term of office. the framers of the Constitution decided to require confirmation by the Commission on Appointments of all appointments to the constitutional commissions."[61] (Emphasis supplied) Plainly. the prohibition on temporary or acting appointments is intended to prevent any circumvention of the prohibition on reappointment that may result in an appointee’s total term of office exceeding seven years. she will notice that there is no reappointment of any kind and. On the other hand. in the light of a former chair of the Commission on Audit remaining in office for 12 years despite his fixed term of seven years.reappointment of any kind and exceeding one’s term in office beyond the maximum period of seven years. was appointed as Chairman with a tenure of another 7 years. and 4) appointments of members would not require confirmation. first of all. to Section 2 (2) on the Civil Service Commission wherein it is stated: “In no case shall any Member be appointed in a temporary or acting capacity. FOZ: It is only one of the considerations. Am I correct in concluding that the reason the Committee introduced this particular provision is to avoid an incident similar to the case of the Honorable Francisco Tantuico who was appointed in an acting capacity as Chairman of the Commission on Audit for about 5 years from 1975 until 1980.” I detect in the Committee’s proposed resolutions a constitutional hangover.”[59] (Emphasis supplied) There were two important amendments subsequently made by the Constitutional Commission to these four features. SUAREZ: These are only clarificatory questions. from the past administration. if I may use the term.provides (that) appropriations shall be automatically and regularly released to the Commission in the same manner (as) provided for the Judiciary.”[60] (Emphasis supplied) Commissioner Christian Monsod further clarified the prohibition on reappointment in this manner: "MR. 2) fixed term of office without reappointment on a staggered basis to ensure continuity of functions and to minimize the opportunity of the President to appoint all the members during his incumbency. Another is really to make sure that any member who is appointed to any of the commissions does not serve beyond 7 years. Thus. the word “designated” was inserted to plug any loophole that might be exploited by violators of the Constitution. and then in 1980.

The sentence reads: “In no case shall any Member be appointed in a temporary or acting capacity.as shown in the following discussion in the Constitutional Commission: “MR. in order to erase that distinction between appointment and designation.”[62] The ad interim appointments and subsequent renewals of appointments of Benipayo. Presiding Officer. So. petitioner maintains that a reassignment without her consent amounts to removal from office without due process and therefore illegal. we should specifically place the word so that there will be no more ambiguity. Consequently. Petitioner further argues that only the COMELEC. I propose to insert the words OR DESIGNATED so that the whole sentence will read: “In no case shall any Member be appointed OR DESIGNATED in a temporary or acting capacity. FOZ: The amendment is accepted. acting as a collegial body. Borra and Tuason do not violate the prohibition on reappointments because there were no previous appointments that were confirmed by the Commission on Appointments. DE LOS REYES: Thank you. The continuing renewal of the ad interim appointment of these three respondents. Fourth Issue: Respondent Benipayo’s Authority to Reassign Petitioner Petitioner claims that Benipayo has no authority to remove her as Director IV of the EID and reassign her to the Law Department. Moreover. that Benipayo is the de jure COMELEC . the amendment is approved. MR. THE PRESIDING OFFICER (Mr. FOZ: But it changes the meaning of this sentence. A reappointment presupposes a previous confirmed appointment. The same ad interim appointments and renewals of appointments will also not breach the seven-year term limit because all the appointments and renewals of appointments of Benipayo. DE LOS REYES: On line 32. Mr. Trenas): Is there any objection? (Silence) The Chair hears none.” MR. however. Petitioner’s posturing will hold water if Benipayo does not possess any color of title to the office of Chairman of the COMELEC. I think his term exceeded the constitutional limit but the Minister of Justice opined that it did not because he was only designated during the time that he acted as Commissioner on Audit. Article IX-C of the Constitution. DE LOS REYES: Mr.[63] Any delay in their confirmation will not extend the expiry date of their terms of office. The Gentleman will recall that in the case of Commissioner on Audit Tantuico. can authorize such reassignment. Borra and Tuason are for a fixed term expiring on February 2.” THE PRESIDING OFFICER (Mr. there is no danger whatsoever that the renewal of the ad interim appointments of these three respondents will result in any of the evils intended to be exorcised by the twin prohibitions in the Constitution. Trenas): What does the Committee say? MR. We have ruled. between the words “appointed” and “in”. “In no case shall any Member be appointed OR DESIGNATED in a temporary or acting capacity. Presiding Officer. 2008. for so long as their terms of office expire on February 2. does not violate the prohibition on reappointments in Section 1 (2). the reason for this amendment is that some lawyers make a distinction between an appointment and a designation.” MR. 2008.

Chairman as Executive Officer. Subtitle C.’” Having been appointed merely in a temporary or acting capacity. indisputably show that she held her Director IV position in the EID only in an acting or temporary capacity. the vigorous argument of petitioner that a temporary or acting appointment can be withdrawn or revoked at the pleasure of the appointing power happens to apply squarely to her situation. Under Section 7 (4). And being so. At best.” (Emphasis supplied) The Chairman. The appointment extended to him cannot be regarded as permanent even if it may be so designated x x x. February 15. and she can claim no security of tenure in respect of that position. petitioner does not enjoy security of tenure as Director IV. including the appropriate eligibility prescribed. shall: xxx (4) Make temporary assignments. The Chairman. rotate and transfer personnel in accordance with the provisions of the Civil Service Law.[64] Petitioner is not a Career Executive Service (CES) officer.[65] Obviously.’ Achacoso did not. who shall be the Chief Executive Officer of the Commission. it could be withdrawn at will by the appointing authority and ‘at a moment’s notice’. may be appointed to it merely in an acting capacity in the absence of appropriate eligibles. Powers and Duties. Josefina G. and consequently he has full authority to exercise all the powers of that office for so long as his ad interim appointment remains effective. Book V of the Revised Administrative Code. is expressly empowered on his own authority to transfer or reassign COMELEC personnel in accordance with the Civil Service Law. and neither does she hold Career Executive Service Eligibility. the Chairman of the COMELEC is vested with the following power: “Section 7. her appointment to that position cannot be considered permanent. as the Chief Executive of the COMELEC. the Chairman is not required by law to secure the approval of the COMELEC en banc. petitioner has no legal basis in claiming that her reassignment was contrary to the Civil Service Law. and not possessed of the necessary qualifications to hold the position of Director IV. . The mere fact that a position belongs to the Career Service does not automatically confer security of tenure on its occupant even if he does not possess the required qualifications. Macaraig: ‘It is settled that a permanent appointment can be issued only ‘to a person who meets all the requirements for the position to which he is being appointed. 2000 and February 15.[66] this Court held that: “As respondent does not have the rank appropriate for the position of Chief Public Attorney. his appointment could be regarded only as temporary. 1999. In Secretary of Justice Serafin Cuevas vs.Chairman. Petitioner’s appointment papers dated February 2. Such right will have to depend on the nature of his appointment. As held in Achacoso v. “Y” and “Z” to her Petition. Bacal. 2001. therefore. attached as Annexes “X“. Chapter 2. or as an exception to the rule. which are necessary qualifications for holding the position of Director IV as prescribed in the Qualifications Standards (Revised 1987) issued by the Civil Service Commission. which in turn depends on his eligibility or lack of it. conformably to established jurisprudence x x x. A person who does not have the requisite qualifications for the position cannot be appointed to it in the first place. Atty. This time. In the exercise of this power.

Any public official who makes or causes any transfer or detail whatever of any officer or employee in the civil service including public school teachers. when necessary in the effective performance of its mandated functions during the prohibited period.[68] exempting the COMELEC from Section 261 (h) of the Omnibus Election Code. 261. 2000. the Commission on Elections by virtue of the powers conferred upon it by the Constitution. petitioner insists that the COMELEC en banc must concur to every transfer or reassignment of COMELEC personnel during the election period.” Petitioner claims that Benipayo failed to secure the approval of the COMELEC en banc to effect transfers or reassignments of COMELEC personnel during the election period. of the Omnibus Election Code provides as follows: xxx Sec. peaceful and credible elections. to appoint. hire new employees or fill new positions and transfer or reassign its personnel. 56 and Sec. the COMELEC did in fact issue COMELEC Resolution No. transfer or reassign personnel of the Commission on Elections during the prohibited period in order that it can carry out its constitutional duty to conduct free. The resolution states in part: “WHEREAS. Sec. orderly. The following shall be guilty of an election offense: xxx (h) Transfer of officers and employees in the civil service – Any public official who makes or causes any transfer or detail whatever of any officer or employee in the civil service including public school teachers. Contrary to petitioner’s allegation. within the election period except upon approval of the Commission. within the election period except upon prior approval of the Commission. The following shall be guilty of an election offense: xxx (h) Transfer of officers and employees in the civil service . as a prohibited act under Section 261 (h) of the Omnibus Election Code. has RESOLVED. Prohibited Acts. WHEREAS. provided that the changes in the assignment of its . 3300 dated November 6. Prohibited Acts. the aforequoted provisions are applicable to the national and local elections on May 14. THEREFORE. 2001. there is an urgent need to appoint. 261.Still. honest. paragraphs (g) and (h). WHEREAS. carried out during the election period. petitioner assails her reassignment.[67] Moreover. as it is hereby RESOLVED. which provides as follows: “Section 261. the Omnibus Election Code and other election laws. “NOW. as an exception to the foregoing prohibitions.

Borra. The COMELEC Chairman will logically exercise the authority to transfer or reassign COMELEC personnel pursuant to COMELEC Resolution No. making the resolution utterly useless. The COMELEC en banc. EN BANC [G. an approval to effect transfers and reassignments of personnel. Benipayo’s order reassigning petitioner from the EID to the Law Department does not violate Section 261 (h) of the Omnibus Election Code. 2001] . De Guzman. For the same reason. Costs against petitioner. refers only to COMELEC field personnel and not to head office personnel like the petitioner. 3300 to require such concurrence will render the resolution meaningless since the COMELEC en banc will have to approve every personnel transfer or reassignment. approved the transfer or reassignment of COMELEC personnel during the election period. Interpreting Resolution No. Officer-in-Charge of the Finance Services Department of the Commission on Elections. an act the COMELEC en banc cannot legally do. COMELEC Resolution No. The person holding that office.R. 131136.” (Emphasis supplied) The proviso in COMELEC Resolution No. requiring due notice and hearing before any transfer or reassignment can be made within thirty days prior to election day. WHEREFORE. without need of securing a second approval from the COMELEC en banc to actually implement such transfer or reassignment. 3300 does not require that every transfer or reassignment of COMELEC personnel should carry the concurrence of the COMELEC as a collegial body. Tuason and Cinco.field personnel within the thirty-day period before election day shall be effected after due notice and hearing. No. [69] the COMELEC Chairman is the sole officer specifically vested with the power to transfer or reassign COMELEC personnel. is Benipayo. Resolution No. The COMELEC Chairman is the official expressly authorized by law to transfer or reassign COMELEC personnel. February 28. The COMELEC en banc cannot arrogate unto itself this power because that will mean amending the Revised Administrative Code. Thus. SO ORDERED. in a de jure capacity. in COMELEC Resolution No. Benipayo’s order designating Cinco Officer-in-Charge of the EID is legally unassailable. the petition is dismissed for lack of merit. Fifth Issue: Legality of Disbursements to Respondents Based on the foregoing discussion. respondent Gideon C. 3300 should be interpreted for what it is. did not act in excess of jurisdiction in paying the salaries and other emoluments of Benipayo. 3300. 3300. Under the Revised Administrative Code. 3300.

seeking the recall of the appointments of fourteen (14) municipal employees. petitioner Conrado L. DIVINO DE JESUS. ADELFO GLODOVIZA and FLORINO RAMOS. 1995 Felicidad Orindag Accounting Clerk II June 27. 1995 Elsa Marino Mun. J. 1995 Daisy Porta Clerk IV June 27. namely: NAME POSITION DATE OF APPOINTMENT Eladio Martinez Registration Officer I June 1. 1995 Florencio Ramos Utility Foreman June 27. petitioner. ARISTEO CATALLA. 1995 Jane Macatangay Day Care Worker I June 27. JANE MACATANGAY. DECISION YNARES-SANTIAGO. GRACIELA GLORY. respondents. done in violation . Abeja. THE COURT OF APPEALS (NINTH DIVISION. MA.CONRADO L.: Upon his assumption to the position of Mayor of Pagbilao. Quezon. de Rama wrote a letter dated July 13. Petra Muffet Lucce Accounting Clerk III June 27. FLORDELIZA ORIASEL. ELSA MARINO. Agriculturist June 19. 1995[1] Petitioner de Rama justified his recall request on the allegation that the appointments of the said employees were “midnight” appointments of the former mayor. 1995 Aristeo Catalla Gen. BERNARDITA MENDOZA. Services Officer June 19. DE RAMA. PETRA MUFFET LUCE. 1995 Flordeliza Oriazel Clerk I June 27. Evelyn S. 1995 Morell Ayala Accounting Clerk III June 16. vs. DAISY PORTA. 1995 Gracella Glory Bookkeeper II June 27. 1995 Bernardita Mendoza Agricultural Technologist June 27. 1995 Ma. Ma. 1995 Adolfo Glodoviza Utility Worker II June 27. MORELL AYALA. THE CIVIL SERVICE COMMISSION). FELECIDAD ORINDAY. 1995 to the Civil Service Commission (or CSC). 1995 Divino de Jesus Bookbinder III June 1. ELADIO MARTINEZ.

which was issued on June 30. He also posited that the CSC erred in finding the appointments valid despite the existence of circumstances showing that the same were fraudulently issued and processed. Citing Rule V. filed with the CSC a claim for payment of their salaries.” the CSC Legal and Quasi-Judicial Division ruled that the said employees cannot be deprived of their salaries and benefits by the unilateral act of the newly-assumed mayor. and (2) to uphold the validity of said appointments. and Flordeliza Oriazel. and declared that the appointments of the said employees were issued in accordance with pertinent laws. the CSC opined. for lack of merit. Based on the documents submitted by Marino. as well as the Order of the CSC Legal and Quasi-Judicial Division. even assuming that there was failure to present evidence that would prove that these appointments contravened existing laws or rules. averring that the CSC was without jurisdiction: (1) to refuse to revoke the subject appointments.”[4] The CSC upheld the validity of the appointments on the ground that they had already been approved by the Head of the CSC Field Office in Lucena City. Two months immediately before the next presidential elections and up to the end of his term. Sections 9 and 10 of the Omnibus Rules. wherein the appointments of the said fourteen (14) employees were recalled. Section 10 of the Omnibus Rules[3] which provides.of Article VII. he shall be entitled to receive his salary at once without awaiting the approval of his appointment by the Commission. Morell Ayala. Section 15 of the 1987 Constitution. the same were effective immediately. that “if the appointee has assumed the duties of the position. (Underscoring supplied) While the matter was pending before the CSC. Thus. which provides: Section 15. they are therefore entitled to receive the salaries and benefits appurtenant to their positions. the CSC denied petitioner’s motion for reconsideration. namely: Elsa Marino. On November 21. Petitioner moved for the reconsideration of the CSC’s Resolution. Ayala and Oriazel. 95-01. except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. and cannot be withdrawn or revoked by the appointing authority until disapproved by the CSC. in part. Director II of the CSC Field Office based in Quezon. The CSC also cited Rule V. and for petitioner’s failure to present evidence that would warrant the revocation or recall of the said appointments. three of the above-named employees. the CSC denied petitioner’s request for the recall of the appointments of the fourteen employees. 1996. alleging that although their appointments were declared permanent by Conrado Gulim. 1996. On April 30. the Legal and Quasi-Judicial Division of the CSC issued an Order[2] finding that since the claimants-employees had assumed their respective positions and performed their duties pursuant to their appointments. as long as the appointee meets the qualification standards for the position. a President or Acting President shall not make appointments. “the appointing authority can validly issue appointments until his term has expired. The CSC reiterated its ruling that: . Thus. The CSC also dismissed petitioner’s allegation that these were “midnight” appointments. pointing out that the Constitutional provision relied upon by petitioner prohibits only those appointments made by an outgoing President and cannot be made to apply to local elective officials. petitioner de Rama withheld the payment of their salaries and benefits pursuant to Office Order No. 1995.

Civil Service Field Office. but also by the Constitution. and the personnel officer of the local . Ramos. the Commission has no other recourse but to uphold their validity. 7041 does not provide that every appointment to the local government service must be made within four (4) months from publication of the vacancies. except for cause. arguing that the CSC arrived at the erroneous conclusion after it ignored his “supplement to the consolidated appeal and motion for reconsideration” wherein he laid out evidence showing that the subject appointments were obtained through fraud. and with previous notice and hearing. The Court of Appeals further held that the fact that the appointments of Marino. and in the formulation of such policies as would contribute to employee welfare. not merely equitable right (to the position). city or municipality a personnel selection board to assist the local chief executive in the judicious and objective selection of personnel for employment as well as for promotion. Ayala. or by removal. to wit: Section 80. (c) The personnel selection board shall be headed by the local sanggunian concerned. 1997 which held that there was no abuse of the power of appointment on the part of the outgoing mayor. As a matter of fact. Mendoza and Glory were made more than four (4) months after the publication of the vacancies to which they were appointed is of no moment. Civil Service Commission[5] wherein this Court held that: It is well-settled that once an appointment is issued and the moment the appointee assumes a position in the civil service under a completed appointment. the Court of Appeals ruled that Republic Act No. which is protected not only by statute. said appointments were even approved by the Head. the Court of Appeals issued a Resolution[6] dated May 16. It cited Section 80 of said Act. Public Notice of Vacancy: Personnel Selection Board. Setting aside petitioner’s suppositions. xxx xxx xxx Mayor de Rama failed to present evidence that subject appointments should be revoked or recalled because of any of the abovementioned grounds enumerated. there shall be posted notices of the vacancy in at least three (3) conspicuous public places in the local government unit concerned for a period of not less than fifteen (15) days. In the absence of a clear showing that these appointments were issued in violation of any of these grounds. (Underscoring supplied) The CSC also cited the Supreme Court ruling in the case of Aquino v. Lucena City when submitted for attestation. A representative of the Civil Service Commission. if any. (b) There shall be established in every province. (a) Whenever a local chief executive decides to fill a vacant career position. he acquires a legal. and cannot be taken away from him either by revocation of the appointment. petitioner filed a petition for review before the Court of Appeals. nor is there evidence presented to show that subject appointments were issued in contravention of law or rules. After reviewing the facts and issues raised by petitioner.In the absence of any showing that these alleged midnight appointments were defective in form and in substance. these appointments are deemed valid and in effect. (Emphasis supplied) Consequently.

Petitioner filed a motion for reconsideration arguing that the appellate court erred in upholding the CSC’s resolutions despite the following defects: I. IV. On the basis of all the foregoing findings. 1997. the instant petition for review on certiorari on the following assigned errors: I.government unit concerned shall be ex officio members of the board. neither did the CSC’s own Circular Order No. Merit and fitness requirements were not observed by the selection board and by the appointing authority as required by the Civil Service rules. Petitioner has valid grounds to recall the appointments of respondents.[8] In a Resolution dated October 20. II. No posting in three (3) conspicuous public places of notice of vacancy as required by the rules and the law. THE PUBLIC RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT THE PARTICULAR GROUNDS NAMELY: I. GRAVELY AND SERIOUSLY ERRED IN FINDING THAT THE CIVIL SERVICE COMMISSION WAS CORRECT IN NOT UPHOLDING THE PETITIONERS RECALL OF THE APPOINTMENTS OF PRIVATE RESPONDENTS IN THE FACE OF FRAUD AND VIOLATION OF RULES AND LAWS ON ISSUANCE OF APPOINTMENTS. Hence. Merit and fitness requirements were not observed by the selection board and by the appointing authority as required by the Civil Service rules. THE PUBLIC RESPONDENT COURT OF APPEALS. 27. require that vacant positions published in a government quarterly must be filled up before the advent of the succeeding quarter. No screening process and no criteria were adopted by the Personnel Selection Board in nominating the respondents. Series of 1991. III. . II. the Court of Appeals denied the motion for reconsideration.[7] Likewise. IV. No screening process and no criteria were adopted by the Personnel Selection Board in nominating the respondents. Section 7. II. the Court of Appeals denied for lack of merit the petition for review. Petitioner has valid grounds to recall the appointments of respondents. No posting in three (3) conspicuous public places of notice of vacancy as required by the rules and the law. III.

In truth and in fact. holding that no new evidence had been presented to warrant a reversal of its earlier resolution. This argument is too specious to be given credence. that the said prohibition applies only to presidential appointments. he did not make any assertion that these appointments were violative of civil service rules and procedures. petitioner filed a supplement to the appeal and motion for reconsideration where. Petitioner assails the findings of both the CSC and the Court of Appeals for being contrary to law and not being supported by the evidence on record. the CSC ruled. he stressed. The appellate court. Thus. but only after the CSC had ruled that the recall was without legal basis. however. he alleged that the appointments were fraught with irregularities for failing to comply with CSC rules and regulations. “midnight appointments” which the outgoing mayor had no authority to make. to his personal belief. Section 15 of the Constitution. He argued that these form part of the records of the case and that the CSC erred in failing to consider the assertions he raised therein. an authority which. he harped on the CSC’s alleged lack of jurisdiction to refuse to recall the subject appointments. He emphasized that he alone has sole discretion to appoint and recall the appointment of municipal employees. Herein lies the inconsistency of petitioner’s arguments. much less present proof that would warrant the recall of said appointments. there is no law that prohibits local elective officials from making appointments during the last days of his or her tenure. the CSC overruled petitioner’s assertions. for the very first time. The records reveal that when the petitioner brought the matter of recalling the appointments of the fourteen (14) private respondents before the CSC. he then contradicted himself by arguing that the CSC had no jurisdiction to do so. Petitioner certainly did not raise the issue of fraud on the part of the outgoing mayor who made the appointments. albeit belatedly. the only reason he cited to justify his action was that these were “midnight appointments” that are forbidden under Article VII. Yet. Even in petitioner’s consolidated appeal and motion for reconsideration. board or tribunal may entertain. Indeed. Neither did he allege that the said appointments were tainted by irregularities or anomalies that breached laws and regulations governing appointments. Perhaps realizing the weakness of his arguments. agreed with the CSC when it ruled that the documents presented by petitioner in the supplemental pleading did not constitute “new evidence” that would convince the CSC to reverse its earlier ruling. However. while at the same time arguing that the grounds for recall such as violations of laws and regulations on issuance of appointments are not new issues because he had . the Court of Appeals. Nevertheless.ARE NEW ISSUES BECAUSE THE GROUNDS FOR RECALL OF THE APPOINTMENTS BY THE PETITIONER WERE PRECISELY THE VIOLATION OF LAWS AND REGULATIONS ON ISSUANCE OF APPOINTMENTS AS RAISED BEFORE THE RESPONDENT CIVIL SERVICE COMMISSION. in a petition for review before the Court of Appeals. the CSC cannot usurp. simply dismissed petitioner’s allegations and documents attached to the supplemental pleading for they did not constitute new evidence that a court. His solitary reason for recalling these appointments was that they were. petitioner questioned the CSC’s conclusion because it had ignored the allegations and documents he presented in the supplement to his earlier consolidated appeal and motion for reconsideration. He faults the Court of Appeals and the CSC for ignoring his supplemental pleading. After first invoking the authority of the CSC to approve or affirm his act. In fine. as did the CSC. nowhere in said pleading did he cite any other ground. and correctly so.

but which should not entirely substitute the latter. occurrences or events which took place since the time the pleading sought to be supplemented was filed. These are grounds that he could have stated in his order of recall. It is rather too late for petitioner to raise these issues for the first time on appeal. the CSC. (2) there was no proper posting of notice of vacancy. which provides: Sec.[9] The propriety and substance of supplemental pleadings are prescribed under Rule 10. Secondly. a supplemental pleading must state transactions. Failure of the petitioner to raise said grounds and to present supporting documents constitute a waiver thereof. Supplemental pleadings must be with reasonable notice. theories or arguments not brought out in the original proceedings cannot be considered on review or appeal where they are raised for the first time.[14] . These were old facts and issues which he failed to raise earlier.[13] In fine. Section 6 of the 1997 Rules of Civil Procedure. . They should have been raised at the very first opportunity. Thus. upon reasonable notice and upon such terms as are just. and (3) the merit and fitness requirements set by the civil service rules were not observed. these alleged irregularities were considered by the CSC and the Court of Appeals as new issues which were raised for the first time on appeal. The adverse party may plead thereto within ten (10) days from notice of the order admitting the supplemental pleading. but which he did not. the CSC was under no obligation to admit the supplemental pleading.[12] The grounds for the recall of the appointments that petitioner raised in his supplemental pleading to the consolidated appeal and motion for reconsideration are that: (1) the rules on screening of applicants based on adopted criteria were not followed. or even to consider the averments therein. Be that as it may.Upon motion of a party the court may. nor in the Court of Appeals. permit him to serve a supplemental pleading setting forth transactions. and much less in a petition for review before the Supreme Court. petitioner alleged fraud and irregularities that supposedly occurred contemporaneous to the execution of the appointments. It is well-settled that issues or questions of fact cannot be raised for the first time on appeal.[10] We have consistently held that matters.[11] To consider the alleged facts and arguments raised belatedly in the supplemental pleading to the appeal at this very late stage in the proceedings would amount to trampling on the basic principles of fair play. In the instant case.timely raised them before the CSC. They are not new events which petitioner could not have originally included as grounds for the recall of the appointments. and it is discretionary upon the court or tribunal to allow the same or not. as well as the Court of Appeals. but only by way of a supplemental pleading. Consequently. Accordingly. occurrences or events which have happened since the date of the pleading sought to be supplemented. the CSC and the Court of Appeals did not err in refusing to give credence to the supplemental pleading. justice and due process. Neither did he raise said grounds in his original appeal. There is no question that parties may file supplemental pleadings to supply deficiencies in aid of an original pleading. found that the allegations in his supplemental pleading did not constitute “new evidence” that can be the proper subject of a supplemental pleading. the raising of these factual issues for the first time in a pleading which is supplemental only to an appeal is barred by estoppel. 6. and the same arguments and evidence can no longer be entertained on appeal before the CSC. Supplemental Pleadings.

An appointment issued in accordance with pertinent laws and rules shall take effect immediately upon its issuance by the appointing authority. While he argues that the appointing power has the sole authority to revoke said appointments.[15] That is. of course.[18] Petitioner admits that his very first official act upon assuming the position of town mayor was to issue Office Order No. it was petitioner who acted in undue haste to remove the private respondents without regard for the simple requirements of due process of law. Moreover.Petitioner asks this Court to appreciate and consider these factual issues. Consequently. provided that there is previous notice and hearing. it is well-settled that the person assuming a position in the civil service under a completed appointment acquires a legal. The fourteen (14) employees were duly appointed following two meetings of the Personnel Selection Board held on May 31 and June 26. 1995. 10. unless the factual findings assailed by petitioner are devoid of support by the evidence on record or the impugned judgment is based on a misapprehension of facts. not of fact. not just an equitable. or by removal. In no case shall an appointment take effect earlier than he date of its issuance. it is the CSC that is authorized to recall an appointment initially approved. but by the Constitution as well. Section 9 of the Omnibus Implementing Regulations of the Revised Administrative Code specifically provides that “an appointment accepted by the appointee cannot be withdrawn or revoked by the appointing authority and shall remain in force and in effect until disapproved by the Commission. they had already assumed their appointive positions even before petitioner himself assumed his elected position as town mayor. he shall be entitled to receive his salary at once without awaiting the approval of his appointment by the Commission.[16] A thorough perusal of the records reveal that the CSC’s ruling is supported by the evidence and the law. Neither can he question the CSC’s jurisdiction to affirm or revoke the recall. there is no debate that he does not have blanket authority to do so. and if the appointee has assumed the duties of the position. Rule V. There was no previous notice. In doing so. “he acquires a legal right which cannot be taken away either by revocation of the appointment or by removal except for cause and with previous notice and hearing. Section 10 of the same rule provides: Sec. he overstepped the bounds of his authority. . but only when such appointment and approval are proven to be in disregard of applicable provisions of the civil service law and regulations. much less a hearing accorded to the latter. There is no showing that any of the private respondents were not qualified for the positions they were appointed to. which right cannot be taken away by either revocation of the appointment. right to the position. their appointments took effect immediately and cannot be unilaterally revoked or recalled by petitioner. their appointments were duly attested to by the Head of the CSC field office at Lucena City. By virtue thereof.[19] Moreover.”[17] Moreover. It must be recalled that the jurisdiction of the Supreme Court in a petition for review on certiorari under Rule 45 of the Revised Rules of Court is limited to reviewing only errors of law. This right is protected not only by statute. It has been held that upon the issuance of an appointment and the appointee’s assumption of the position in the civil service. The appointment shall remain effective until disapproved by the Commission. Clearly. unless there is valid cause to do so. 95-01 which recalled the appointments of the private respondents.” Thus.

R. No. respondent. the instant appeal cannot be given due course. applies only to the President or Acting President. or (d) Violation of other existing civil service law. June 26. 122197. 1995. the disallowance in question in the total amount of P52. Considering that the claim for the RATA differential in the amount of P8. that the constitutional prohibition on socalled “midnight appointments. the appointments of the private respondents may only be recalled on the above-cited grounds. Notwithstanding the initial approval of an appointment. the instant petition for review is DENIED and the Resolution of the Court of Appeals in CA-G. rules and regulations. And yet.” The CSC correctly ruled. If ever there were other procedural or legal requirements that were violated in implementing the appointments of the private respondents. COMMISSION ON AUDIT. vs. the only reason advanced by the petitioner to justify the recall was that these were “midnight appointments. DECISION MARTINEZ. DIMAANDAL. the same may be recalled on any of the following grounds: (a) Non-compliance with the procedures/criteria provided in the agency’s Merit Promotion Plan.400. 1998] ZOSIMO M.[1] the dispositive portion of which reads. 20. to wit: “Foregoing premises considered. in view of all the foregoing. however.: This petition for certiorari seeks the reversal of the decision of the Commission on Audit dated September 7. WHEREFORE. (c) Violation of the existing collective agreement between management and employees relative to promotion. SP No.R. J.00 is hereby affirmed.” specifically those made within two (2) months immediately prior to the next presidential elections.908. (b) Failure to pass through the agency’s Selection/Promotion Board. 42896 affirming CSC Resolutions Nos. petitioner. 962828 and 96-7527 is hereby AFFIRMED in toto. These cannot be raised for the first time on appeal. EN BANC [G. Accordingly.00 is . the same were not seasonably brought before the Civil Service Commission.Section 20 of Rule VI also provides: Sec. Accordingly.

petitioner filed a claim for the difference in salary and Representation and Transportation Allowance (RATA) of Assistant Provincial Treasurer and Supply Officer III for the whole year of 1993 in the total amount of P61. Dimaandal.00 of the claim. The disallowance was premised on the following reasons: “1. 1994. Dimaandal is hereby directed to refund the salary and RATA differential in the amount of P61. interposing the following reasons: “1.00.400. The provisions of Section 2077 of the Revised Administrative Code is not applicable in the instant case as the power to fill the position of Assistant Provincial Treasurer rests on the Secretary of Finance.00 which corresponds to the difference in the allowances attached to the designation and the position occupied by the appellant.devoid of any legal basis. denied the request for reconsideration. However. was designated Acting Assistant Provincial Treasurer for Administration by then Governor Vicente A. petitioner Zosimo M. That the budget containing an appropriation for the position of Assistant Provincial Treasurer for Administration was already approved by the Provincial Board. That Section 2077 of the Revised Administrative Code is applicable in the instant case as the same provides that the Governor General or the officer having the power to fill-up a temporary absence or disability in the provincial office has the power to order or authorize payment of compensation to any government officer or employee designated or appointed temporarily to fill the place. 1992. appellant Zosimo M. Dimaandal at the time of his designation as Acting Provincial Treasurer for Administration was no longer performing the duties and functions of Supply Officer III. 2. Pursuant to the designation. the same is also disallowed.308.308.908." The Provincial Auditor. however. the Provincial Auditor disallowed in audit P52.908. What was allowed was only the amount of P8. That Mr. Petitioner appealed to the respondent Commission on Audit which sustained the stand of the Provincial Auditor of Batangas as valid and proper. then holding the position of Supply Officer III. The designation is temporary in nature and does not amount to the issuance of an appointment as could entitle the designee to receive the salary of the position to which he is designated (Opinion of the Director.” On August 3.00 which was disallowed. Appellant was required to refund the amount of P52. Civil Service Commission dated January 25. 2. The respondent Commission was of the view that the petitioner was merely designated as an Assistant Provincial Treasurer for . Hence. Office for Legal Affairs. and 3. 1994). Governor Mayo wrote to the Provincial Auditor requesting reconsideration of the subject disallowance. Mayo of Batangas.00 he had received from the Provincial Government of Batangas.” [2] The undisputed facts: On November 23.

the respondent Commission. 1960. The Commission further opined that petitioner was likewise not entitled to receive the difference in RATA provided for under the Local Budget Circular issued by the Department of Budget and Management considering that the party designating him to such position is not the “duly competent authority. therefore.00. he is not entitled to receive an additional salary. We are not persuaded by petitioner’s insistence that he could still claim the salary and RATA differential because he actually performed the functions pertaining to the office of Acting Assistant Provincial Treasurer and. therefore. Menzon vs. the respondent Commission not only affirmed the disallowance of the amount of P52.00 but likewise disallowed the claim for the RATA differential in the amount of P8. The law applicable is Section 471(a) of RA 7160 otherwise known as the Local Government Code which mandates that: .400.. Petitioner contends that he may be considered as a de facto officer by reason of services rendered in favor of the Province of Batangas. the nature of petitioner’s designation and in the absence of authority of the Governor to authorize the payment of the additional salary and RATA without the appropriate resolution from the Sangguniang Panlalawigan does not make the ruling on de facto officers applicable in this case. petitioner was appointed as Assistant Provincial Treasurer for Administration by the Secretary of Finance only on July 8. what was extended to petitioner was not an appointment but a mere designation. Ortiz. 1994. al.[5] which laid down the rule that de facto officers are entitled to salary for services actually rendered. The issue here is whether or not an employee who is designated in an acting capacity is entitled to the difference in salary between his regular position and the higher position to which he is designated. this petition. through the Office of the Solicitor General. We find the petition to be without merit.[4] April 29.308. Thus.908. and impairment of obligation of contracts duly enshrined in the Constitution. Petitioner avers that the respondent Commission’s decision is “probably not in accordance with applicable decisions of the Supreme Court. and.”[3] He cites the cases of Cui. On the other hand. Petitioner was. May 20. maintains that the decisions cited by petitioner do not find application in petitioner’s case.” provided for under Section 471 of the Local Government Code.00. directed to refund the salary and RATA differential in the amount of P61. 1991. what was extended was an appointment to the vacant position of ViceGovernor. As such. et. et. Thus. Here. al.Administration in addition to his regular duties. entitled to the salary and benefits attached to it despite the fact that the Governor of Batangas had no authority to designate him to the said position. vs. Notably. Petilla. for being devoid of any legal basis. He then posits the view that to disallow his compensation and in the process allow the Province of Batangas to keep and enjoy the benefits derived from his services actually rendered would be tantamount to deprivation of property without due process of law. Hence. In the case of Menzon.

there being no appointment issued. the President of the Philippines or officer having the power to fill such position may. as provided under Section 2077 of the Revised Administrative Code which states that: "Section 2077. the appointing officer is authorized by law to order the payment of compensation to any government officer or employee designated or appointed to fill such vacant position. Re: Evora. Necessarily. in his discretion. confers no right on the part of petitioner to claim the difference in the salaries and allowances attached to the position occupied by him. upon a person already in the public service by virtue of an earlier appointment (Santiago vs. subject to civil service law. thus: “There is a great difference between an appointment and designation. The respondent Commission clearly pointed out the difference between an appointment and designation. COA. Moreover. designation merely connotes an imposition of additional duties. rules and regulations. designation does not entitle the officer designated to receive the salary of the position. While an appointment is the selection by the proper authority of an individual who is to exercise the powers and functions of a given office. order the payment of compensation. That power resides in the President of the Philippines or the Secretary of Finance.“Sec. 199 SCRA 125). what was extended to petitioner by Governor Mayo was merely a designation not an appointment. to any Government officer or employee designated or appointed temporarily to fill the place. Civil Service Commission. “Designation is simply the mere imposition of new or additional duties on the officer or employee to be performed by him in a special manner. . 471. For the legal basis of an employee’s right to claim the salary attached thereto is a duly issued and approved appointment to the position (Opinion dated January 25.(a) An assistant treasurer may be appointed by the Secretary of Finance from a list of at least three (3) ranking eligible recommendees of the governor or mayor. 1994 of the Office for Legal Affairs. or additional compensation. Carlos. As such. It does not entail payment of additional benefits or grant upon the person so designated the right to claim the salary attached to the position (COA Decision No. xxx xxx xxx “In case of the temporary absence or disability of a provincial officer or in case of a vacancy in a provincial office. the aforecited laws do not authorize the Provincial Governor to appoint nor even designate one temporarily in cases of temporary absence or disability or a vacancy in a provincial office. but the total compensation paid shall not exceed the salary authorized by law for the position filled. 1995). xxx xxx xxx In fact.” Undoubtedly. 95-087 dated February 2. Compensation for person appointed to temporary service. Assistant Treasurers. . usually by law. petitioner’s designation as Assistant Provincial Treasurer for Administration by Governor Mayo being defective.

the petitioner is a de facto officer entitled to compensation.. and is discharging its duties under color of authority. the right to the salary or an allowance due from said office never existed. 167. if the office is an appointive office. 143). even granting that the President. Considering that petitioner’s designation was without color of authority. by which is meant authority derived from an appointment. 2 Phil. in the absence of such right. Collector of Customs. 38 Phil.[9] Petitioner invokes in his favor the ruling in Menzon vs. particularly so if such construction. however irregular or informal. 38 Phil. has been uniform. The nature of petitioner’s designation and the absence of authority of the Governor to authorize the payment of the additional salary and RATA without the appropriate resolution from the Sangguniang Panlalawigan does not make him a de facto officer. the construction given by the agency or entity charged with the enforcement of a statute should be given great weight and respect (In re Allen. acting through the Secretary of Local Government. It is likewise defined as one who is in possession of an office. so that the incumbent be not a mere volunteer. 640). at the very least. Rafferty. he was designated. In Menzon. and has been observed and acted on for a long period of time (Molina vs. The appointment of Menzon had the color of validity. after which he took his oath of office before Senator Alberto . the petitioner was appointed by no less than the alter ego of the President. As revealed by the records. and consistent. The Secretary of Local Government. Stated differently. Jr. A de facto officer is defined as one who derives his appointment from one having colorable authority to appoint. there can be no violation of any constitutional right nor an impairment of the obligation of contracts clause under the Constitution. in petitioner’s case.A.”[6] This Court has time and again ruled that: “Although technically not binding and controlling on the courts. Philippine Sugar Central vs.”[7] We see no justifiable reason to sustain petitioner’s argument that non-payment of his salary differential and RATA would be a violation of his constitutional right against deprivation of property without due process of law and the non-impairment of obligation of contracts clause in the Constitution. 51 Phil.[10] that a de facto officer is entitled to receive the salary for services actually rendered. Madrigal vs. The right to the salary of an Assistant Provincial Treasurer is based on the assumption that the appointment or designation thereof was made in accordance with law. his reliance on the Menzon case is misplaced. Designation). There is no denying that the petitioner assumed the Office of the Vice-Governor under a color of a known appointment. 630. even though such election or appointment may be irregular. and whose appointment is valid on its face. This Court said: “And finally. as in the case at bar. Rafferty. 414. what was extended was an appointment to the vacant position of Vice-Governor.[8] Then a de facto officer is one who is in possession of an office in the open exercise of its functions under color of an election or an appointment. possesses no power to appoint the petitioner. Petilla. However.

Petitioner’s claim that the appointment retro-acts to his assumption of office is not confirmed by the express phraseology of the appointment itself.A. which states: “Kayo ay nahirang na ASSISTANT PROVINCIAL TREASURER FOR ADMINISTRATION na may katayuang PERMANENT sa OFFICE OF THE PROVINCIAL TREASURER OF BATANGAS sa pasahod na ONE HUNDRED TWENTY ONE THOUSAND SIX HUNDRED TWENTY (P121. in that duration until the appointment is finally acted upon favorably or unfavorably. CA380 SCRA 436CARPIO.” Likewise. the approval of the President of the Philippines is required. For such appointments to be complete. 1994. Accordingly. Ortiz. therefore. In Cui. the appointment has the color of validity. this Court held: “Petitioners’ appointments on December 1 and 12. the petition is hereby DISMISSED for lack of merit. which corresponds to the amount disallowed and ordered refunded by COA representing the salary and RATA in excess of what was due him in 1993. 1994. al. vs. Concededly. Ito ay magkakabisa sa petsa ng pagganap ng tungkulin subalit di aaga sa petsa ng pagpirma ng puno ng tanggapan o appointing authority. WHEREFORE. premises considered.00) P. et. the appointing mayor still in possession of his right to appoint.00. 1955 by the then mayor of the municipality were legal and in order. SO ORDERED. et.” [12] The subsequent appointment of petitioner to the position on July 8.” Finally. April 11. al. piso. PANDI V. the appointee may assume office and receive salary for services actually rendered. the appointees may be considered as ‘de facto’ officers and entitled to salaries for services actually rendered. 2002NATURE Petition for Review on Certiorari under Rule 45 . the appointment signed by Finance Undersecretary Juanita D.308. cannot justify petitioner’s retention of the excess amount of P61. Amatong is dated July 8. the doctrine in Cui. The law provides that pending approval of said appointment by the President.[11] does not apply in petitioner’s case.Romulo in the Office of Department of Local Government Regional Director Res Salvatierra.620.

September 15.November 6. Dr.Dr. Indisputably. Macacua (as DOH-ARMM Sec. Sani to the Regional office in Cotabato City.FACTS . the provincialhealth officer of Lanao del Sur was still a national government official paid entirely from national funds. When Saber was appointed by the provincial governor on September 15. Prior to the ARMM Local . Saber filed a petitioner for quo warranto with a prayer for preliminary injunction. 1993. 1994 andapproved by the Regional Governor on March 3. -Drs. Just see the case) NO.August 9. ISSUE WON the Provincial Governor can designate the OIC of the IPHO-APGH (WON the appointment of Saber isvalid) at that time HELD (NOTE: MAY MAHABANG HISTORY PART SA ORIGINAL CASE. 1993: After President Ramos issued E. 133 transferring the powers & functions of he DOHin the region to the Regional Government of ARMM. the designationof Saber as such Officer-in-Charge is void. Macacua. Sani filed a Motion for Intervention. on September 15. 07 designating Dr.O. Pandi ( then DOH-ARMM Assistant Regional Secretary ) . Sani (then the Provincial health officer of theIPHO-APGH) to the DOH-ARMM Regional Office. as well asthe execution of the Memo of agreement between the DOH-National Government and the ARMM RegionalGovernment. which was enacted by the Regional Assembly on January 25. 1994. Macacua also designated Dr. 1993: Dr. of Health of the DOH-ARMM issued aMemorandum designating Dr. the Provincial Governor has the power toappoint the provincial health officer under the LGC of 1991. as OIC of the IPHO-APGH in Lanao del Sur. Lanao del Sur. 1993. Provincial Governor Mutilan had nopower to designate Saber as Officer-in-Charge of IPHO-APGH.The provincial health officer of Lanao del Sur became a provincial government official only after theeffectivity of the ARMM Local Code. Pandi as OIC of the IPHO-APGH and thedetail of Dr. Sani challenged the Memorandum transferring him in a complaint filed with the RTC claiming thereinthat he was appointed as provincial health officer of the IPHO-APGH in a permanent capacity. -CA: designation of Dr. Consequently. TheSecretary of Health was also the official authorized by law to assign the provincial health officer to anyprovince within the region. Regional Director & Sec. Reasoning. 1993: Lanao del Sur Provincial Governor issued Office Order NO. Lanao del Sur.. Sani cannot claim to have permanentdesignation as provincial health officer because he was not appointed by the Provincial Governor. Lanao del Sur..Dr.Designate) issued a2nd Memorandum reiterating the designation of Dr.Dr. Dr. The Secretary of Health exercised supervision and control over the provincial health officer. The provincial health officer was still appointed by the national Secretary of Health to a region and not to aprovince.. Pandi & Macacua sought the dismissal of Dr. claiming that he islawfully designated OIC of IPHO-APGH.Saber as the OIC of the IPHO-APGH. The CA issued a TRO enjoining Pandi from furtherdischarging his functions as OIC of the IPHO-APGH. Saber as OIC of IPHO-APGH upheld. Dr. Saber’s petitioner on the ground that the issues thereinhad become moot & academic because of the enactment of the ARMM Local Government Code.

while valid isonly temporary in nature. WHEREFORE. Disposition. From then on the Provincial Governorbegan to exercise the administrative authority to designate an Officer-in-Charge in the provincial healthoffice pending the appointment of a permanent provincial health officer. projects. The ARMM Local Code vests in the Provincial Governor the power to "exercise general supervisionand control over all programs. 1993 of Dr. services. -As Regional Secretary of Health. Pandi as Officer-in-Chargeof the Integrated Provincial Health Office of Lanao del Sur.the latter did not exercise yet supervision and control over the provincial health offices of the ARMM.-Under the ARMM Local Code. After the effectivity of theARMM Local Code.Amer A. SOORDERED . 1993 of Dr. therefore. Lampa I. the provincial health officer became for the first an official of the provincialgovernment even though he is appointed by the Regional Governor and draws his salary from regionalfunds. The officialexercising supervision and control over an office has the administrative authority to designate. 1993. the petition is GRANTED and the assailed decision of the Court of Appealsdated April 15. 1993 to designate an Officer-in-Charge in the provincial health office of Lanaodel Sur pending the appointment of the permanent provincial health officer. since it wasissued after the issuance of EO 133 which expressly transferred “supervision and control over all functionsand activities of the Regional Department of Health to the Head of the Regional Department of Health. LGC did not amend the Organic Act of 1989 -as regards SANI: his first appointment was void. the official vested by law toexercise supervision and control over all provincial health offices in the ARMM. andsince it is within the authority of the ARMM Secretary of Health. 1993 designation is valid. On the other hand. the regional Director/ARMM Secretary of Health’s directive assigning Sani to Regional Office inCotabato City is void. 133. the designation on November 6. 32242 is SET ASIDE. and activities of the provincial government. had theauthority on November 6. The designation on September 15. and the Secretary of Health of the National Government still exercised the power to assign the provincial health officers in the ARMM. 1993 of Dr. LGC: misplaced. Macacua. The Regional Secretary. the power of supervision and control over the provincial health officerpassed from the Regional Secretary to the Provincial Governor." Upon theeffectivity of the ARMM Local Code. good until a new designation or a permanent appointment is made.Code but after the issuanceof Executive Order No. 1993 Memorandum reiterating Sani’s detail.However. Thus. -on reliance on Section 478.-as regards Pandi: August 9. The designation of Pandi as OIC. As regards the November 6. assumed the administrative powers and functions of the Secretary of Health of the National Government with respect to provincial health offices within the ARMM.Mamasao Sani to the DOH-ARMM Regional Office in Cotabato City. Saber as Officer-in-Charge of the Integrated Provincial Health Office of Lanao del Sur is declaredvoid. as of November 6. not a grant of powers to governors and mayors to appointlocal health officers but simply a directive that those empowered to appoint local health officers aremandated to do so. 133. in theinterest of public service. the Regional Secretary of Health lost the authority to make such a designation. byvirtue of Executive Order No. however. and the assignment on November 6. When he was detailed in Cotabato City. are declared valid. it is valid. the powers andfunctions of the DOH were not yet transferred to the Regional Government. 1993 designation by the ARMM Secretary of Health is VOID since at that time. an Officer-in-Charge if the office becomes vacant. The Provincial Governor had no power to appoint or even designate the Officer-in-Charge of the provincialhealth office. SP No. November 6. No costs. Macacua was. 1994 in CAG.R. the Regional Governor appointed the provincial health officer while theRegional Secretary of Health could assign the provincial health officer to any province within the ARMM.

UMPA. respectively. and Functions. as barangay treasurer and as barangay secretary.: Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court seeking a reversal of the decision. and Sirad Umpa were appointees of the former punong barangay of Barangay Tubod. Iligan City. Following the action taken by the Sangguniang Barangay. respectively. 1999] RAMON ALQUIZOLA.. to cease and desist from dismissing respondents on the ground that their dismissal had been effected without the corresponding approval of the Sangguniang Barangay. he submitted both appointments to the Sangguniang Barangay for approval. the purpose of which is the general welfare of the barangay and its inhabitants pursuant to Section 16 of this Code. won the post of Punong Barangay of Barangay Tubod.R. A motion for reconsideration was denied. respondents. After the elections. DECISION VITUG. relates to the proper application of the following provisions of the Local Government Code. Saturnino Mendoza. that has ordered petitioner Ramon Alquizola. CASERES.. purely a question of law. petitioner Alquizola terminated the services of respondents and appointed his copetitioners. DOROMAL and ADELO SECO. Sr. Petitioner Ramon Alquizola. In consonance with Section 394 and Section 395 of the Local Government Code. August 27. to cease and desist from dismissing respondents and replacing them with his co-petitioners. vs.. SATURNINO MENDOZA. viz: “Section 389. ZOSA III and SIRAD M. ARDIENTE. Chief Executive: Powers. Marissa Doromal and Adelo Seco. effective and economical governance. Respondents Gallardo Ocol. MARISSA C. Sr. Camilo Penaco. Iligan City. 132413. The Sanggunian rejected the appointments.THIRD DIVISION [G. the first two occupying the positions of barangay treasurer and barangay secretary. VICENTE C. J.. The Court finds no merit in the instant petition for certiorari. Duties. It held that Section 389(b)(5) limited the power of a barangay captain to remove appointive barangay officials by requiring an approval of such act by a majority of the Sangguniang Barangay. Rafael Ardiente. No. Ricardo Zosa III. The trial court found in favor of respondents and ordered petitioner Ramon Alquizola. PENACO. dated 19 November 1997. The issue involved. CAMILO P. petitioners. with the rest being barangay utility workers. mandamus and prohibition with the Regional Trial Court of Lanao Del Norte to enjoin petitioner from terminating the services of the former. RICARDO B. – x x x “(b) For efficient. the punong barangay shall: . SR. of the Regional Trial Court of Lanao Del Norte. Branch 04. Vicente Caseres. GALLARDO OCOL. Sr. respondents filed a complaint for quo warranto. in the 12th May 1997 barangay elections. RAFAEL R.

there is no other provision in the Local Government Code that treats of the power of the Punong Barangay to remove the barangay secretary. Barangay Secretary: Appointment. Powers and Duties. the power to remove is deemed implied in the power to appoint. the barangay secretary. Applying the rule that the power to appoint includes the power to remove. the barangay treasurer. neither an appointment nor a replacement can be effectual.(a) The barangay secretary shall be appointed by the punong barangay with the concurrence of the majority of all the sangguniang barangay members. to put in place of. or any other appointive barangay official from office. Barangay Treasurer: Appointment.“x x x x x x xxx “(5) Upon approval by a majority of all the members of the sangguniang barangay. and other appointive barangay officials. It is likely that the legislature did not intend this absurdity to flow from its enactment of the law.” “Section 395. appoint or replace the barangay treasurer. the barangay secretary.” The term “replace” would obviously embrace not only the appointment of the replacement but also the prior removal of. The appointment of the barangay secretary shall not be subject to attestation by the Civil Service Commission. or to fill the post of an incumbent. The duration of the term of office of these barangay officials have not been fixed by the Local Government Code. Qualifications. The appointment of the barangay treasurer shall not be subject to attestation by the Civil Service Commission. Where the tenure of the office is not fixed by law. in the case of the secretary and the treasurer. Aside from what may be implicit in Section 389. to give their approval to the replacements selected by the punong barangay who has unilaterally terminated the services of the incumbents. the prior holder must have first been removed or the office must have. to serve as a substitute for or successor of.” Verily.[1] In order to provide a replacement to an office. and other appointive barangay officials. . upon approval by a majority of all the members of the sangguniang barangay. to wit: “Section 394. This provision is reinforced. the official currently occupying the appointive position concerned. the power to appoint or replace the barangay treasurer. like here. the power of appointment is to be exercised conjointly by the punong barangay an a majority of all the members of the sangguniang barangay. Powers and Duties.(a) The barangay treasurer shall be appointed by the punong barangay with the concurrence of the majority of all the sangguniang barangay members. . The Code explicitly vests on the punong barangay.[2] Elsewise stated. been previously rendered vacant. the questioned dismissal from office of the barangay officials by the punong barangay without the concurrence of the majority of all the members of the Sangguniang Barangay cannot be legally justified. To rule otherwise could also create an absurd situation of the Sangguniang Barangay members refusing. Without such conjoint action. one that the Court finds no cogent reason to now depart from. by the provisions of Section 394 and Section 395 of the Local Government Code. . or the vacation by. it is a sound and useful rule to consider the power of removal as being an incident to the power of appointment. “To replace” is to take the place of. otherwise. Qualifications.

DECISION CORONA. The pertinent facts. Calamba of the Aviation Security Division of the ATO formally filed with the Department of Transportation and Communication (DOTC) her protest against the promotional appointment of respondent as Chief Aviation Safety Regulation Officer. then DOTC Secretary Jesus B. entitled Saturnino de la Cruz vs. 1994. Director Nelson Acebedo of CSC-NCR requested ATO Executive Director Manuel Gilo to comment on the appeal and to submit to the CSC-NCR the documents pertinent thereto. 158737. he was a Check Pilot II in the Air Transportation Office (ATO). vs. DOTC. 2003 resolution[2] of the Court of Appeals in CA-G.[3] as narrated by the Office of the Solicitor General.WHEREFORE. of the Regional Trial Court of Lanao Del Norte is AFFIRMED. Respondent was promotionally appointed to the said position on November 28. On July 20. 2003 decision[1] and June 17. petitioner. 1995. 1995. 54088. Apparently dissatisfied. 1995. SATURNINO DE LA CRUZ. No costs. presently holding the position of Chief Aviation Safety Regulation Officer of the Aviation Safety Division. respondent. consequently approving Saturnino de la Cruz’ appointment as Chief of the Aviation Safety Regulation Office. No. 98-2970 and 99-1451. duly attested by the Civil Service Commission (CSC). August 31. 2004] CIVIL SERVICE COMMISSION. In that decision.R. Calamba appealed the decision of the DOTC Secretary to the CSC-NCR. . SO ORDERED. Garcia rendered a decision finding the protest without merit.: Before us is a petition for certiorari under Rule 45 of the Revised Rules of Court. the appellate court set aside CSC Resolution Nos. EN BANC [G. Under date of October 17. Civil Service Commission. claiming among others that respondent did not meet the four-year supervisory requirement for said position. But prior thereto. dated 19 November 1997. seeking to review and set aside the May 14. follow. Annabella A. In a letter dated February 9. SP No. J. Respondent Saturnino de la Cruz is an employee of the Air Transportation Office.R. the instant petition is DENIED and the decision.

that experience-wise. Director Gilo argued that Calamba had no legal personality to file a protest because she is not a qualified next-in-rank and that the protest was filed out of time. Mr. dela Cruz could not have exercised managerial or supervisory functions for the required number of years. But to no avail. the CSC-NCR again wrote Director Gilo regarding the matter on May 5. s. Subsequently. CSC-NCR Director Acebedo granted Director Gilo’s request and affirmed the approval of respondent’s appointment as Chief Aviation Safety Regulation Officer. Mr. On January 5. CSC-NCR Director Acebedo ruled that there is no cogent reason to disturb earlier rulings on the matter. 1997. rules and regulations pertaining to licensing. directing. vis-à-vis the experience requirements of the approved ATO Qualification Standards. we find that the only issue to be resolved is whether or not the protestee meets the minimum experience requirements as of the date of the protestee’s appointment to the contested position. coordinating and supervising the enforcement of air safety laws. 1997. 1997 was filed by Director Gilo with the CSC-NCR. On November 18. citing several reasons in support thereof. organizing. dela Cruz’ work experience prior to his appointment to the contested position did not concur therewith. in a letter dated January 13. The contested position requires four years of work experience in position/s involving management per Qualification Standards Manual prescribed by MC No. 1993 and/or four years of experience in planning.Since the CSC-NCR received no action on said request for comment. 1998. ATO Director Gilo wrote the CSC-NCR asking for the suspension of the order recalling respondent’s appointment. a Manifestation with Motion to Admit Addendum dated December 22. He said: “xxx xxx xxx. On October 14. dela Cruz did not meet the requirements of the contested position as of the date of his appointment thereto. He also denied ATO Director Gilo’s request. 1997. He likewise asserted that respondent had fully met the qualifications required of the position. 46. for the last time. for lack of merit. the CSC-NCR rendered its decision upholding the protest of Calamba and recalling the approval of respondent’s appointment as Chief Aviation Safety Regulation Officer. We are of the view therefore. 1998. Strangely. xxx xxx xxx. Moreover.” Under date of December 11. xxx xxx xxx Taking into account his previous positions. Said the CSC-NCR: “After an initial evaluation of the protest. x x x. Mr. rating and checking of all airmen and mechanics and regulation of the activities of flying schools per ATO Qualification Standards xxx. 1997. the CSC-NCR reiterated to Director Gilo its request for comment. .

We reviewed again the documents including the Office Orders designating protestant dela Cruz to supervisory position which were obviously issued during the latter part of 1993. 54088. the instant motion for reconsideration of Saturnino dela Cruz is hereby denied. he was short of the required number of years of work experience for the contested position as of the date of the issue of his appointment. When asked by the CSC to clarify the conflicting rulings. 1999. Calamba is hereby granted. 2003. In a decision[4] dated March 14. 1998.” Acting on the request for reconsideration filed by respondent. 1998 ruling of the CSC-NCR. Accordingly. On November 13. Petitioner’s motion for reconsideration was subsequently denied in a resolution issued on June 17. CSC Resolution No. the CSC rendered its Resolution No. 98-2970. Hence.R. respondent filed a petition for review with the Court of Appeals. the decretal portion of which reads: “WHEREFORE. up to present. considering that Mr. the dispositive portion of which reads: “WHEREFORE. Nevertheless. the appeal of Annabella A. the instant petition for review. the CSC rendered its Resolution No. xxx xxx xxx. 1998. 1994. The CSC treated Calamba’s request as an appeal. the Court of Appeals granted the petition by setting aside CSC Resolution Nos. 98-2970 and 99-1451 and approving respondent’s appointment as Chief of the Aviation Safety Regulation Office. A liberal consideration thereof would come up with a little over one year of supervisory and managerial experience. xxx xxx xxx. docketed as CAG. supervened by his permanent appointment thereto as Chief thereof in November 28. Certainly. 98-2970 and 99-1451.” In a letter dated January 26. Calamba requested the CSC to implement the January 5. dela Cruz has already in his favor at least four years of continuous supervisory/managerial experience from his designation as Acting Chief of the Aviation Safety Regulation Division.” On August 11. he has substantially satisfied the four years experience required for appointment to the contested position. 2003. 98-2970 dated November 13. The appointment of Saturnino De la Cruz as Chief Aviation Regulation Officer is disapproved. Petitioner contends that the appellate court erred in approving respondent’s appointment as Chief Aviation Safety Regulation Officer despite his failure to meet the minimum four-year managerial and . SP No. 991451 on July 6. 1999. seeking to nullify CSC Resolution Nos. 1998 stands. CSC-NCR Director Acebedo explained that the January 5. De la Cruz is hereby reverted to his former position. 1998 ruling is unofficial and inexistent.

[6] the contested position required four years of work experience in managerial position(s) per the Qualification Standards Manual prescribed by MC No. It is a well-settled rule in statutory construction that the use of the term “and/or” means that the word “and” and the word “or” are to be used interchangeably. directing. 1st Grade Relevant Eligibility for Second Level Position[5] As noted by the CSC-NCR. However.[7] The word “or” is a disjunctive term signifying dissociation and independence of one thing from another. coordinating. rules and regulations pertaining to licensing. organizing. 1993 and/or four years of experience in planning. s. and supervising the enforcement of air safety laws. Contrary to petitioner’s contention. organizing. Planning. rules. upon the issuance of respondent’s appointment on November 28. organizing. respondent has sufficiently complied with the required experience standards. directing. rating and checking of all airmen and .supervisory qualification for the position. 1994 as Chief Aviation Safety Regulation Officer. the use of the disjunctive term “or” in this controversy connotes that either the standard in the first clause or that in the second clause may be applied in determining whether a prospective applicant for the position under question may qualify.[8] Thus. directing. It further contends that respondent’s completion of the required experience during the pendency of the present case cannot be counted in his favor because compliance with the prescribed mandatory requirements should be as of the date of issuance of the appointment and not the date of approval by the CSC or the resolution of the protest against the appointment. coordinating and supervising the enforcement of air safety laws. 1994. Petitioner’s insistence that respondent failed to meet the four-year managerial and supervisory experience requirement is misplaced. rating and checking of all airmen and mechanics and the regulation of the activities of flying schools. and regulations pertaining to licensing. specialized course in aircraft maintenance / air carrier operations/ flight dispatching/ aircraft accident investigation/ equipment qualification course / flight training (local & abroad)ELIGIBILITY:Relevant RA 1080 Career Service Prof. rules and regulations pertaining to licensing. 46. coordinating and supervising the enforcement of air safety laws. rating and checking of all airmen and mechanics and regulation of the activities of flying schools per the above-stated ATO-DOTC Qualification Standards. First. At the time of his permanent appointment on November 28. the work already rendered by respondent in the ATO at the time of his appointment was well within the supervisory standard in the second clause. The petition lacks merit. the qualification standards of the DOTC for the position of Chief Aviation Safety Regulation Officer were as follows: EDUCATION:Bachelor’s Degree related to AviationEXPERIENCE:4 years of experience in planning. License required: Airline Transport Rating / Flight Operations Officer / Aircraft Maintenance Engineer (A&P) License / Flight Engineer License TRAINING:In-service training in management. Respondent would indeed lack the required years of work experience to qualify for the contested position if the managerial standards in the first clause above were to be strictly followed. respondent had a little over one year of managerial experience from his designation as Acting Chief of the Aviation Safety Division during the latter part of 1993.

Respondent passed the rigid screening of the ATO Personnel Selection/Promotion Board as well as the oral and written examinations of the DOTC Selection Board. Capt. 1984Air Carrier Safety InspectorMarch 1. The appellate court was therefore correct in setting aside the assailed CSC resolutions and considering the respondent’s total work experience as sufficient to meet the supervisory standards under the second clause. DOTC Assistant Secretary Panfilo V. dela Cruz has been with the Air Transportation Office for more than 13 years already and during such period. Civil Service Commission. in four of the five sections of the Aviation Safety Division of the ATO definitely met the minimum supervisory experience required of respondent for the position. namely: March 6. Villaruel. integrity. 1981 to February 5. he faithfully and efficiently (served in) four of the five sections of the Aviation Safety Division of which the position under consideration is the head. and when he organized the Air Transportation Office (ATO) Operations Center which is now on a 24-hour operation and serving as the nerve center of this Office.mechanics and regulation of the activities of flying schools were part of the work performed by respondent for more than 13 years prior to his appointment. Jr. respondent’s promotional appointment was issued in accordance with petitioner’s selection process.[10] this Court held that the rule that appointees must possess the prescribed mandatory requirements cannot be so strictly interpreted as to curtail an agency’s discretionary power to appoint. 1983Supply Checker Junior Aeronautical EngineerFebruary 6. thereby gaining more varied experience and working knowledge of the most important and sensitive functions of the Division over other applicants. 1981 to July 15. 2. 1984 to February 28. 1987 March 1. The recommendee always performs his assigned tasks promptly with dedication. 1994 November 28. Second. In Rapisora vs. as long as the appointee possesses other qualifications required by law. . noted that: 1. Before respondent was appointed to the contested position. 1983 to February 29. thereby finding respondent qualified for appointment to the contested position. spanning more than 13 years. 1981 July 16. high sense of responsibility and professionalism which he had demonstrated when he established and developed the Airport Crash Rescue Organization (ACRO) procedure to various national airports of the country. 1987 to November 27. 1994 to dateCheck Pilot I Check Pilot II Chief Aviation Safety Regulation Officer[9]These positions. he had held several other positions in the ATO.

.[14] in addition to his duties as Check Pilot II. He is a dedicated public servant and is always willing to respond to call of duty even beyond office hours like when he is flying the ATO’s aircraft for navigation aide check during holidays and weekends. to reward the civil servant who has chosen to make his employment in the Government a lifetime career in which he can expect advancement through the years for work well done. Respondent also organized the Air Transportation Office Operations Center which now provides air service assistance on a 24-hour basis. Trinidad. chair of the Personnel Selection Board. In Salles vs. Political patronage should not be necessary. aside from conducting checkride to airmen prior to issuance of the pilot license.[13] As a privileged holder of such license. not least important. dela Cruz is an outstanding team worker as well as a leader and promotes enthusiasm among co-workers.. His record alone should be sufficient assurance that when a higher position becomes vacant. cabin and crew members to ensure compliance with air safety laws.3. Capt. of the ATO per Office Order No.”[17] It is elementary in the law of public officers that the power to appoint is in essence discretionary on the part of the proper authority. Aviation Safety Division. rules and regulations. including occupational competence. He accepts stress situations and performs extremely well. moral character. respondent exercised administrative supervision and control over pilots. Civil Service Commission. Third. The last trait should always be given appropriate weight.” As stated by ATO Executive Director Manuel Gilo in his letter to CSC-NCR Director Nelson Acebedo. et al.[15] In Teologo vs. In addition.[11] Because of respondent’s excellent credentials. if warranted. education. He was also designated Acting Chief. strongly recommended his promotional appointment to the contested position. “a proven excellent performance of a person is better than just experience by occupying a position but lacks dedication to duty. 4. He handles all areas of job with minimal supervision and accomplishes objectives efficiently. in the appointment or promotion of employees.[16] the Supreme Court ruled: “Promotions in the Civil Service should always be made on the basis of qualifications. respondent’s multifarious experiences and trainings[12] in air transportation were taken into account when he was chosen for the subject position. loyalty to the service. he also acquired an Airline Transport Pilot’s License in 1998. Because of respondent’s commendable performance. the appointing authority considers not only their civil service eligibilities but also their performance. work experience. trainings and seminars attended. DOTC Assistant Secretary for Administrative and Legal Affairs Wilfredo M. strong leadership and technical know-how. and.[18] we had occasion to rule that. preferred to less devoted aspirants. Francisco. he was designated Chief of the Air Transportation Office Operations Center in 1993 per Office Order No. Respondent not only showed a continuing interest to improve his expertise in the field of air transportation. 211-93. 178-93. devotion to duty. he shall be seriously considered for the promotion and. respondent’s dedication to the service was demonstrated by his conceptualization and establishment of the Airport Crash Rescue Organization (ACRO) procedure in various national airports in the country to ensure the security of both airport personnel and passengers.

Formal qualifications such as age. team spirit. Sufficient if not plenary discretion should be granted to those entrusted with the responsibility of administering the offices concerned. the power to appoint rests on the head of the department. deciding for himself who is best qualified among those who have the necessary qualifications and eligibilities. Judges should not substitute their judgment for that of the appointing authority. he is also in the best position to determine who among the prospective appointees can efficiently discharge the functions of the position. In Civil Service Commission Resolution No. seminars attended. 1997. however. The final choice of the appointing authority should be respected and left undisturbed. who previously recalled respondent’s appointment. prospects for the future and best interest of the service. who can do it best should be left to the head of the office concerned provided the legal requirements for the office are satisfied. We need not rule on petitioner’s assertion that respondent’s subsequent compliance with the experience standards during the pendency of the case should not be counted in his favor since respondent was anyway qualified for the position at the time of his appointment. Consequently. loyalty. ambition. Considering that Josue has already in his favor three (3) years and eight (8) months experience as Senior Inspector up to the present. In the appointment of division chiefs.[20] Respondent was the uncontested choice of the appointing authority. ATO Executive Director Gilo also noted respondent’s full compliance with the qualifications for the position. it ruled thus: “A careful evaluation of the qualifications of Josue reveals that he meets the education. as in this case. on several occasions. training and eligibility requirements of the position. later affirmed it after a re-evaluation of the case and declared his previous ruling unofficial and inexistent. agree with petitioner that the reckoning point in determining the qualifications of an appointee is the date of issuance of the appointment and not the date of its approval by the CSC or the date of resolution of the protest against it.[19] Not only is the appointing authority the officer primarily responsible for the administration of the office. we sustain the latter. Garcia dismissed the protest against respondent’s appointment. CSC-NCR Director Acebedo. 97-0191 dated January 9. we are still inclined to uphold the appellate court’s approval of respondent’s appointment. etc. initiative.”[22] We. allowed the appointment of personnel who were initially lacking in experience but subsequently obtained the same. may be valuable but so are such intangibles as resourcefulness. there is no reason to disapprove the appointment of respondent as Chief of the Aviation Safety Regulation Office considering that he is fully qualified and evidently the choice of the appointing authority. Clearly then. Given the demands of a certain job. Then DOTC Secretary Jesus B.[21] “Every particular job in an office calls for both formal and informal qualifications.. They are in a position to determine who can best fulfill the functions of the office vacated. the appointing authority has the right of choice which he may exercise freely according to his best judgment. courtesy. But even assuming for the sake of argument that respondent failed to meet the experience requirement to qualify for the contested position. Petitioner itself has.” . number of academic units in a certain course. Between the Commission and the appointing authority. he has substantially satisfied the four (4) years experience required for the appointment as Chief Inspector.agency examinations and seniority.

This appointment was protested on December 15. The appointment of Saturnino de la Cruz as Chief Aviation Safety Regulation Officer is APPROVED. Petitioner Renato M. Garcia-Tingzon for Civil Service Commission. 98-2970 and CSC Resolution No. CIVIL SERVICE COMMISSION. vs. EN BANC G. Nachura.:p The issue raised in this case has been categorically resolved in a long line of cases that should have since guided the policies and actions of the respondent Civil Service Commission. respondent may be considered to have acquired the necessary experience for the position. 1988. Lapinid was appointed by the Philippine Ports Authority to the position of Terminal Supervisor at the Manila International Container Terminal on October 1.Following petitioner’s line of reasoning. 96298 May 14. CRUZ. Navarro & Arcilla Law Offices for petitioner. Limare and Daisy B. Jr. Disregard of our consistent ruling on this matter has needlessly imposed on the valuable time of the Court and indeed borders on disrespect for the highest tribunal. PHILIPPINE PORTS AUTHORITY and JUANITO JUNSAY. by private respondent Juanito Junsay. J. 1988. We state at the outset that this conduct can no longer be countenanced. the instant petition is hereby DENIED. respondent is deemed to have satisfactorily complied with the experience requirement for the contested position when he was designated Chief of the ATO Operations Center and Acting Chief of the ATO Aviation Safety Division. Having held said positions from 1993 to the present. 1988. respondents. LAPINID. Adolpho M. Junsay. 1991 RENATO M. WHEREFORE. Brillantes. SO ORDERED. . The decision of the Court of Appeals setting aside CSC Resolution No. who reiterated his earlier representations with the Appeals Board of the PPA on May 9. petitioner.R. Evalyn L Fetalino. Rogelio C. No. 99-1451 is AFFIRMED. Guerzon for J.

it is directed that Appellants Juanito Junsay and Benjamin Villegas be appointed as Terminal Supervisor (SG 18) vice protestees Renato Lapinid and Antonio Dulfo respectively who may be considered for appointment to any position commensurate and suitable to their qualifications. at his suggestion. the Commission disposed as follows: After a careful review of the records of the case. A second motion for reconsideration filed on September 14. 1990. 1990. and that the Commission be notified within ten (10) days of the implementation hereof. was allowed to file its own Comment. 1990. was also denied on October 19.5 VILLEGAS. the Commission finds the appeal meritorious. we resolved to require Comments from the respondents and in the meantime issued a temporary restraining order. Lapinid. 1990. 1990. 1988. When the petitioner came to this Court on December 13. SO ORDERED. and physical characteristics/personality traits.5) and Villegas (79) have an edge over that of protestees Lapinid (75) and Dulfo (78). education. integrity.for a review of the decision of the Placement Committee dated May 3. Renato — 75 DULFO. filed a motion for reconsideration on March 19. In the comparative evaluation sheets. the parties were evaluated according to the following criteria. namely: eligibility. Juanito — 79. The petitioner filed a Reply. Junsay went to the Civil Service Commission and challenged Lapinid's appointment on the same grounds he had earlier raised before the PPA. This was denied on May 25. productivity/performance/ attendance. 1990. Antonio — 78 MARIANO. The Solicitor General took a stand against the Civil Service Commission which. 1990. Cesar — 80 It is thus obvious that Protestants Junsay (79. Upon learning of the said resolution. in view of his preferential right thereto. complaining that the PPA had not acted on his protest. He contended that he should be designated terminal supervisor. In a resolution dated February 14. Benjamin — 79 LAPINID. work experience. which was denied on August 17. 7who claimed he had not been informed of the appeal and had not been heard thereon. 1989. or to any other comparable position. 1990. The Philippine Ports Authority also filed its own motion for reconsideration on June 19. Eleuterio — 79 FLORES. based on the re-appreciation of Lapinid's rating from 75% to 84%. initiative/leadership. Nestor — 80 DE GUZMAN. Alfonso — 80 VER. The results of the evaluation are as follows: JUNSAY. The private . Foregoing premises considered. On June 26.

November 15. 1990. No. No.R. 92388.respondent's Comment was dispensed with when it was not filed within the prescribed period. No.R. Minute Resolution. Santiago v.R. then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. and when it finds the appointee to be qualified and all other legal requirements have been otherwise satisfied. it has no choice but to attest to the appointment. Tagaro v. 1990. The Hon. To be sure. Civil Service Commission. 1989. Civil Service Commission. No. No. 171 SCRA 744. No. No. G. Civil Service Commission. 84022 and G. No. 85804. Elenito Lim v. November 8. June 15. Tan. 1990. En Banc. Minute Resolution. 1989. 1990. In Luego v. Remigio v. Teologo v. Simpao v.R. Zulueta v. En Banc. Bayao v.. Galura v. 92561.R. En Banc. Court of Appeals 2 this Court said: The only function of the Civil Service Commission in cases of this nature.R. Minute Resolution. et al. That recognition alone rendered it functus officio in the case and prevented it from acting further thereon except to affirm the validity of the petitioner's appointment. July 6. This is a political question involving considerations of wisdom which only the appointing authority can decide. No. Civil Service Commission. Civil Service Commission. Abdulwahab A. 90477. G. G. G. order his replacement by the latter? xxx xxx xxx Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to his best lights. June 1. in Central Bank v. If he does. En Banc. 85812. the Commission on Civil Service acknowledged that both the petitioner and the private respondent were qualified for the position in controversy. according to Luego. Alicia D. 1990. En Banc. September 13. July 31. G. Luego finally points out that the recognition by the Commission that both the appointee and the protestant are qualified for the . Minute Resolution.R. G. Civil Service Commission. 178 SCRA 733. 86324. En Banc. et al.. Civil Service Commission. 1990.R. En Banc. The same ruling has been affirmed. G. Minute Resolution. Civil Service Commission. 85976. Minute Resolution. Pintor v. 1989. We see no reason to deviate from our consistent ruling on the issue before us. 91520. is to review the appointment in the light of the requirements of the Civil Service Law. it had no authority to revoke the said appointment simply because it believed that the private respondent was better qualified for that would have constituted an encroachment on the discretion vested solely in the city mayor. No. Civil Service Commission.R. March 9. September 12. 92103. Orbos v. En Banc.R. Aurora Macacua v. Only recently. Minute Resolution. September 11.R. in practically the same language as Luego. G. Civil Service Commission. October 11. G. Mamangun. in Gaspar v. G. 1989.R. Minute Resolution. 87145. No. the only condition being that the appointee should possess the qualifications required by law. No. Civil Service Commission. 85941. 1990. 1 this Court declared: The issue is starkly simple: Is the Civil Service Commission authorized to disapprove a permanent appointment on the ground that another person is better qualified than the appointee and. xxx xxx xxx Significantly. Civil Service Commission. G. on the basis of this finding. Chairman.

members of the Armed Forces of the Philippines. the selection itself of the appointee—taking into account the totality of his qualifications. Every particular job in an office calls for both formal and informal qualifications. seminars attended. xxx xxx xxx The determination of who among several candidates for a vacant position has the best qualifications is vested in the sound discretion of the Department Head or appointing authority and not in the Civil Service Commission. (Emphasis supplied) . including those abstract qualities that define his personality—is the prerogative of the appointing authority. and let us hope for the last time. and jailguards. the clear mandate of the Court. Thus. loyalty. it has no authority to revoke the appointment simply because it considers another employee to be better qualified for that would constitute an encroachment on the discretion vested in the appointing authority. may be valuable but so are such intangibles as resourcefulness. This is a matter addressed only to the discretion of the appointing authority. except those presidential appointees. Appointment is a highly discretionary act that even this Court cannot compel. to positions in the civil service. if not defy. courtesy. team spirit. prospects for the future. firemen. Given the demands of a certain job. despite these definitive pronouncements. it is provided therein that the Commission shall have inter alia the power to: 9(h) Approve all appointments.. It is therefore incomprehensible to the Court why. The Civil Service Commission cannot substitute its judgment for that of the Head of Office in this regard. who can do it best should be left to the Head of the Office concerned provided the legal requirements for the office are satisfied. and disapprove those where the appointees do not possess appropriate eligibility or required qualifications.position in controversy renders it functus officio in the case and prevents it from acting further thereon except to affirm the validity of the former's appointment. We declare once again. of the service. While the act of appointment may in proper cases be the subject of mandamus. It is a political question that the Civil Service Commission has no power to review under the Constitution and the applicable laws. that the Civil Service Commission has no power of appointment except over its own personnel. Neither does it have the authority to review the appointments made by other offices except only to ascertain if the appointee possesses the required qualifications. etc. It cannot disallow an appointment because it believes another person is better qualified and much less can it direct the appointment of its own choice. police forces. The determination of who among aspirants with the minimum statutory qualifications should be preferred belongs to the appointing authority and not the Civil Service Commission. the Civil Service Commission has seen fit to ignore. Commenting on the limits of the powers of the public respondent. number of academic units in a certain course. and best interests. Formal qualifications such as age. whether original or promotional. initiative. Luego declared: It is understandable if one is likely to be misled by the language of Section 9(h) of Article V of the Civil Service Decree because it says the Commission has the power to "approve" and "disapprove" appointments. ambition.

No other criterion is permitted by law to be employed by the Commission when it acts on—or as the Decree says. for the Civil Service Commission not to understand them. is made PERMANENT. The bench does. We must therefore make the following injunctions which the Commission must note well and follow strictly. The Commission on Civil Service has been duly warned. it disobeys at its peril. Up to this point. While we appreciate the fact that the Commission is a constitutional body. 1990. If he does. and October 19. it is disapproved. will make it clear that all the Commission is actually allowed to do is check whether or not the appointee possesses the appropriate civil service eligibility or the required qualifications. in view especially of the status of the contemner. If it will not. The Resolutions of the respondent Civil Service Commission dated February 14. 1990. Civil Service Commission and the subsequent decisions reiterating such ruling. We note with stern disapproval that the Civil Service Commission has once again directed the appointment of its own choice in the case at bar. SO ORDERED. which expects full compliance with its decisions even if the Commission may not agree with them. Whatever the reasons for its conduct. 1990. the petition is GRANTED. we must stress. August 17. departure from the mandate of Luego by the Civil Service Commission after the date of the promulgation of this decision shall be considered contempt of this Court and shall be dealt with severely. then that is an entirely different matter and shall be treated accordingly. are REVERSED and SET ASIDE. his appointment is approved. Henceforth. and often enough. EN BANC . May 25. especially of the underscored parts. The Court believes it has stated the foregoing doctrine clearly enough.However. 1990. Henceforth. "approves" or "disapproves'—an appointment made by the proper authorities. if not. the bar does. a full reading of the provision. 1990. WHEREFORE. and we see no reason why the Civil Service Commission does not. the Civil Service Commission is ORDERED to desist from disregarding the doctrine announced in Luego v. The Civil Service Commission should recognize that its acts are subject to reversal by this Court. as a necessary reminder. But we are no longer disposed to indulge that fiction. No costs. that every department and office in the Republic must know its place in the scheme of the Constitution. The temporary restraining order dated December 13. the Court has leniently regarded the attitude of the public respondent on this matter as imputable to a lack of comprehension and not to intentional intransigence.

1988 and September 5. 1987. prohibition and mandamus. 1987. No. Singson for private respondent. Rollo.. 7-8). thereby leaving his position vacant (Rollo. Pavements and Grounds Division. Roberto L. Ricardo Medalla. 54) which endorsed the same on October 21. 1989 respectively. Apparently aggrieved over Medalla's appointment. Engr. 1987 to the Merit Systems Protection Board (MSPB) of the Civil Service Commission (hereinafter referred to as the Commission) (Annex "0-1". 50).. 90-155 and 90-373 2 of the Civil Service Commission dated February 9. was likewise promoted. STO. 1987 to the MIAA General Manager for appropriate action . Armando v. Ibid. Ricardo" revoking petitioner's appointment and directing Singson's appointment in his stead. and b) Resolution Nos. in his capacity as General Manager of the Manila International Airport Authority and ARMANDO F. 1988 and directing the Civil Service Commission — National Capital Region to ensure its immediate implementation. Engr. 1650 entitled "Singson. The MIAA Selection/Promotion Board. and the second resolution denying petitioner's motion for reconsideration. upholding the decision of the Merit Systems Protection Board dated November 9. Petitioner likewise prays for the nullification of an Office Order and a Memorandum issued by the then Manila International Airport Authority relating to the abovecited decisions and resolutions. Reynaldo F. p. PARAS.G. Ibid. On the same date.R. the said Decision's Department Manager. 1990 and April 16. p. he was promoted to Supervising Engineer A of its Buildings. in MSPB Case No. the first resolution denying petitioner's request that he be given 15 days to file his motion for reconsideration or appeal.: Petitioner. otherwise known as the B P and G Division. Medalla was issued his formal appointment by the then MIAA General Manager Aurelio German (Annex "N". Armando Singson was designated as the Acting Division Manager on July 1. J. unanimously appointed Medalla as the new Division Manager B of the B P and G Division (Annex "M". Singson filed a protest on October 19. p. however. 1987 (Annex "K". In view thereof. On February 16. In 1986. 52) after which he immediately assumed his post. in its meeting on October 9. Engr. 94255 May 5. EDUARDO O. 1990. MEDALLA. in this petition for certiorari. PATRICIA A. Elpidio Mendoza. Medalla. petitioner herein. It appears on record that in 1982.. vs. was appointed as a Geodetic Engineer of the then Manila International Airport Authority (MIAA for brevity). respondents. TOMAS. 1992 RICARDO L. Madrid & Associates for petitioner. HON. 48). Ibid. in her capacity as Chairman of the Civil Service Commission and HON. seeks to annul and set aside a) the decision and order 1 of the Merit Systems Protection Board dated November 9. SINGSON. p. CARRASCOSO. pp. JR.. petitioner.

the approved organization chart and systems of ranking positions and the qualification standards for the contested position (Annex "S"... It is directed that Mr. Both ostensibly accepted their new designations (Annex "X-3". The latter appealed the decision once more to the MSPB (Annex "Q-1". p. Ibid. 1988 of the Board on December 5.. MIAA. p. 99). this Board finds the appeal meritorious.. Ibid. p. In a letter-reply dated April 17. 88). Rollo. being the proper forum (Annex "AA". Singson's appeal to MIAA General Manager Carrascoso asking for the implementation of the same decision (Annex "B".. Medalla and Singson were subsequently reappointed as Division Manager D and Principal Engineer C respectively of the new Civil Works Division which replaced the former B P and G Division due to added functions (Annexes "X" and "X-2". Ibid. The matter was referred to the MIAA Legal Office which advised that the MIAA is not bound to follow the MSPB's directive as the said MSPB decision has already been rendered moot and academic in view of MIAA's reorganization and that protests should be addressed anew to the Task Force on Reorganization Appeals. German affirmed Medalla's promotional appointment and in effect dismissed Singson's protest (Annex "P". Ibid. Ibid. p. Medalla as Division Manager B is hereby revoked. The MSPB then required the submission of the list of positions considered next-in-rank. reiterated MIAA's position as contained in the letter of Mr. 65). Ibid. the MIAA underwent a reorganization pursuant to its Resolutions Nos. p. p. 1988. p. Notwithstanding the foregoing events. 53). Macatulad as the Officer-in-Charge. 1989. 1988. In response thereto. 102-103). 59). 1988 (Rollo. Ibid. Ibid. Ibid. 32). the appointment of appellee Mr. 1989. pp. 96-97). Macatulad added that their office will no longer submit supplemental comments on the matter (Annex "R". p. In the meantime.. instead of . pp. so Singson filed a motion to the MSPB which filed on September 5. p. the Board noted that the General Manager. Ibid. 87-55 and 87-68 dated as early as September 30 and October 22. (Annex "A". p. However. p.. pp. The contested MSPB decision therefore remained unacted upon. Singson be appointed in his stead. Evergisto C. Ibid. 100). 1988. p. pp. the new MIAA General Manager Eduardo Carrascoso sought clarification on the effectivity of this decision considering that both Singson and Medalla had already been given their positions based on the new plantilla (Annex "Y". received the decision dated November 9.. as follows: After a careful review of the records. 57).. p. MSPB Chairman Villones still declared the decision as final and executory and then directed the MIAA General Manager to comply therewith (Annex "Z". 64) which was duly complied with by the MIAA (Annex "T". 60) which again referred the same to the MIAA General Manager for comment (Annex "Q". Accordingly. 98). German.. SO ORDERED. 68-70). Ibid. On December 20. 83-343 (Annex "O". the MSPB still rendered its disputed ruling which reads: WHEREFORE. Ibid. Ibid. 104) turned to be in vain.. Acting thereon.. On July 21. 1987 respectively (Annexes "U" and "U-1".. 99) thus the MIAA Placement Committee deliberated on personnel appointments prescinding from the said pattern (Annex "W". premises considered. 63).. Mr. Its new staffing pattern was approved by the Department of Budget and Management on February 25. thus reaffirming Medalla's appointment.in accordance with Section 14 of CSC Resolution No.. Mr. Ibid.

1988 be (sic) implemented immediately. 43). v. Consequently. Jr. CSC. Ibid.. 38). Its only function is limited to approving or reviewing appointments to determine their accordance with the requirements of the Civil Service Law (Chang v. is hereby revoked. Thereafter. Ibid. p.R. Medalla filed a third motion for reconsideration which has as yet. pp. foregoing premises considered.filing a motion for reconsideration/appeal from the decision. Hence. p. p. On October 26. Ibid. Nos. G. et al. He did not file a motion for reconsideration within the reglementary period of fifteen (15) days from receipt of said decision. Civil Works Office. Accordingly. Ricardo L.. in conformance with the previous CSC resolutions issued Office Order No.. 1990. 86791. Singson to said position in accordance with MSPB Decision dated November 9.. September 12.. xxx xxx xxx SO ORDERED. Meanwhile. Thus. the Board's decision dated November 9. . Medalla promptly requested for the deferment of the said Office Order pending the resolution of his motion for reconsideration before the CSC but he was informed that his request may not be given due course as it is only a restraining order from the Supreme Court which can suspend the effectivity of any CSC ruling (Annex "F". pp. et al. Ibid. directing the revocation of the appointment of Medalla as Manager B. MIAA General Manager Carrascoso. 1990. as Division Manager D. which directed Singson and Medalla to assume their duties as Division Manager A and Principal Engineer A. 189 . 42). April 10. the decision of the Board became final and executory.R. the Order dated September 5.. and the appointment of Armando F. G. 1989. CSC. CSC. 80 on May 18. p. . p. Rollo. 90-373 dated April 16. 1990. 80455-56. 92561. it has no choice but to attest to the appointment (Central Bank of the Philippines. of the Civil Works Division (Annex "E". 113) but the motion was denied by the CSC in its Resolution No. The petition must be granted. remained pending (Annex "FF". Medalla filed before the CSC a motion for reconsideration of the above order (Annex "DD". 1989. No. respectively. G. the act of the Commission through the MSPB in replacing an appointee with an employee of its choice is at issue in the case at bar.. 1988 of Mr. the appointment dated August 1. Once again. 171 SCRA 774).R. 1988. NAIA. Accordingly. Medalla. MIAA. (Annex "B". 191 SCRA 663). as it hereby denies the request of Ricardo Medalla that he be given fifteen (15) days to file a motion for reconsideration or to appeal. 1990 stating thus: WHEREFORE. (Annex "C". in the Civil Works Division. No. The Court has already repeatedly ruled that the Commission has no such authority to do so. he requested for clarification as to whether said decision be (sic) executed.. 40-41). . Hence. 90-155 dated February 9. Medalla's second motion for reconsideration was also denied in Resolution No. the Commission resolved to deny. when the Commission finds the appointee to be qualified and all the other legal requirements have been satisfied. the present petition. Ibid. 1990 (Annex "D". Ibid. 1989 of the Merit Systems Protection Board. stands. 121). 34-35). Undaunted. its participation in the appointment process ceases (Orbos v. November 26.

G. a) the decision. May 14.. 84022 and 85804. the Court has even warned that from the date of its promulgation. 92573. Consequently. Indeed. Appointment is a highly discretionary act that even this Court cannot compel. the selection itself of the appointee –– taking into account the totality of his qualifications. June 13. G. et al. 1989. CSC. that the Civil Service Commission has no power of appointment except over its own personnel. No. CSC.. No. G. et al. No sanction. 90799. (Lapinid v. et al. No. when the appointing authority has already exercised his power of appointment. It is a political question that the Civil Service Commission has no power to review under the Constitution and the applicable laws. En banc). PREMISES CONSIDERED. Nos. et al. 198 SCRA 102). No.R.. The Commission may not and should not substitute its judgment for that of the appointing authority (Patagoc v. of the Civil Works Division. In the light of the foregoing doctrines. in view of the status of the contemnor.SCRA 464). 1990. 69137. 90229. the Commission appears to have overstepped its jurisdiction when it revoked the appointment of petitioner Medalla who was shown to have satisfied the requirements prescribed for the contested position. Ricardo Medalla and Engr.R. however. In the same case. Pintor v. Armando Singson are REINSTATED to the posts of Division Manager D and Principal Engineer C respectively. The determination of who among aspirants with the minimum statutory qualifications should be preferred belongs to the appointing authority and not the Civil Service Commission. G. Neither does it have the authority to review the appointments made by other offices except only to ascertain if the appointee possesses the required qualifications.R.R. the determination of who among several candidates for a vacant position has the best qualifications is vested in the sound discretion of the Department Head or appointing authority and not in the Commission (Gaspar v. March 9. SO ORDERED. While the act of appointment may in proper cases be the subject of mandamus.. October 18. 1991). departure from the mandate of Luego by the Commission shall be considered contempt of this Court and shall be dealt with severely. This is because the appointing authority occupies the ideal vantage point from which to identify and designate the individual who can best fill the post and discharge its functions in the government agency he heads (Abila v.R. may yet be imposed on the Commission as the act complained of occurred before the promulgation of the aforestated Lapinid decision. 189 SCRA 416). G. order and resolutions appealed from are SET ASIDE and b) Engr. 1990. 96298. In fine. and instead directed the appointment of protestant Singson. including those abstract qualities that define his personality –– is the prerogative of the appointing authority. G.R. August 5. 1986. CSC. Court of Appeals. and let us hope for the last time. This is a matter addressed only to the discretion of the appointing authority. Tan. CSC. May 14. No. the Court has categorically ruled: We declare once again. the Commission cannot revoke the same on the ground that another employee is better qualified for that would constitute an encroachment on the decision vested in the appointing authority (Luego v. 1991. 190 SCRA 777). It cannot disallow an appointment because it believes another person is better qualified and much less can it direct the appointment of its own choice. .

BUDGET SECRETARY SALVADOR ENRIQUEZ. at San Fernando. In turn.. Pampanga. Region III.[4 Quiaoit. and ATTY. would appear to have had the support of then Representative Jose Yap of the Second Legislative District of Tarlac. Bermudez.[3 On 30 June 1997. No. for the position of Provincial Prosecutor. The occurrence of a vacancy in the Office of the Provincial Prosecutor of Tarlac impelled the main contestants in this case.. JR. Quiaoit received a certified xerox copy of his appointment and. dismissing the petition for prohibition and/or injunction and mandamus. petitioner Oscar Bermudez and respondent Conrado Quiaoit. August 4. Jr. Quiaoit. nonetheless.[1 dated 20 October 1997. Respondents. J. to take contrasting views on the proper interpretation of a provision in the 1987 Revised Administrative Code. dated 02 October 1997. CONRADO QUIAOIT. signing resolutions on preliminary investigations.THIRD DIVISION [G. Petitioners. JR. on the other hand.R. vs. JUSTICE SECRETARY TEOFISTO GUINGONA. In his First Indorsement. of that assumption. following the conference. in his Second Indorsement. Quiaoit assumed office and immediately informed the President. Quiaoit emerged the victor when he was appointed by President Ramos to the coveted office. Quiaoit. as . and filing several informations before the courts. dated 22 September 1997. on 21 July 1997. performed the functions and duties of the Office of Provincial Prosecutor by issuing office orders and memoranda. On the basis of the transmittal letter of Regional State Prosecutor de Leon. was a recommendee[2 of then Justice Secretary Teofisto Guingona. The three met at the Department of Justice and. for the Chief State prosecutor. RATA and other emoluments of the office. Quiaoit had since been regularly receiving the salary. Tarlac. On 17 September 1997. Bermudez was ordered to wind up his cases until 15 October 1997 and to turn-over the contested office to Quiaoit the next day. took his oath of office before Executive Judge Angel Parazo of the Regional Trial Court (Branch 65) of Tarlac. Regional State Prosecutor de Leon forwarded to Quiaoit said original copy of his appointment. as well as the Secretary of Justice and the Civil Service Commission. DAYAON. Bermudez refused to vacate the Office of Provincial Prosecutor claiming that the original copy of Quiaoits appointment had not yet been released by the Secretary of Justice. On 23 July 1997. Bermudez and Quiaoit were summoned to Manila by Justice Secretary Guingona. Ramos is assailed in this petition for review on certiorari on a pure question of law which prays for the reversal of the Order. DECISION VITUG. Assistant Chief State Prosecutor Nilo Mariano transmitted the original copy of Quiaoits appointment to the Regional State Prosecutor Carlos de Leon. of the Regional Trial Court (Branch 63) of Tarlac. 131429.. EXECUTIVE SECRETARY RUBEN TORRES. LLOBRERA and CLAUDIO L. instituted by herein petitioners. with a prayer for the issuance of a writ of injunction/temporary restraining order. 1999] OSCAR BERMUDEZ.: The validity and legality of the appointment of respondent Conrado Quiaoit to the post of Provincial Prosecutor of Tarlac by then President Fidel V. Tarlac. the First Assistant Provincial Prosecutor of Tarlac and Officer-In-Charge of the Office of the Provincial Prosecutor. ARTURO A.

and mandamus. filed with the Regional Trial Court of Tarlac. pivot on the proper understanding of the provision of the Revised Administrative Code of 1987 (Book IV. and the application of a ruling in . with a prayer for the issuance of a writ of injunction/temporary restraining order. Bermudez together with his co-petitioners Arturo Llobrera and Claudio Dayaon. Section 9) to the effect thatAll provincial and city prosecutors and their assistants shall be appointed by the President upon the recommendation of the Secretary. petitioners call attention to the tenor of Executive Order No. of course. Hence. Petitioners contend that an appointment of a provincial prosecutor mandatorily requires a prior recommendation of the Secretary of Justice endorsing the intended appointment citing. a petition for prohibition and/or injunction. they claim.) Insisting on the application of San Juan. the case of San Juan vs. Title III. the Second Assistant Provincial Prosecutor and the Fourth Assistant Provincial Prosecutor of Tarlac. On even date. in San Fernando. In the meantime. All budget officers of provinces. he must return the list of nominees to the Governor explaining why no one meets the legal requirements and ask for new recommendees who have the necessary eligibilities and qualifications. After hearing. can be likened to the aforequoted provision of the Revised Administrative Code of 1987. by analogy. Bermudez was detailed at the Office of the Regional State Prosecutor. The legislative intent is. the trial court considered the petition submitted for resolution and. Respondents argue differently. The core issue for consideration is whether or not the absence of a recommendation of the Secretary of Justice to the President can be held fatal to the appointment of respondent Conrado Quiaoit. There is no hard-and-fast rule in ascertaining whether the language in a statute should be considered mandatory or directory. Chapter II. Region III. against herein respondents. in due time. The Provincial Budget Officer (PBO) is expected to synchronize his work with DBM. the instant recourse. Pampanga. primordial. cities and municipalities shall be appointed henceforth by the Minister of Budget and Management upon recommendation of the local chief executive concerned x x x. again so assumed office on 16 October 1997. on 10 October 1997.[6 (Emphasis supplied. CSC[5 where the Court held: "x x x The DBM may appoint only from the list of qualified recommendees nominated by the Governor. 112[7 Section 1. that. respectively. If none is qualified. issued its now assailed order dismissing the petition. challenging the appointment of Quiaoit primarily on the ground that the appointment lacks the recommendation of the Secretary of Justice prescribed under the Revised Administrative Code of 1987. The subsequent move by petitioners to have the order reconsidered met with a denial. in turn.directed. This question would.

is tangential. Title III. Chapter II.[24 in construing the law. what a subordinate officer has done in the performance of his duties. has distinctively . and that the purpose of the legislature can be accomplished in a manner other than that prescribed when substantially the same results can be obtained. however. 112 has some similarity with the provision in the 1987 Administrative Code in question.[19 as and when the former deems it to be appropriate. in character.[16 In the exercise of the power of appointment. or even nullify or set aside.[12 In Pamantasan ng Lungsod ng Maynila vs. is firmed up and addressed on a case-to-case basis. bureaus and offices. bureau and office. While the tenor of the legal provision in Executive Order No. Drilon. Expressed in another way. The nature. and in so opting. rather than as mandatory. the problem. such conferment must be understood as necessarily carrying with it an ample discretion of whom to appoint. structure and aim of the law itself is often resorted to in looking at the legislative intent. Book IV. that the phrase upon recommendation of the Secretary. exhortation or indorsement. to be a mere advise.[9 An appointment to a public office is the unequivocal act of designating or selecting by one having the authority therefor of an individual to discharge and perform the duties and functions of an office or trust. that San Juan. then the statute should be regarded merely as directory. Intermediate Appellate Court. should be interpreted.one particular instance may not necessarily be apt in another[8 for each must be determined on the basis of the specific law in issue and the peculiar circumstances attendant to it. he cannot be said as having acted beyond the scope of his authority. in the final analysis. relied upon by petitioners. it may rightly be said that the right of choice is the heart of the power to appoint.[10 The appointment is deemed complete once the last act required of the appointing authority has been complied with and its acceptance thereafter by the appointee in order to render it effective. the President has the power to assume directly the functions of an executive department. found in Section 9.[23 The President. More often than not. It should be here pertinent to state that the President is the head of government whose authority includes the power of control over all executive departments.[13 reiterated in Flores vs.[22 The recommendation is here nothing really more than advisory in nature.[11 Appointment necessarily calls for an exercise of discretion on the part of the appointing authority. it is to be pointed out. The appointing power has the right of choice which he may exercise freely according to his judgment. Control means the authority of an empowered officer to alter or modify. as well as to substitute the judgment of the latter.[20 It can accordingly be inferred therefrom that the President can interfere in the exercise of discretion of officials under him or altogether ignore their recommendations. bureaus or offices even in the exercise of discretionary authority. given the above disquisition. The doctrine in San Juan. discretionary. in essence. being the head of the Executive Department. deciding for himself who is best qualified among those who have the necessary qualifications and eligibilities. When the Constitution[17 or the law[18 clothes the President with the power to appoint a subordinate officer. It is a prerogative of the appointing power x x x[15 Indeed. could very well disregard or do away with the action of the departments. as it is normally so understood. discretion is an integral part thereof. it is said that if no consequential rights or liabilities depend on it and no injury can result from ignoring it. of the Revised Administrative Code. which is essentially persuasive in character and not binding or obligatory upon the party to whom it is made. Generally.[14 this Court has held: The power to appoint is.[21 It is the considered view of the Court.

the recommendation of the Secretary of Justice and the appointment of the President are acts of the Executive Department itself. in his capacity as MAYOR OF QUEZON CITY. through the Secretary of Budget and Management. and there is no sharing of power to speak of. The tug of war between the Secretary of Budget and Management and the Governor of the premier province of Rizal over a seemingly innocuous position involves the application of a most important constitutional policy and principle. No costs. MATHAY JR. one in favor of centralized power in Malacaang and the other beneficial to local autonomy. SO ORDERED. in the appointment of a Provincial Budget Officer. JESUS B. We have to obey the clear mandate on local autonomy. BUENAVENTURA PUNAY.[25 The Court there has explained that the President merely exercises general supervision over local government units and local officials. the executive department. thus: The issue before the Court is not limited to the validity of the appointment of one Provincial Budget Officer. indeed had to share the questioned power with the local government. No. EDUARDO A. 1999] ISMAEL A. MANUEL CHUA. ANSELMO MATEO. the goal of meaningful local autonomy is frustrated and set back.given stress to the constitutional mandate on local autonomy. CHRISTOPHER SANTOS. xxx When the Civil Service Commission interpreted the recommending power of the Provincial Governor as purely directory.R. petitioner. TAN. CIVIL SERVICE COMMISSION. COURT OF APPEALS. WILLIAM PANTI.. CESAR FRANCISCO. WHEREFORE. DEOQUINO. ENRICO BANDILLA. URCIA. If the DBM Secretary jealously hoards the entirety of budgetary powers and ignores the right of local governments to develop self-reliance and resoluteness in the handling of their own funds. REGONDOLA. the latter being deemed for all intents and purposes as being merely an extension of the personality of the President. In the instant case. . it went against the letter and spirit of the constitutional provisions on local autonomy. MICHAEL A. the petition is DENIED. December 15. FELINO CAMACHO. DE GUZMAN. Where a law is capable of two interpretations. LOURDES M. the scales must be weighed in favor of autonomy. respondents. JACINTO and CESAR DACIO. ROMUALDO LIBERATO. DANTE E. vs. EN BANC [G. 124374.[26 hence. that of local autonomy. JAIME P. JR..

COURT OF APPEALS. CIVIL SERVICE COMMISSION and SANDY C. petitioner. The facts behind the consolidated petitions are undisputed. Series of 1990. MATHAY. petitioner. 1999] CIVIL SERVICE COMMISSION.R. At the heart of these petitions is Section 3 of the Ordinance which provides: Sec. 51 on the ground that the same never became law. For Quezon City CSU employees.. December 15. 33. Funds provided for in the 1990 Budget for the absorbed offices shall be used as the initial budgetary allocation of the Department. the Secretary of Justice rendered Opinion No. 51 which was allegedly signed into law on November 15 or 16. revoke and disapprove within one year from issuance of the said Memorandum. the Civil Service Commission issued Memorandum Circular No. MATHAY. 3. On February 23. . 30. Among those affected by the revocation of appointments are private respondents in these three petitions. [G. Simon appointed private respondents[2] to positions in the Civil Service Unit (“CSU”) of the local government of Quezon City. JR. THE HON. Civil Service Units were created pursuant to Presidential Decree No. stating that Presidential Decree No. all appointments in CSUs created pursuant to Presidential Decree No. in his capacity as MAYOR OF QUEZON CITY. No.”[4] On June 4. 1990. the effects of the circular were temporarily cushioned by the enactment of City Ordinance No. COURT OF APPEALS and ISMAEL A. No. 126366. . Traffic Management Unit. JR. DECISION YNARES-SANTIAGO. and Disaster Coordinating Council are hereby absorbed into the department of public order and safety established under Section one hereof to be given appropriate position titles without reduction in salary. 126354. NC-140. which established the Department of Public Order and Safety (“DPOS”). directing all Civil Service Regional or Field Offices to recall. vs. respondents. 1972.R. MARQUEZ.. . (Underscoring ours).: Before this Court are three consolidated petitions[1] filed under Rule 45 of the Revised Rules of Court. 51 was never published in the Official Gazette. Tuvera[3] the presidential decree is deemed never “in force or effect and therefore cannot at present. respondents. . conformably with our ruling in Tanada vs. J. vs.[G. Mr. seniority rights and other benefits. Brigido R. The present personnel of the Civil Security Unit. Anti-Squatting and Surveillance and Enforcement Team. Therefore. December 15. be a basis for establishment of the CSUs . 1999] ISMAEL A. During his term as Mayor of Quezon City. 1990.

P. however. pursuant to the provision on absorption in Quezon City Ordinance No. Upon their expiry. Jr.[6] Petitioner brought petitions for certiorari to this Court. 126366 After the non-renewal of their appointments. Simon remedied the situation by offering private respondents contractual appointments for the period of June 5. 1992. The appointments were renewed by Mayor Simon for the period of January 1. 337 shows that the power to appoint rests exclusively with the local chief executive and thus cannot be usurped by the city council or sanggunian through the simple expedient of enacting ordinances that provide for the “absorption” of specific persons to certain positions. NC-140. No.[7] to annul the resolutions but. On July 1.R. . Hence. 337. 1991 to December 31. were no longer renewed. 124374 and G. On May 11. In the instant petition for review. 1992. jointly. As stated. these appointments. was elected Mayor of Quezon City. 1992. private respondents in these two petitions appealed to the Civil Service Commission. in accordance with Revised Administrative Circular No. We note that Section 3 of the questioned Ordinance directs the absorption of the personnel of the defunct CSU into the new DPOS. a review of the provisions of B. petitioner Ismael A. is in effect dictating who shall occupy the newly created DPOS positions. the Court of Appeals dismissed the petitions for certiorari. the city council or sanggunian. G. Mayor Brigido R. Mayor Mathay again renewed the contractual appointments of all private respondents effective July 1 to July 31. Mathay. of private respondents’ appointments became the seed of discontent from which these three consolidated petitions grew. The CSC issued separate resolutions holding that the reappointment of private respondents to the DPOS was automatic. Section 3 of the said Ordinance is invalid for being inconsistent with B. Jr. 337 or the old Local Government Code and not the Local Government Code of 1992 which became effective only on January 1. The non-renewal by Quezon City Mayor Ismael A. we find that the Civil Service Commission erred when it applied the directives of Ordinance NC-140 and in so doing ordered petitioner to “reinstate” private respondents to positions in the DPOS. through the Ordinance. Mathay. 1991. when the material events in this case transpired. 1-95. Applying the said law. We discuss the merits of the petitions of Mayor Ismael A. The Ordinance refers to personnel and not to positions. the regular and permanent positions in the DPOS were not filled due to lack of funds for the new DPOS and the insufficiency of regular and permanent positions created. Mathay. 1992. However.R. 1992. No.Despite the provision on absorption. petitioner asserts that the Court of Appeals erred when it ruled that respondent Civil Service Commission has the authority to direct him to “reinstate” private respondents in the DPOS. We agree with petitioner. The law applicable is B.P. Series of 1990. the petition were referred to the Court of Appeals.P. Jr.[5] and ordering their reinstatement to their former positions in the DPOS. 1992 to June 30.

[13] This task. By ordering petitioner to “reinstate” private respondents pursuant to Section 3 of the Ordinance. The powers of the city council and the city mayor are expressly enumerated separately and delineated by B. Barba. The Civil Service Commission cannot encroach upon the discretion vested in the appointing authority. the Civil Service Commission substituted its own judgment for that of the appointing power.P. on the other hand. The Ordinance refers to the “personnel of the CSU”. It does not have the authority to direct that an appointment of a specific individual be made. In Apurillo vs. In a long line of cases. The city council has no power to appoint. it would have said so in no uncertain terms. In its decision of March 21. The Civil Service Commission argues that it is not substituting its judgment for that of the appointing power and that it is merely implementing Section 3 of Ordinance NC-140. This is clear from Section 177 of B.”[14] The above premises considered. 1996 the Court of Appeals held: . the power to appoint is vested in the local chief executive. Mathay.P. Once the Civil Service Commission attests whether the person chosen to fill a vacant position is eligible. Petitioner similarly assails as error the Court of Appeals’ ruling that private respondents should be automatically absorbed in the DPOS pursuant to Section 3 of the Ordinance. When the Civil Service Commission ordered the reinstatement of private respondents. 337.[10] Had Congress intended to grant the power to appoint to both the city council and the local chief executive. Expressio unius est exclusio alterius. we rule that the Civil Service Commission has no power to order petitioner Ismael A. The provisions of B. to reinstate private respondents. its role in the appointment process necessarily ends. is essentially discretionary and cannot be controlled even by the courts as long as it is properly and not arbitrarily exercised by the appointing authority. The power to appoint is not one of them. of appointment. we held that “appointment is essentially a discretionary power and must be performed by the officer in which it is vested. 337 are clear.e. there is therefore no room left for the exercise of discretion. the Court of Appeals makes the sweeping statement that “the doctrine of separation of powers is not applicable to local governments. is limited to creating.P. This cannot be done. the identities of which could not be mistaken. i.[11] we have consistently ruled that the Civil Service Commission’s power is limited to approving or disapproving an appointment. The resolutions of the Civil Service Commission likewise call for the reinstatement of named individuals.”[8] We are unable to agree. Jr. 337 which lists the powers of the sanggunian.In upholding the provisions of the Ordinance on the automatic absorption of the personnel of the CSU into the DPOS without allowance for the exercise of discretion on the part of the City Mayor. As stated above. There being no issue as to who are to sit in the newly created DPOS. it technically issued a new appointment. In Farinas vs. Civil Service Commission.[9] The power of the city council or sanggunian. consolidating and reorganizing city officers and positions supported by local funds. since the power of appointment is a discretionary power.[12] we held that the appointing authority is not bound to appoint anyone recommended by the sanggunian concerned.

[21] We note that Section 1 of Ordinance NC-140 provides: “There is hereby established in the Quezon City Government the Department of Public Order and Safety whose organization. subject again to the attesting power of the Civil Service Commission. Accordingly. absorbing the ‘present personnel of the Civil Security Agent Unit’ in the DPOS was earlier enacted. they have to be extended an original appointment. Neither could it impose duties. In Romualdez III vs. and therefore. At the most. 1990. functions and responsibilities are as provided or defined in . Civil Service Commission[18] we held that “a void appointment cannot give rise to security of tenure on the part of the holder of the appointment.“were invalid ab initio. It simply did not come into existence as the Presidential Decree creating it never became law. Their seniority rights and permanent status did not arise since they have no valid appointment. the private respondents never held permanent positions. 1991.[17] Since Presidential Decree 51 creating the CSU never became law. by operation of said Ordinance private respondents were automatically absorbed in the DPOS effectively as of March 27. It did not create an office. private respondents were still holders of de jure appointments as permanent regular employees at the time. It could not afford any protection. When the temporary appointment was not renewed. Civil Service Commission[20] we treated temporary appointments as follows: “The acceptance by the petitioner of a temporary appointment resulted in the termination of official relationship with his former permanent position. The non-renewal of these appointments cannot therefore be taken against petitioner. it could not be a source of rights.”[19] this cannot apply to the case at bar.”[15] (Underscoring ours. It is as inoperative as though it was never passed. the absorption contemplated therein is not possible. The right exists only by virtue of a law expressly or impliedly creating and conferring it.) Another argument against the concept of automatic absorption is the physical and legal impossibility given the number of available positions in the DPOS and the number of personnel to be absorbed. structure.” (Underscoring ours) It is axiomatic that the right to hold public office is not a natural right. “Being then not members of the Civil Service as of June 4. they cannot be automatically absorbed/reappointed/appointed/reinstated into the newly created DPOS. the CSU was not abolished.” (Underscoring ours. the petitioner had no cause to demand reinstatement thereto.“It is clear however. In this case.[16] the private respondents’ appointments in the defunct CSU . private respondents held temporary and contractual appointments.. 1990. In Debulgado vs. NC-140. For them to enter the Civil Service after the revocation and cancellation of their invalid appointment.” While the Court of Appeals was correct when it stated that “the abolition of an office does not mean the invalidity of appointments thereto. as petitioner correctly points out. thus.) The decision is based on the wrong premise. Since the CSU never legally came into existence. that Ordinance No. Even assuming the validity of Section 3 of the Ordinance. duties. particularly on March 27.

00 and six Security Agents with a monthly salary of P3. Labajo has opted not to appeal.the attached supporting documents consisting of eighteen (18) pages which are made integral parts of this Ordinance. Clearly. or the DPOS. Basic is the rule that “every action must be prosecuted or defended in the name of the real party in interest.102. 955040 and 932732 and held that the Civil Service Commission has no authority to compel the mayor of Quezon City to “reinstate” Jovito C. In Ralla vs. NC-140 allowed only two slots for the position of Security Officer II with a monthly salary of P4. It escapes us how one can “relinquish” or “renounce” a right one never possessed. which overturned CSC Resolution Nos. Civil Service Commission.[25] Mendez vs.418. Civil Service Commission. Civil Service Commission[26] and Magpale vs. Civil Service Commission seeks the reversal of the decision of the Court of Appeals of July 5. It is Jovito C.102.”[22] A real party in interest is the party who stands to be benefited or injured by the judgment in the suit.00. is the real party in interest.00 and four slots for the position of Security Agent with a monthly salary of P3. making automatic absorption impossible. for lack of a permanent appointment to the said agency. Labajo. We note that the person adversely affected by the Court of Appeals decision. Labajo who will be benefited or injured by his reinstatement or nonreinstatement.”[23] As a general rule. Jovito C. We are aware of our pronouncements in the recent case of Civil Service Commission v. an interest in issue and to be affected by the decree. considering that in the defunct CSU there are twenty Security Officers with a monthly salary of P4. In the case at bar. or mere incidental interest. A person waiving must actually have the right which he is renouncing. Labajo to the DPOS.” A review of the supporting documents shows that Ordinance No. 1996. G. not the Civil Service Commission. Ralla we defined interest as “material interest.[27] In Dacoycoy. Pedro Dacoycoy[24] which overturned our rulings in Paredes vs.00. it is evident that Jovito C. for lack of a law creating it. Considering that private respondents did not legally hold valid positions in the CSU. the positions created in the DPOS are not sufficient to accommodate the personnel of the defunct CSU. . The limited number of slots provided in the Ordinance renders automatic absorption unattainable.R. petitioner. we affirmed the right of the Civil Service Commission to bring an appeal as the aggrieved party affected by a ruling which may seriously prejudice the civil service system. as distinguished from mere interest in the question involved. it becomes unnecessary to discuss whether their acceptance of the contractual appointments constitutes an “abandonment” or “waiver” of such positions. The standing of petitioner Civil Service Commission to bring this present appeal is questionable. or the party entitled to the avails of the suit. one having no right or interest to protect cannot invoke the jurisdiction of the court as a party-plaintiff in an action.418. 126354 In this case.

SO ORDERED. however. Its mandated function is to “hear and decide administrative cases instituted by or brought before it directly or on appeal. EN BANC G. Accordingly. Therefore. involving as it does the reinstatement or non-reinstatement of one obviously reluctant to litigate. The assailed decision of the respondent Court of Appeals dated July 5. No. vs. is “reinstatement. 110598 December 1. is different from the case at bar. the petitions of Ismael A. the Civil Service Commission can be likened to a judge who should “detach himself from cases where his decision is appealed to a higher court for review. WHEREFORE. No. Mathay in G. the Civil Service Commission dangerously departed from its role as adjudicator and became an advocate. the ruling in Dacoycoy does not apply. To be sure.”[28] In instituting G. No. when the resolutions of the Civil Service Commission were brought before the Court of Appeals. 126354. The subject of the present case. No. The petition of the Civil Service Commission in G. 1996 is AFFIRMED. 1996 are REVERSED and SET ASIDE. As a quasi-judicial body.” We fail to see how the present petition. can impair the effectiveness of government. 1996 and January 15. 1994 MONA A.R. OFFICE ON MUSLIM AFFAIRS (OMA) and ROCAINA M.R. 126366 are GRANTED and the decisions of the Court of Appeals dated March 21.R.The aforementioned case. CIVIL SERVICE COMMISSION.”[29] not to litigate. 126354 is DISMISSED for lack of legal standing to sue. No.R. 126354. we rule that the Civil Service Commission has no legal standing to prosecute G. No. No costs. Dacoycoy was an administrative case involving nepotism whose deleterious effect on government cannot be overemphasized. including contested appointments and to review decisions and actions of its offices and agencies.R. on the other hand. .124374 and G. the Civil Service Commission was included only as a nominal party. TOMALI petitioner.R.

. the Chief of the Human Resources Management Division of the OMA communicated to petitioner the disapproval/expiration of her appointment. revoking the previous incomplete appointment of petitioner. Petitioner. Said provision reads. Section 11. Clerk Typist (02 January 1987 to 30 June 1989). Lucman to the position in question (DMO II). petitioner Mona A.: In this special civil action for certiorari. Tingcap T. which shall be the date appearing on the face of the instrument. appointed private respondent Rocaina M. of the Omnibus Rules Implementing Book V of Executive Order No. Public Attorney's Office for petitioner. the appointment had not yet been transmitted to the Civil Service Commission ("CSC") for approval. As her appointment is incomplete for lack of the requisite approval of the Civil Service Commission or its proper Regional or Field Office. sent public respondent OMA a letter protesting her replacement. on 29 July 1991.LUCMA. at which time. Her prior continuous stay in office was at most by mere tolerance of the appointing authority. In this regard. On 12 August 1991. 3 The Merit Systems Protection Board ("MSPB"). Ali Basir Lucman. as "Budget Assistant" (01 July 1989 to 31 October 1990). hence. petitioner reiterated her protest. VITUG. no right to security of tenure as guaranteed by law and the Constitution attaches thereto or for incumbent to invoke. On 01 July 1990. . respondents. or on 01 November 1990. 1 On 16 July 1991. petitioner questions her "replacement" by private respondent in a contested position in the Office on Muslim Affairs. incomplete. dismissing the protest/complaint for lack of merit. within thirty (30) days from the date of issuance. petitioner had worked in different capacities with the Mindanao State University starting as Records Clerk (01 June 1983 to 31 December 1986). 11. acting thereon. shall be ineffective. Prior to her assumption to the new position. Administrative Code of 1987 is clear and explicit. it appears that the latter has no basis in law to cling to the contested position. MSPB held: Glaring is the fact that protestant's appointment to the contested position was not approved by the Civil Service Commission. and. dated 23 July 1992. Pundato. Rule V. . finally. . An appointment not submitted to the Commission. thus: Sec. . She assumed the duties and functions of the office four months later. private respondent took her oath of office and assumed the duties and functions of DMO II. Tomali was appointed Development Management Officer II ("DMO II") in the Office on Muslim Affairs ("OMA"). J. As applied to the case of the herein protestant. rendered a decision. Dr. Mortaba for private respodent. 292. 2 Forthwith. the new Director of the OMA. On 01 August 1991. The appointment was extended by then OMA Executive Director Dimasangcay A.

Powers and Functions of the Commission. There is no showing that the non-submission was motivated by bad faith. the OMA Executive Director may. otherwise the appointment becomes ineffective thirty days thereafter. whether original or promotional. An appointment not submitted to the Commission within thirty (30) days from the date of issuance which shall be the date appearing to the face of the appointment. dated 12 March 1993. if this should take place. All appointments requiring the approval of the Commission as herein provided. in this case. 7 Compliance with the legal requirements for an appointment to a civil service position is essential in order to make it fully effective. 11. We fail to see any merit in the petition. 8 Without the favorable certification or approval of the Commission. petitioner appealed to the CSC. in cases when such approval is required. police forces. the Commission dismissed the appeal for lack of merit. 4 Her request for reconsideration having been denied on 27 November 1992. 9. provides: Sec. That the Commission shall keep a record of appointments of all officers and employees in the civil service.xxx xxx xxx That being so. — The Commission shall administer the Civil Service and shall have the following powers and functions: xxx xxx xxx (h) Approve all appointments. 292. shall be ineffective. . no title to the office can yet be . and jailguards. 5 Hence. and disapprove those where the appointees do not possess the appropriate eligibility or required qualifications. in the exercise of sound discretion. finally. spite or malice or at least attributable to the fault of the newly-installed OMA Executive Director. An appointment to a position in the civil service is required to be submitted to the CSC for approval in order to determine. The circumstance showing that the non-approval of protestant's appointment was due to the belated transmittal thereof to this Commission is of no consequence nor improve her lot as a holder of an incomplete appointment. An appointment shall take effect immediately upon issue by the appointing authority if the appointee assumes his duties immediately and shall remain effective until it is disapproved by the Commission. 6 The Omnibus Rules Implementing Book V of Executive Order No. . whether the proposed appointee is qualified to hold the position and whether or not the rules pertinent to the process of appointment are followed. members of the Armed Forces of the Philippines. also known as the Administrative Code of 1987. among other things. without prejudice to the liability of the appointing authority for appointments issued in violation of existing laws or rules: Provided. . thus: Sec. firemen. In its Resolution No. to positions in the civil service. 93-945. cancel or revoke the said incomplete appointment and appoint another person. the instant recourse to this Court. in main. . except those of presidential appointees. the proper appointing authority. shall be submitted to it by the appointing authority within thirty days from issuance.

10 Petitioner faults public respondents for their failure to have her appointment properly attended to and timely acted upon and for. 807. Considering that Tomali had already been separated from the service upon recall of her appointment. her protest against the appointment of Rocaina Lucman has no merit. on the necessity of approval of the Commissioner of Civil Service of appointments. such as to be expected. resulting in the non-observance of the pertinent rules on the matter does not render the legal requirement. it would likewise be precipitate to invoke the rule on security of tenure. acquiescence or mistake of the proper officials. and such prerogative could not be questioned even on a showing that petitioner might have been better qualified for the position. said: The instant case is about the recall of Tomali's appointment as Development Management Officer II. Subsequently. Rupisan. The employee. this Commission upholds the power of the appointing authority to recall an appointment.) Further.deemed to be permanently vested in favor of the appointee. 1991. Petitioner's appointment was issued on 01 July 1990. Accordingly. She assumed the position four months after her appointment was issued or months after that appointment had already lapsed or had become ineffective by operation of law. foregoing premises considered. therefore. It may be noted that the issue on the said recall of Tomali's appointment had already been the subject matter in CSC Resolution No. In its resolution of 12 March 1993. whose appointment was not approved. . petitioner could not be said to have theretofore earned a valid tenure to the same position. may only be considered as a de facto officer. disapproved the appointment 12 in consonance with Presidential Decree No. The CSC. which dismissed petitioner's appeal. a motion for reconsideration was denied in CSC Resolution No. 13 It was well within the authority and discretion of the new OMA Director. 11 this Court has said: The tolerance. 9 Until an appointment has become a completed act. wherein the Commission ruled as follows: WHEREFORE. Office on Muslim Affairs in favor of Rocaina Lucman prior to the approval by the Commission. but it was only on 31 May 1991 that it was submitted to the CSC. Tomali filed a protest against the appointment of Rocaina Lucman. (Emphasis supplied. In Favis vs. and the appointment can still be recalled or withdrawn by the appointing authority. a fact which she knew. should have known or should have at least verified considering the relatively long interval of time between the date of her appointment and the date of her assumption to office. 91-1237. the separation of Mona Tomali is declared to be in order. Petitioner herself would not appear to be all that blameless. When private respondent Lucman was thus appointed DMO II on 16 July 1991. ineffective and unenforceable. in effect. dated December 3. to appoint private respondent. She has no more personality to file a protest. allowing her in the meanwhile to assume the office in question. the CSC. 91-1463.

No. 1992 AGUSTINA G. FERNANDEZ. 1989 in CSC Case No. No special pronouncement on costs. CIVIL SERVICE COMMISSION and BAYANI I. as well as its resolution of April 10. petitioner. per Customs Personnel Order (CPO) No. Private respondent Bayani I. 93064 June 22. 1 He was assigned to the aircraft Operations Division. we see no grave abuse of discretion on the part of public respondents in their questioned dismissal of petitioner's protest. C-152-87 issued by Commissioner Salvador M. performed by an officer in whom it is vested according to his best judgment. respondents. GAYATAO. In sum. the only condition being that the appointee should possess all the qualifications required therefor. whimsical or despotic manner. the petition for certiorari is DISMISSED. EN BANC G.R. vs. On October 15. 2 .:p This special civil action for certiorari impugns the resolution promulgated on October 5. 1984 in a permanent capacity . J.The rule has always been that an appointment is essentially a discretionary act. 1987. 1990 denying petitioner motion for reconsideration. he was reassigned as Acting Chief of the Export Division at the Ninoy Aquino International Airport (NAIA) Customhouse. Mison. SO ORDERED. 14 There is nothing on record to convince us that the new OMA Director has unjustly favored private respondent nor has exercised his power of appointment in an arbitrary. WHEREFORE. REGALADO. Fernandez was holding the position of Customs Operations Chief I (COC) in the Bureau of Customs since March 5. 418 of respondent Civil Service Commission revoking the appointment of petitioner as Customs Operations Chief of the Export Division at the Ninoy Aquino International Airport and directing the Commissioner of Customs to appoint private respondent in her stead.

with the parties filing their respective memoranda. both designations being effective March 1. . Public respondent CSC filed its comment to the petition on August 27. 1991 13 and subsequently amplified on October 18. Gayatao as Customs Operations Chief is hereby revoked. 12 we required respondent CSC to comment on the manifestation in lieu of comment filed by the Solicitor General. 1990 11 After some preliminary pleadings and exchanges. in CPO No. 1991 with a supplemental comment . 1988 3 Thereafter. 1988. at having been done pursuant to Executive Order No 127. the Commissioner. 15 the last of which was filed by the Solicitor General on February 12. on September 25. . In our resolution of November 6. effective March 1. B-27-88 dated March 3. and (2) he is more qualified than herein petitioner. In assailing the action of the appointing authority. 7 On October 30. purportedly acting pursuant to Executive Order No. Commission Mison. private respondent filed a letter of protest on May 18. Bureau of Customs is hereby directed to appoint appellant Fernandez in her stead. 1990. 1987. the appointment of appellee Atty. 1992.On February 15. 1991. to the position of Customs Operations Chief at the NAIA Customhouse. with the following dispositive portion: WHEREFORE. 1989. petitioner filed the instant petition for certiorari with prayer for preliminary injunction. Bureau of Customs. 1990. 1988. . then a Supervising Customs Trade Examiner. 9 Disagreeing with the aforementioned resolutions. premises considered. recommending the grant of the petition and the annulment of the questioned resolutions of public respondent. appointed petitioner Agustina G Gayatao. 1990 the Solicitor General filed a manifestation in lieu of comment. 5 Commenting thereon in an undated 4th Indorsement. the Commissioner of Customs alleged that the aforestated appointment of petitioner is "non-protestable.14 On November 12. 4 Aggrieved by the actions of said commissioner. 6 On October 5. petitioner filed a request for reconsideration of the questioned resolution. while private respondent was designated as Customs Operations Assistant Chief (COAC) of the Aircraft Operations Division. 8 but the same was denied by the CSC in its resolution dated April 10. petitioner was designated as COC of the Export Division at NAIA. private respondent alleged in substance that (1) he was unjustifiably demoted since he had been holding the contested position prior to the reorganization. 127 implementing the reorganization of the Department of Finance. Accordingly.1988 before the Merit System Protection Board of respondent Civil Service Commission (CSC) questioning the appointment of petitioner as COC and his demotion to the position of COAC. . which it did on October 15. we resolved to give due course to the petition. respondent commission promulgated the challenged resolution mentioned at the start of this opinion. 1990 10 while private respondent Fernandez did likewise on August 23. 1988.

The doctrine laid down in he cited case finds no determinant application in the case at bar. The Commission finds no sufficient justifiable reason for this demotion The appointing authority cannot entirely disregard the rule on equity of the incumbent and justify demotion in the guise of reorganization. ruled: While it has been held that the right to select and appoint employees is the prerogative of the employer. Records will show that prior to the reorganization. in good faith for the advancement of the employer's interest. this may be availed of without liability. vs. appellant was already holding the position of Customs Operations Chief I since March 1984. . We quote the pertinent portion of said resolution: After a careful perusal of the records of the case. the authority of the CSC is limited to approving or renewing an appointment in the light of the requisites of the law governing the civil service. The advertence of the CSC to the fact that private respondent is better qualified than petitioner was merely to lend further support to its stand that the removal of private respondent was unlawful and tainted with bad faith and that his reinstatement to his former position is imperative and justified. oppressive. The Supreme Court in the case of GSIS vs Ayroso (96 SCRA 213). if such demotion will amount to a penalty without justifiable ground or will result in deprivation of due process on the part of the employee concerned. Although the appointing authority is afforded wide latitude in the selection and appointment of employee(s). and provided further that such prerogative(s) are not exercised in a malicious. in the words of Justice Juvenal K. et al. It will be in excess of its power if it substitutes its will for that of the appointing authority. His reappointment to the position of Customs Operation Assistant Chief is therefore a clear demotion of rank and position. the Commission finds the appeal meritorious. for that would constitute an encroachment on the discretion vested solely in the appointing authority. The CSC has no authority to revoke an appointment on the ground that another person is more qualified for a particular position. Civil Service Commission. vindictive or wanton manner.The focal issue raised for resolution in this petition is whether respondent commission committed grave abuse of discretion in revoking the appointment of petitioner and ordering the appointment of private respondent in her place. or out of malice or spite. In support of said contention. Guerrero. provided this is exercised. harsh. 807). The CSC not being the "appointing power" in contemplation of law.. and not for the purpose of defeating or circumventing the rights of the employees under special laws or under valid agreements. such exercise is however not absolute. et al. 16 where we ruled that under the Civil Service Decree (Presidential Decree No. Petitioner takes the position that public respondent has no authority to revoke her appointment on the ground that another person is more qualified. A reading of the questioned resolution of respondent commission readily shows that the revocation of the appointment of petitioner was based primarily on its finding that the said appointment was null and void by reason of the fact that it resulted in the demotion of private respondent without lawful cause in violation of the latter's security of tenure. cannot direct the appointment of a substitute of its choice We have no quarrel with the validity of the aforesaid doctrines but we cannot sustain petitioner's theory and submissions in this case premised on said doctrinal rules. petitioner cites the case of Central Bank of the Philippines.

Civil Service Commission. any reorganization undertaken by the Government must be guided and circumscribed by the safeguards and provisions of the said Constitution and the statutes' governing reorganization.. and its companion cases. et al. after finding that the demotion was patently illegal. private respondent herein. As earlier noted. he was an "Assistant Custom" Operations Chief since 1977.. We find no reason to disturb the findings and conclusions of the CSC that respondent Bayani I. Further. Upon the effectivity of the 1987 Constitution. We ruled that the CSC has no authority to revoke an appointment simply because it (CSC) believed that another person is better qualified than the appointee for it would constitute an encroachment on the discretion solely vested on the appointing authority. In the cases cited above. It merely restored the appointment of private respondent who was first appointed to the contested position. The CSC. Fernandez was illegally demoted. it was ruled that: We have consistently applied the above doctrine in many cases with similar factual circumstances. was appointed in his stead. records will further show that appellant is more qualified than appellee because aside from being the incumbent Customs Operations Chief prior to the reorganization. What happened was that another person. as in the instant case. therefore. is undubitably in the performance of its constitutional task of protecting and strengthening the civil service. private respondent was holding the position of Customs Operations Chief in a permanent capacity since 1984. private respondent was already holding said position when he was unlawfully demoted The CSC. the issuance by the CSC of the questioned resolutions. Such fact is a clear indication of . for the reasons clearly explained therein. petitioner herein. is merely restoring private respondent to his former position. In the present case. His nonreappointment to that position amounts to a removal without cause from an office which has not been abolished nor reorganized. His experience in the area of Customs Operations are more than sufficient to qualify him for reappointment to the contested position. 18 It is within the power of public respondent to order the reinstatement of government employees who have been unlawfully dismissed. 21 In the instant case. where the CSC revoked the appointment of the successful protestant.Finally. as the central personnel agency. 19 wherein similar issues were raised. The position of private respondent as COC of the Export Division was not abolished with the reorganization of the Bureau of Customs. principally because the right to security of tenure of the prior appointee. The situation is different. in the said resolution the CSC is not actually directing the appointment of private respondent but simply ordering his reinstatement to the contested position being the first appointee thereto. to the contested position had already attached. the guidelines and standards provided in those laws were not observed. 20 removal from office as a result of reorganization must pass the test of good faith. herein petitioner who is lower in rank. has the obligation to implement and safeguard the constitutional provisions on security of tenure and due process. but We see no compelling reason to apply the same in the instant case. It must be noted that public respondent CSC did not direct the appointment of a substitute of its choice. In the recent case of Aquino vs. 17 Clearly. Mison. et al. just as it must restore other employees similarly affected to their positions before the reorganization. As we stressed in Dario vs.

is of no moment. 6655 entitles a victim of removal in violation of the bona fide rule to a reinstatement or reappointment to the position from which he was removed. or in the Planning and Research Service. he was. may he appointed to on office which is not yet vacant. In the first place. 24 The argument of petitioner that the questioned resolution of respondent CSC will have the effect of her dismissal without cause from government service. his promotion was not valid. The fact that there is now an appointee to the position he claims. 27 The present Constitution does not provide for automatic vacancies. Hence. xxx xxx xxx Section 2 of Republic Act No. if it is not part of any disciplinary action. petitioner cannot claim any right to the contested position. and other persons were reappointed to the positions. She should be returned to where she came from or to given another equivalent item. A demotion in office by assigning an employee to a lower position on the same service is tantamount to removal. 23 The observance of the rules on bona fide abolition of public office is essential before terminations and/or demotions from employment in the government service can be made. holding an appointment signed by the President. suspended or demoted except for cause" provided by law. 6656. No vacancy having legally been created by the illegal dismissal no appointment may be validly made to that position and the new appointee has no right whatsoever to that office. is devoid of legal support and logical basis. therefore. when Floreza was not reappointed as Revenue Service Chief or as Assistant Commissioner either in the Legal Service. 25 No person. since she is already an appointee to the position which private respondent claims. to repeat. Article XVIII thereof must be those resulting from reorganization and which. The incumbent must have been lawfully removed or his appointment validly terminated. 28 We reiterate what we said in the above-cited case of Floreza: We apply the ruling in Dario vs. if no cause is shown for it. 22 As a civil service employee with a permanent appointment. Private respondent cannot be removed. any reorganization undertaken by the government is circumscribed by the provisions and safeguards of the New Constitution. in effect dismissed from the service in violation not only of his right to security of tenure but to due process as well. removals "not for cause" contemplated in Section 16. There was no vacancy in the office to which Jaime M. 26 since an appointment to an office which is not vacant is null and ab initio. It should be remembered that after February 2. Masa was appointed and. We hold that Floreza was deprived of his right to security of tenure by his non-appointment to the position of Revenue Service Chief or its new title under the reorganized Bureau of Internal Revenue. more so. Private respondent's appointment to the lower position of COAC is a clear demotion in rank without no valid cause and without being heard thereon.bad faith which would entitle herein private respondent to reinstatement pursuant to Section 9 of Republic Act No. Mison and Section 2 of Republic Act 6656 to this position. 1987. must pass the test of good faith. no matter how qualified and eligible for a certain position. .

or abolition thereof by reason of economy or redundancy of functions. in the sense.R. provided this is done in good faith for the best interests of the service or for valid cause.The argument of the Solicitor General that private respondent's assignment as COC of the Export Division at NAIA was only in an acting capacity is unavailing. 31 nonetheless his reassignment as Acting Chief of the Export Division at NAIA does not make his appointment as Customs Operation Chief I temporary and revocable at the pleasure of the appointing power. of reduction of personnel. the petition at bar is DISMISSED and the questioned resolutions of respondent Civil Service Commission are hereby AFFIRMED. While it is true that an acting appointment is merely temporary and revocable at the pleasure of the appointing power. 32 On the foregoing consideration. It is also worthy of note that the order for the reinstatement of private respondent is in consonance with our ruling in Dario vs. 29 this temporary appointment cannot be used by the appointing authority as an argument or justification in order to evade or avoid the security of tenure principle in the Constitution and the Civil Service Law. HONORABLE COURT OF APPEALS (SIXTEENTH DIVISION) and JUANITO ALVARADO. Mison. 1997] CARLITO D. consolidation of offices. ante. say. There can therefore be no actual reorganization to speak of. that there was lack of good faith in the reorganization of the Bureau of Customs. respondents. 117005. generally he may be assigned anywhere as the exigencies of the service may require. CORPUZ. SO ORDERED. SECOND DIVISION [G. for that matter — at the Bureau since Commissioner Mison assumed office. June 19. Apropos to the present case is this trenchant observation therein: "There is no showing that legitimate structural changes have been made — or a reorganization actually undertaken. which would have validly prompted him to hire and fire employees. private respondent must be restored to his former position as Chief of the Export Division at NAIA without prejudice to the power of the Commissioner of Customs to reassign him to any other division as the exigencies of the service may require. He cannot be arbitrarily removed from a particular division without reassigning him to another division nor can he be appointed to a lower position without cause and without notice and hearing The appointing power cannot use the device of an ambiguous designation to go around the security of tenure of a permanent employee. . but a revamp of personnel pure and simple. vs. No. 30 Although it is true that the appointment of private respondent Fernandez as COC is without any particular or fixed station and." 33 WHEREFORE. petitioner.

and whether the "Affidavit of Waiver" between Corpuz and Barredo was authentic. prompting Corpuz to seek his ejectment. Branch 6.00. docketed as Civil Case No. and (2) the dispute was not referred to the Lupong Tagapayapa. in May 1988. 1994. it ordered the dismissal of the case for unlawful detainer. Corpuz maintains that the mere assertion challenging his ownership over the . Consequently. a tenancy relationship was established between Corpuz and Alvarado. Corpuz sent a written notice to Alvarado demanding that he vacate the room which he was occupying because the children of Corpuz needed it for their own use. decided to sell his property to the tenants. J. It also concluded that the "Affidavit of Waiver" executed by Alvarado and Barredo was a forgery. for recovery of possession of the room being occupied by the latter. Alvarado and the other lessees executed an "Affidavit of Waiver" granting Barredo the right to sell his house to any person who can afford to purchase the same. reversed the MTC's decision on the ground that the purported sale between Corpuz and Barredo was the subject of a controversy pending before the National Housing Authority (NHA) which must be resolved first by said agency. 138532. this petition. Barredo sold his house to Corpuz for P37. Corpuz filed an action for unlawful detainer against private respondent Juanito Alvarado with the Metropolitan Trial Court of Manila. dismissing the petition for review in Civil Case No. Alvarado appealed to the RTC. the MTC of Manila handed down on August 11. to wit: (1) the alleged "Affidavit of Waiver" executed between him and Barredo was a forgery.[5] A subsequent motion for reconsideration was likewise denied by the Court of Appeals in its resolution dated September 1. 9262869.: Petitioner Carlito Corpuz questions the decision of the Court of Appeals[1] affirming the decision of the Regional Trial Court of Manila. said court rendered its decision[3] which.[6] Hence. Consequently. On March 11. In October 1991. In his answer. The main issues presented in this petition is whether Corpuz' unlawful detainer suit filed before the MTC against Alvarado should be suspended until the resolution of the case lodged in the NHA impugning the sale of said property. Finding the defenses of Alvarado to be without merit. His motion for reconsideration of said decision having been denied for lack of merit by the RTC[4] on July 16. Corpuz elevated his case to the Court of Appeals. As a result of the sale.[2] Feeling aggrieved. 1993. Branch 10. Alvarado refused to vacate the room as demanded. 1993. 1992 a decision ordering Alvarado to vacate the room.500. which Corpuz' children allegedly needed for their own use.DECISION ROMERO. The appellate court. 1994. however. Alvarado and Corpuz were two of the tenants of a certain Lorenzo Barredo who. Alvarado raised two major defenses. Due to economic difficulties. however. and ruled that Alvarado cannot be legally expelled from the subject premises. in effect. found no reversible error in the assailed judgment and affirmed the same in its entirety in its assailed decision dated July 14.

which is summary in nature. held that the inferior court may look into the evidence of title or ownership and possession de jure insofar as said evidence would indicate or determine the nature of possession." Clearly. in making a distinction between the reception of evidence and the resolution of the issue of ownership. CA [annulment of title]. the only issue to be resolved in forcible entry and unlawful detainer cases is the physical or material possession over the real property.[10] however. title or document do not abate any ejectment action respecting the same property. 170 SCRA 758 [1989].[8] As the law now stands. 126 SCRA 167 [1983]. Inc. this Court. however. Parenthetically speaking.[11] In Wilmor Auto Supply Construction Company Corporations. the controversy pending before the NHA for the annulment of the Deed of Sale and assailing the authenticity of the "Affidavit of Joint Waiver" cannot deter the MTC from taking cognizance of the ejectment suit merely for the purpose of determining who has a better possessory right among the parties. that is. RTC [annulment of sale and title].. resolve the issue of ownership. to wit: "Neither do suits for annulment of sale. or document affecting property operate to abate ejectment actions respecting the same property (Salinas v. 177 SCRA 288 [1989]. because the resolution of said issue would effect an adjudication on ownership which is not sanctioned in the summary action for unlawful detainer. Ang Ping v. .[7] The petition is impressed with merit. Caparros v. v. the issue raised in this petition is far from novel. It cannot. Navarro [annulment of deed of sale with assumption of mortgage and/or to declare the same an equitable mortgage]. the controversy pending in the NHA). 154 SCRA 153 [1987]." Consequently. that is. Dante v. the underlying reason for the above rulings is for the defendant not to trifle with the ejectment suit. 129. Benguet Consolidated. or title. et al. since the present petition involves the issue of possession intertwined with the issue of ownership (i.said property is not a sufficient ground to divest the MTC of its exclusive jurisdiction. [annulment of document]. Sison [annulment of sale with damages].[12] Justice (now Chief Justice) Andres Narvasa outlined the following cases involving the annulment of the title or document over the property which should not be considered in the abatement of an ejectment suit. we ruled that: "In the case of De la Santa vs. Thus.e.[9] In the recent case of Refugia v. the doctrinal pronouncement in Refugia is applicable. possession de facto. 174 SCRA 517. The prevailing doctrine is that suits or actions for the annulment of sale.. Court of Appeals. by the simple expedient of asserting ownership thereon. Court of Appeals. Galgala v. it may be suggested that inferior courts are now conditionally vested with adjudicatory power over the issue of title or ownership raised by the parties in an ejectment suit. Court of Appeals. With this as a premise and taking into consideration the amendment introduced by Batas Pambansa Blg. by declaring who among the parties is the true and lawful owner of the subject property. et al. It is elementary that the MTC has exclusive jurisdiction over ejectment cases.

is hereby REINSTATED. Alvarado raises the issue in the instant petition that the ejectment suit was not referred to the Lupon Tagapayapa as required by Presidential Decree No. 1508 is not a jurisdictional requirement and noncompliance therewith cannot affect the jurisdiction which the lower court had already acquired over the subject matter and the parties therein.R. WHEREFORE. 1994. 1992. J. SP-No. JR. We have held in Dui v. vs. which is deemed a mere general averment.R. CORPUZ. January 26. The assailed decision dated July 14. Court of Appeals[14] that failure of a party to specifically allege the fact that there was no compliance with the Barangay conciliation procedure constitutes a waiver of that defense. SO ORDERED.. and MOVIE AND TELEVISION REVIEW ANDCLASSIFICATION BOARD. Branch 6. David Corpuz (hereafter CORPUZ) asks us to set aside the 13 October 1995 decision of the Court of Appeals in CA-G. This defense was only stated in a single general short sentence in Alvarado's answer. 37694 [1] which reversed Resolution No. 1508. DAVID B.: Petitioner Atty. FIRST DIVISION [G. respondents. in Civil Case No. 138532-CV dated August 11. A perusal of Alvarado's answer reveals that no reason or explanation was given to support his allegation.It may be stressed that Alvarado is not without remedy. and the judgment of the Metropolitan Trial Court. the decision of the Court of Appeals and the Resolution of the CSC disclose the following facts: . In any event. We have ruled that a judgment rendered in an ejectment case shall not bar an action between the same parties respecting title to the land or building nor shall it be conclusive as to the facts therein found in a case between the same parties upon a different cause of action involving possession. Manila. DECISION DAVIDE.D. No. the proceeding outlined in P. of respondent Court of Appeals is hereby REVERSED and SET ASIDE. 123989. petitioner. The pleadings of the parties. the instant petition is GRANTED.[13] Furthermore. COURT OF APPEALS. 93-5964 of the Civil Service Commission (CSC). 1998] ATTY. We are not persuaded.[2] the latter declaring that petitioner’s separation from the service as Attorney V in the Movie Television Review Board (MTRCB) was not in order and directed that he be automatically restored to his position.

IT IS FURTHER RESOLVED. It appears. within a period of ONE MONTH from the approval of this Resolution. Henrietta S. 8-1-91. CORPUZ was appointed as the MTRCB’s legal Counsel -. while Resolution No. and later.[6] It thus declared: FOR ALL OF THE FOREGOING. 8-1-91 as he was then on leave. 10-2-91. in Session Assembled. was approved by the MTRCB en banc on 9 October 1991. in violation of Section 5 of P. 8-1-91 was filed in his office on 1 August 1991. and in order not to disrupt the workings and functions of this Board while this body is awaiting for [sic] the recommendation of the appointments of the old and or new appointees. CORPUZ’ duties included “attendance in Board meetings” pursuant to then Chairman Morato’s memorandum of 11 September 1987.D. As certified by MTRCB Secretary Vicente G. At the MTRCB meeting of 19 January 1993. Mendez was appointed MTRCB Chairman. the MTRCB passed MTRCB Resolution No. including the category of the position for which the appointees [are] recommended.[7] Resolution No. was found in the records. the appointment of all or some of the present administrative and subordinate employees of this Board. Subsequently. that the Chairman recommend to this Board. P.Prosecutor and Investigation Services (Supervising Legal Staff Officer). however. As MTRCB Legal Counsel.On 18 July 1986. 876-A. No copy of Resolution No. the present administrative and subordinate employees shall hold on [to] their position[s] in an [sic] holdover capacity. CORPUZ was unaware of the promulgation of Resolution No. new members of the Board were likewise appointed with Mendez assuming office in August 1992. 8-1-91[5] entitled “An Act To Declare The Appointments Of The Administrative And Subordinate Employees Of This Board As Null And Void. No.D. 1986. Regional Director Benita Santos of the CSC-National Capital Region. discretion and preference. 10-2-91. hereby declare[s] that ALL the appointments of the present administrative and subordinate employees of this Board suffers [sic] from illegality and therefore [are] considered invalid and of no value and effect ab initio. This announcement invited the submission of any information concerning the appointments involved therein to the Committee. The Resolution was likewise kept secret and it was only on 12 March 1993 that an announcement[8] of its contents was posted by an Ad Hoc Committee on the MTRCB bulletin board. or new ones. No. that nothing was immediately done to implement Resolution No. Mendez was informed about Resolution No.[4] Sometime in August 1991. Sales.” This undated resolution noted that the past and present Chairmen of the MTRCB had failed to submit for approval the appointments of administrative and subordinate employees to the MTRCB before forwarding them to the CSC. An Ad Hoc Committee composed of MTRCB members was then constituted to look into . CORPUZ’ position was designated Attorney V under the Salary Standardization Law. however. IT IS THEREFORE RESOLVED. that in the interregnum. On 14 July 1992. 81-91. at his initiative. AS IT IS HEREBY RESOLVED BY THIS BOARD. a mere reiteration of Resolution No. this Board. Thereafter.[3] The appointment was approved by Asst. 8-191.

On 27 July 1993. Corpuz. All the appointments signed by Mr. the Committee resolved to recommend to the MTRCB the approval of the appointments. In the meantime. Mendez informed CORPUZ that at the MTRCB regular meeting of 25 June 1993. he is automatically restored to his position of Atty. V with payment of back salaries. On 31 August 1993. Corpuz can no longer be separated from the service except for cause and after observing the requirements of due process. the Commission hereby resolves to rule that the separation of Mr. specifically on 22 August 1994. hence to cure the defect. Hence.the appointments extended by former Chairman Morato. The MTRCB’s motion for reconsideration was denied by the CSC in Resolution No. David Corpuz from the service is not in order. the Commission can not allow the current Board’s disapproval of the said appointment to produce any effect. as follows: It must be appreciated that the appointment of Atty. except that of CORPUZ and seven others. Morato in his capacity as MTRCB Chairman are presumed to have been made after complying with all the legal requirements including the Board approval. 93-5964[11] dated 23 December 1993. could have been the subject of a direct action for revocation or recall which may be brought to the Commission within a reasonable period of time after its approval… Since no such action was filed with the Commission. foregoing premises considered. WHEREFORE. In a Memorandum[9] dated 28 June 1993. The Committee then posted on the MTRCB bulletin board the 12 March 1993 announcement mentioned above. she submitted the appointments to the MTRCB. Thereafter. whether express or implied.[13] . then Chairman of [the] MTRCB and the duly authorized signatory of MTRCB appointments. In her comment to the complaint. the CSC promulgated Resolution No. we can safely state that Corpuz had already acquired security of tenure in the said position. No. Accordingly. as well as the qualifications of the appointees. CORPUZ and one Larry Rigor filed a complaint with the CSC requesting a formal investigation and hearing.D. 942551[12] dated 20 June 1994. Mendez stated that she discovered that the appointments extended by Morato were not submitted to the MTRCB for approval pursuant to Section 5(c) of P. 93-3509 granting the MTRCB authority to fill up positions vacated in the agency due to appointments which were not submitted to the MTRCB for approval. Corpuz was approved by the Commission because it was signed by Mr. 1986.[10] However. Atty. The appointment of Atty. None of the parties attached to their pleadings a copy of the MTRCB Resolution disapproving the appointment. if defective. CORPUZ became a permanent employee of the Ombudsman. the CSC ruled in favor of CORPUZ. Manuel Morato. in Resolution No. his appointment was disapproved effective 30 June 1993.

Section 16.The MTRCB filed with us a special civil action for certiorari which we referred to the Court of Appeals in view of Republic Act No. In the aforecited case. it held: “Compliance with the legal requirements for an appointment to a civil service position is essential in order to make it fully effective (Favis vs. specifically provides as follows: “Section 16. ineffective . In its decision. the Court of Appeals held: Presidential Decree No. and the appointment can still be recalled or withdrawn by the appointing authority (Grospe vs. on the necessity of the approval of the Commissioner on Civil Service of appointments. Until an appointment has become a completed act. It shall appoint the Secretary of the Board who shall be the official custodian of the records of the meetings of the Board and who shall perform such other duties and functions as directed by the Board.” (Underscoring supplied) The record shows that the appointment of respondent Atty. in cases when such an approval is required. Personnel. 93-5964 of the CSC. 208 SCRA 240. SP No. no title to the office can yet be deemed to be permanent. Suarez vs. Secretary of Public Works and Communication.[14] The Court of Appeals then docketed the case as CA-G. the same cannot be considered as [a] valid appointment. he cannot invoke security of tenure. 7902. Mitra vs. 105 Phil. ruling that since the appointment of CORPUZ was not approved by the MTRCB. vested in favor of the appointee. Subido. David Corpuz was not approved by the Board. Villanueva vs. Organization Patterns. Commission on Elections. In Tomali vs. acquiescence or mistake of the proper officials. 1986. the Supreme Court restated the existing jurisprudence on the matter. In support of its ruling. 1986. it would likewise be precipitate to invoke the rule of security of tenure (See Aquino vs. Corpuz’ appointment was not approved by the Board. 20 SCRA 797). 21 SCRA 797). Civil Service Commission (238 SCRA 572). Civil Service Commission. Rupisan. Neither would the silence or the failure of the Board to recall the private respondent’s appointment constitute as a [sic] consent or confirmation. thus: “The tolerance. even if he has rendered service for a number of years. -.The Board shall determine its organizational structure and staffing pattern. 37694.R. 9 SCRA 407. in a similar case has reiterated the importance of complying with legal requirements for a valid appointment. cited in Mitra vs. the Court of Appeals declared null and void Resolution No. the law creating the Movie and Television Review and Classification Board. 17 SCRA 190. Balallo. Without the favorable certification or approval of the Commission. It shall have the power to suspend or dismiss for cause any employee and/or approve or disapprove the appointment. 21 SCRA 127). transfer or detail of employees. Subido. As such. resulting in the nonobservance of the pertinent rules on the matter does not render the legal requirement. The Supreme Court. as mandated by Presidential Decree No. the appointment was invalid and he could not invoke security of tenure.” It appearing that respondent Atty. 129.

Corpuz ceased when he was not properly appointed under present law. awards. Section 16 thereof. whose appointment was not approved. Rupisan. rules and regulations issued by the BOARD. No. the MTRCB is composed of a Chairman. His motion for reconsideration having been denied in the Resolution [15] of 13 February 1996. The employee. implement and enforce the decisions. he cannot be reinstated.D. David Corpuz did not acquire a vested right nor does he presently enjoy a [sic] security of tenure to the subject position in the MTRCB for failure to comply with the legal requirements needed for a valid appointment. Civil Service Commission. In his Memorandum. CORPUZ explicitly declared that he “is no longer seeking reinstatement with respondent MTRCB but for the continuity of his government service from the time he was illegally dismissed on 30 June 1993 up to the time he was permanently employed with the Office of the Ombudsman on 22 August 1994 plus back salaries and other benefits due him if not for the illegal dismissal. vests upon the Board itself the power to. however. orders. IS TANTAMOUNT TO A VIOLATION OF HIS CONSTITUTIONAL RIGHTS TO SECURITY OF TENURE.” (Tomali vs.” [16] Pursuant to Section 2 of P. CORPUZ DID NOT HAVE THE APPROVAL OF THE MTRCB BOARD WHICH IF NOT CORRECTED. Hence. supra citing Favis vs. and (d) Exercise such other powers and functions and perform such duties as are not specifically lodged in the BOARD. 17 SCRA 190. powers and duties of the Chairman as the Chief Executive Officer of the MTRCB. Not being a permanent employee of the Movie and Television Review and Classification Board. . and recommend to the BOARD the appointment of the necessary administrative and subordinate personnel. to wit: (a) Execute. We find merit in petitioner’s contention that respondent Atty.and unenforceable. quoted in the challenged decision of the Court of Appeals. On the other hand. a ViceChairman and thirty (30) members. (c) Establish the internal organization and administrative procedures of the BOARD. 191) Thus. all appointed by the President of the Philippines. DAVID B. may only be considered as a de facto officer. (b) Direct and supervise the operations and the internal affairs of the BOARD. 1986. inter alia. Section 5 thereof enumerates the following functions. the tenure of respondent Atty. CORPUZ filed the instant petition under Rule 45 of the Rules of Court and asked us to reverse the challenged decision of the Court of Appeals on the sole ground that: THE COURT OF APPEALS ERRED IN RULING THAT THE APPOINTMENT OF PETITIONER ATTY. approve or disapprove the appointments of its personnel.

Taboy v. .R. 807 and Section 11. SP-No. assumed office and performed the functions and duties thereof is of no moment. Presiding Judge of Cebu Court of First Instance[20] where the appointments of subject employees were disapproved by the Provincial Boards pursuant to the powers granted them. This Court so declared in Favis v. the instant petition is DENIED and the assailed decision of 13 October 1995 of the Court of Appeals in CA-G. namely: (a) recommendation by the Chairman which is accomplished by the signing of the appointment paper.37694 is AFFIRMED.D. under the facts here. his appointment ceased to have effect. the appointee can claim no vested right in the office nor invoke security of tenure. however. Hence. The tolerance. and (b) approval or disapproval by the MTRCB of the appointment.It is thus clear that there are two stages in the process of appointing MTRCB personnel. viz. and his services were properly terminated. and the appointee has been determined upon. which is among his powers under Section 5(d) above. the commission. was not obtained. where the required submission to and approval by the Civil Service Commission were not made as required by Section 9(h) of P. and the formal evidence of the appointment. for it matters not that the appointee had served for several years. in the case of CORPUZ. other than its Secretary. Civil Service Commission. Rupisan[18] where the appointment involved was not approved by the Civil Service Commission pursuant to Section 16(h) of R. Court of Appeals[19] and Provincial Board of Cebu v. CORPUZ was such a de facto officer. [23] A public official or employee who assumed office under an incomplete appointment is merely a de facto officer for the duration of his occupancy of the office for the reason that he assumed office under color of a known appointment which is void by reason of some defect or irregularity in its exercise. No. the commission can issue or the appointment may be complete only when such assent or confirmation is obtained. WHEREFORE. since the last act required for the completion of his appointment. Court of Appeals [21] where the required consent of the municipal council in the appointment of the chief of police was not obtained. It is long settled in the law of public offices and officers that where the power of appointment is absolute.. no further consent or approval is necessary. In either case. the assent or confirmation of some other officer or body is required.[24] Undeniably. [17] Until the process is completed.[22] which the Court of Appeals relied upon. this Court held that compliance with the legal requirements for an appointment to a civil service position is essential to make it fully effective. in fact. Where. it is the MTRCB itself that is empowered to appoint said official pursuant to Section 16. Rule V of the Omnibus Rules Implementing Book V of Executive Order No. the appointment becomes complete when the last act required of the appointing power is performed. as a matter of fact. acquiescence or mistake of the proper officials resulting in non-observance of the requirements of law or rules to complete the appointment does not render the requirements ineffective and unenforceable. No. otherwise known as the Administrative Code of 1987. 292. approval by the MTRCB itself. Costs against petitioner. 2260 and Section 2(a) of Rule VI of the Civil Service Rules implementing said law. As to the Secretary. may issue at once. Those years of service cannot substitute for the want of consent of another body required by law to complete the appointment. and in Tomali v. the MTRCB ultimately disapproved it. in Carillo v. That the employee involved had.A. if at all. In the latter.

Corpuz v. Mendez was appointed MTRCB Chairman. however. The Resolution was likewise keptsecret and it was only on 12 March 1993 that an announcement of its contents was posted by anAd Hoc Committee on the MTRCB bulletin board. CSC ruled in favor of Corpuz and ordered hisreinstatement and payment of backwages.On 27 July 1993. As certified by MTRCB Secretary Vicente G. 8-1-91 as he was then on leave." This undated resolution noted that the past and present Chairmen of the MTRCB had failedto submit for approval the appointments of administrative and subordinate employees to theMTRCB before forwarding them to the CSC. Sometime in August1 9 9 1 . t h e M T R C B passed MTRCB Resolution No. 8-1-91.D. 8-1-91. his appointment was disapproved effective 30 June 1993. An Ad Hoc Committee composed of MTRCB members was then constituted to look into thea p p o i n t m e n t s e x t e n d e d b y f o r m e r C h a i r m a n M o r a t o . The appointment wasa p p r o v e d b y A s s t . M e n d e z i n f o r m e d C o r p u z t h a t a t t h e M T R C B regular meeting of 25 June 1993. It thus declared that ALL the appointments of the present administrative andsubordinate employees of this Board suffered from illegality and therefore are considered invalidand of no value and effect ab initio.On 31 August 1993. 1 0 . new members of the Board were likewise appointed with Mendez assuming office in August 1992. R e g i o n a l D i r e c t o r B e n i t a S a n t o s o f t h e C S C . On 14 July1992. Mendez stated that shediscovered that the appointments extended by Morato were not submitted to the MTRCB for approval pursuant to Section 5(c) of P.P. Nocopy of Resolution No. 8-1-91 entitled "An Act To Declare T h e Appointments Of The Administrative And Subordinate Employees Of This Board As Null AndVoid. MTRCB's MR was denied by CSC. the CSC promulgated Resolution No. the Committee resolved to recommend to the MTRCB the approval of the appointments. 8 . in violation of Section 5 of P. w h i l e R e s o l u t i o n N o .9 1 .SO ORDERED. 876-A. However. No. Subsequently. Thereafter. Thereafter. except that of Corpuz and seven others.D. a s well as the qualifications of theappointees. a m e r e reiteration of Resolution No. 10-2-91.however. CAFacts:O n 1 8 J u l y 1 9 8 6 . It appears. No. 8-1-91. . Mendez was informed about Resolution No. she submitted theappointments to the MTRCB. 1986. Henrietta S.N a t i o n a l C a p i t a l R e g i o n . The Committee then posted on the M T R C B b u l l e t i n b o a r d t h e 1 2 M a r c h 1 9 9 3 announcement mentioned above.9 1 w a s f i l e d i n h i s o f f i c e o n 1 A u g u s t 1 9 9 1 .2 . Sales. was found in the records. Corpuz and one Larry Rigor filed a complaint with the CSC requesting aformal investigation and hearing. CORPUZ' position was designated Attorney V under the Salary Standardization L a w . that nothing was immediately done to implement Resolution No. In her comment to the complaint. Corpuz was unaware of thepromulgation of Resolution No.I n a M e m o r a n d u m d a t e d 2 8 J u n e 1 9 9 3 . 93-3509 granting the MTRCB a u t h o r i t y t o fill up positions vacated in the agency due to appointments which were n o t submitted to the MTRCB for approval. C o r p u z ' s d u t i e s i n c l u d e d " a t t e n d a n c e i n B o a r d m e e t i n g s " pursuant to then Chairman Morato's memorandum of 11 September 1987. hence to cure the defect. No.At the MTRCB meeting of 19 January 1993. Noneof the parties attached to their pleadings a copy of the MTRCB Resolution disapproving the appointment. was approved by the MTRCB en banc on 9 October 1991. 1986. A s M T R C B L e g a l C o u n s e l .D. A t t y .1 . D a v i d C o r p u z w a s a p p o i n t e d a s t h e M T R C B ' s l e g a l C o u n s e l — Prosecutor and Investigation Services (Supervising Legal Staff Officer). and later. ResolutionN o . This announcement invited the submission of any information concerning the appointments involved therein to the Committee.

which the Court of Appeals relied upon. That the employee involved had. TheMTRCB filed with us a special civil action for certiorari which we referred to the Court of Appealsin view of Republic Act No. The tolerance. This Court so declared in Favis v.I t i s l o n g s e t t l e d i n t h e l a w o f p u b l i c o f f i c e s a n d o f f i c e r s t h a t w h e r e t h e p o w e r o f appointment is absolute. in fact. Rupisan where the appointment involved was not approved by theCivil Service Commission pursuant to Section 16(h) of R. 93-5964 of the CSC. and (b) approvalor disapproval by the MTRCB of the appointment. Rule V of the Omnibus Rules Implementing Book V of Executive Order No. was not obtained. There are two stages in the process of appointing MTRCB personnel. Those years of service cannot substitute for the want of consent of another body requiredby law to complete the appointment. and in Tomali v.specifically on 22 August 1994.t h e c o m m i s s i o n c a n i s s u e o r t h e a p p o i n t m e n t m a y b e c o m p l e t e o n l y w h e n s u c h a s s e n t o r confirmation is obtained. namely: (a) recommendation by the Chairman which is accomplished by the signing of the appointment paper. where the required submission to and approval by theCivil Service Commission were not made as required by Section 9(h) of P.A public official or employee who assumed office under an incomplete appointment ismerely a de facto officer for the duration of his occupancy of the office for the reason that heassumed office under color of a known appointment which is void by reason of some defect orirregularity in its exercise. otherwiseknown as the Administrative Code of 1987. Civil Service Commission. the assent or confirmation of some other officer or body is required. As to the Secretary. this Court held that compliance with thelegal requirements for an appointment to a civil service position is essential to make it fullyeffective. as a matter of fact. and the appointee has been determined upon.. the appointment becomes complete when the last actrequired of the appointing power is performed.A. H e n c e . C o u r t o f A p p e a l s w h e r e t h e r e q u i r e d c o n s e n t o f t h e m u n i c i p a l c o u n c i l i n t h e appointment of the chief of police was not obtained. hisappointment ceased to have effect. the appointeec a n c l a i m n o v e s t e d r i g h t i n t h e o f f i c e n o r i n v o k e s e c u r i t y o f t e n u r e . under the facts here. Presiding Judge of Cebu Court of First Instance where the appointments of subjectemployees were disapproved by the Provincial Boards pursuant to the powers granted them. inC a r i l l o v . 807 and Section11. however. viz. CORPUZ was such a de facto officer . the commission. and the formal evidence of the appointment. No. Undeniably. acquiescence or mistake of the propero f f i c i a l s r e s u l t i n g i n n o n . 2260 and Section 2(a) of Rule VIof the Civil Service Rules implementing said law. Issue:Whether the CA erred in ruling that Corpuz’s appointment did not have the approval of theMTRCB Board Held:No. In either case. for it matters not that the appointee had served for severalyears. assumed office and performed the functionsand duties thereof is of no moment. may issueat once. Corpuz’s MR was denied. Until the process is completed. No. ruling that since the appointment of Corpuz was not approved by the MTRCB. which is among his powers under Section 5(d) above. i n t h e c a s e o f Corpuz. The CA then declared null and void Resolution No. Where. and his services were properly terminated. theappointment was invalid and he could not invoke security of tenure. Court of Appeals and Provincial Boardof Cebu v. if at all. other than itsSecretary. Taboy v. since the last act required for the completion of his appointment. In the latter.In the meantime.D. 7902. 292. no further consent or approval is necessary. it is the MTRCB itself thatis empowered to appoint said official pursuant to Section 16. CORPUZ became a permanent employee of the Ombudsman. approval by theMTRCB itself. the MTRCB ultimately disapproved it.o b s e r v a n c e o f t h e r e q u i r e m e n t s o f l a w o r r u l e s t o c o m p l e t e t h e appointment does not render the requirements ineffective and unenforceable.

88-820 dated November 7.R. Rollo) in view of the retirement of the Supply Officer I. namely: (1) Resolution No. 1988 which sustained the decision of the Secretary of Education. DE LA PAZ. Two (2) years thereafter. 1990 denying the motion for reconsideration with prayer for issuance of temporary restraining order for lack of merit. Milagros Tagle. then holding the position of Clerk II. Rollo). was designated on July 20. 1987 upholding the appointment of Mr. 1986. the Division Superintendent of City Schools of San Pablo City.: This petition for certiorari with prayer for the issuance of a restraining order seeks to nullify the resolutions issued by the respondent Civil Service Commission. Mr. de la Paz as Supply Officer I in the DECS Division of San Pablo City. The antecedent facts are as follows: Petitioner Victor A. 1988 reversing the decision of the Merit Systems Protection Board dated February 5. Aquino. Division of City Schools of San Pablo City. Magturo (Annex "H". vs. Victor A. or from the period February 16. respondents. AQUINO. Jose I. Aquino as Supply Officer I in the DECS. MEDIALDEA. and (2) Resolution No. 90-224 dated February 27. 55. No. petition. Division of San Pablo City. Culture and Sports dated May 4. Aviquivil. 1992 VICTOR A. . petitioner. p. issued a promotional appointment to private respondent Leonarda D. CIVIL SERVICE COMMISSION and LEONARDA D. 55. 1984. petitioner was designated as Property Inspector and In-Charge of the Supply Office performing the duties and responsibilities of the Supply Officer I (p. She assumed and performed the duties and functions of the position and received the compensation and benefits therefor. J. Prior to such designation. 92403 April 22.EN BANC G. or on September 19. 1984 as Officer-in-Charge of the Division Supply Office by the DECS Regional Director Saturnino R. 1984 to June 16.

Rollo) Private respondent then filed her petition for reconsideration of the aforequoted DECS decision but the same was denied by Secretary Quisumbing in a Resolution dated August 11. From August 25. de la Paz has had no relevant in-service training course attended and completed. no pending protest against the appointment. whose appointment thereto is deemed revoked. Mr. 31. nor any decision by competent authority that will adversely affect the approval of (the) appointment" (Annex "A". pp. Rollo). 1987.At the time of her appointment. The Civil Service Regional Office IV approved her appointment as permanent "provided that there is no pending administrative case against the appointee. Rollo). Accordingly. de la Paz. 1976 to September 1983. In a decision dated May 4. Annex "C". On the bases of the aforementioned rulings of the DECS Secretary. petitioner Aquino was issued a permanent appointment dated August 11. Comment of CSC. experience and training. she was designated as Assistant to the Supply Officer (DECS decision. 33-35. or on October 20. xxx xxx xxx Based on all the foregoing and as records further show that Mr. One (1) month after. petition pp. p 164. Aquino and Mrs. Further examination of the comparative statement shows that Mrs. Quisumbing sustained the protest of petitioner and revoked the appointment of private respondent as Supply Officer I thus: From the foregoing comparative statement of the qualifications of Mr. From the decision of the MSPB. therefore. petitioner assumed the duties and functions of the position. Division of City Schools of San Pablo City. 30-31. On the date of effectivity of his appointment. 1987. Aquino is competent and qualified to hold the subject position and possesses the eligibility requirement. (p. 1987 as Supply Officer I by the DECS Regional Director Pedro San Vicente effective October 26. apparently the former has a decided advantage over the latter in terms of education. The said appointment was approved by the Civil Service Regional Office IV on October 27. 1986 petitioner filed a protest with the DECS Secretary questioning the qualification and competence of private respondent for the position of Supply Officer I. DECS Secretary Lourdes R. For her part. 1967. private respondent appealed to public respondent Civil Service Commission (CSC). on February 5. private respondent de la Paz filed on October 16. 1988. rendered a decision upholding the appointment of Aquino as Supply Officer I (Annex "D". private respondent was then holding the position of Clerk II. 1987. this Office finds the instant protest meritorious and hereby rules and so rules that Mr. de la Paz for appointment as Supply Officer I. de la Paz. . Aquino is preferred to Mrs. Rollo). 1987 a notice of appeal with motion to maintain status quo to the Merit Systems Protection Board (MSPB) which. Aquino be appointed Supply Officer I in place of Mrs. p.

90229. 1989. principally because the right to security of tenure of the prior appointee. not being the "appointing power" in contemplation of law. thus revoking the appointment of petitioner Aquino and restoring private respondent de la Paz to her position as Supply Officer I. In support of petitioner's cause. 26-29. petitioner herein. October 27. 178 SCRA 733 and Galura v. public respondent CSC found the appeal of private respondent meritorious. petition. Rollo). 69137. No. 85812.R. has no authority to revoke an appointment on the ground that another person is more qualified for a particular position and that the Commission has no authority to direct the appointment of a substitute of its choice. April 10. DECS. 1989. 21. but we see no compelling reason to apply the same in the instant case. Civil Service Commission. 143 SCRA 327. We have consistently applied the above doctrine in many cases with similar factual circumstances. petitioner invokes the ruling of this Court in the case of Santiago v. pp. From said decision. Civil Service Commission. Patagoc v. In assailing the two (2) CSC Resolutions revoking his appointment. The Civil Service Commission cannot exceed its power by substituting its will for that of the appointing authority. Civil Service Commission. petition.R. G. 1990 denying said motion (Annex "A". No. 1989 (En Banc resolution) that the Civil Service Commission has no authority to revoke an appointment on the ground that another person is more qualified for a particular position for that would have constituted an encroachment on the discretion vested solely in the appointing authority. CSC. Rollo). 90-224 dated February 27. June 1. public respondent CSC issued Resolution No. 81467. G.R. 185 SCRA 411. Hence. Finding no merit to the motion for reconsideration filed by petitioner. 171 SCRA 744.24. May 14. G. August 5. Two (2) interrelated issues on the extent of authority of the Civil Service Commission to pass upon the contested appointments were raised by petitioner which could be simplified into whether or not public respondent Civil Service Commission committed grave abuse of discretion in revoking the appointment of petitioner Victor A. that public respondent CSC. 1986. pp. the Solicitor General stresses the wide latitude of discretion given to the appointing authority in the selection and appointment of qualified persons to vacant positions in the civil service which was emphasized by the Court as rationale for the rule laid down in Luego v. 1990. G. Central Bank v. Division of San Pablo City under her previously approved appointment (Annex "B". petitioner filed a motion for reconsideration with prayer for issuance of a temporary restraining order. No.R. No. 80455-56. 88-820 dated November 7. where the Civil Service Commission revoked the appointment of the successful protestant. this petition seeking the reversal of public respondent Commission's action on petitioner's appointment. The situation is different as in the instant case. We ruled that the Civil Service Commission has no authority to revoke an appointment simply because it (CSC) believed that another person is better qualified than the appointee for it would constitute an encroachment on the discretion solely vested on the appointing authority. CSC. private respondent .R. In the cases cited above.In Resolution No. 1988. Aquino as Supply Officer I in the DECS Division of San Pablo City as it found private respondent Leonarda de la Paz better qualified. G.

which is protected not only by statute. G. Subido. but consecutively. No. he acquires a legal. except for cause. she is entitled to the protection of the law against unjust removal. citing Marbury v. his title to the office becomes complete. 1986. In consonance with the doctrine laid down in Villanueva v. G. Law of Public Offices and Officers. 21 SCRA 127. Madison. though not concurrently. 1 Cranch (U. Sec. September 15. G. 807. that an appointment is complete when the last act required of the appointing power has been performed.herein. L-17745. October 31. the said appointment cannot be revoked by the appointing authority on the ground . and with previous notice and hearing (Mitra v. 294. There is also authority for the rule that when the appointing power has once acted and the appointee has accepted the office and done what is required of him upon its acceptance. under the circumstances of the case. 1966. 461. It must be noted that public respondent CSC did not direct the appointment of a substitute of its choice. Career Service (Professional) It is well-settled that once an appointment is issued and the moment the appointee assumes a position in the civil service under a completed appointment. or by removal.R. but also by the Constitution. to the contested position had already attached (see CSC decision. 1963. are necessary to make an appointment complete. pp. 9 SCRA 407. IV. Rupisan. the permanent appointment extended to private respondent.(h) of the Civil Service Law (P. 17 SCRA 190.R. The appointing power can not effect his removal indirectly by rescinding or revoking his appointment after it is complete. as amended). There is thus reasonable ground for the rule that the moment the discretionary power of appointment has been exercised and the appointee assumed the duties and functions of the position. L-21691. p. As such. is deemed complete.D. and he can then be removed only in the regular way (Mechem. not merely equitable right (to the position). 1986 as Supply Officer I in the DECS Division of San Pablo City effective September 30. Rollo). 28-29.S. and cannot be taken away from him either by revocation of the appointment. May 19. L-22823. The conclusion of respondent Commission in the questioned decision that private respondent is more qualified than petitioner merely supports the validity of the restoration of private respondent to her previously approved appointment considering that she meets the prescribed qualification standards required of the position of Supply Officer I and the appropriate civil service eligibility. that the acts of the head of a department or office making the appointment and the Commissioner of Civil Service acting together.) 137). It merely restored the appointment of private respondent who was first appointed to the contested position. to wit: EDUCATION: Bachelor's degree with training in Supply Management EXPERIENCE: None required ELIGIBILITY: Supply Officer. but later qualified in Favis v. private respondent assumed and performed the duties and functions of the position as Supply Officer I and received the compensation and benefits of the said position in accordance with the mandate of Section 9 par. No.R No. On the basis of the of said appointment which was approved by the Civil Service Regional Office No. 1967. The records show that private respondent was issued a permanent appointment on September 19. Balallo.

We have defined the concept of "for cause" in connection with removal of public officers in the case of De los Santos v. 1983. since there is no vacancy in the position pending resolution of the protest case. 87 Phil. or by original appointment. (6) of the Civil Service Law (P. Therefore. and (3) in case of appointment by transfer. An appointment to an office which is not vacant is null and void ab initio (Morata v. (3) of the 1987 Constitution would be rendered meaningless if the appointing authority is allowed to flip-flop in exercising its discretionary power of appointment. Otherwise. (p. While a protest is a made of action that may be availed of by the aggrieved party to contest the appointment made. 223. if not removal. and must be restricted to something of a substantial nature directly affecting the rights and interests of the public.merely that the protestant is more qualified than the first appointee. The incumbent must first be legally removed or his appointment validly terminated (Costin v. 1964. (2) that the appointee is not the next-in-rank.D. No. May 25. Neither does it fall under the grounds of appeal contemplated under Section 19 par. Moreover. Section 2 par. G. G. G. No. the security of tenure guaranteed by Article IX-B. No. 807). subject however to the condition that the first appointee should possess the minimum qualifications required by law. 83-343 which prohibits the issuance of an appointment to protestant (petitioner) if the protest case is not yet finally resolved. CSC Resolution No." The ground relied upon by petitioner in his protest that he is more qualified than private respondent in terms of education. thus: An appointment though contested shall take effect immediately upon issuance if the appointee assumes the duties of the position and (the) appointee is entitled to receive the salary attached to the position. (3) of the 1987 Constitution which would warrant the revocation. Rollo) .R. namely: (1) that the appointee is not qualified. It is implied that officers may not be removed at the mere will of those vested with the power of removal. and not merely causes which the appointing power in the exercise of discretion may deem sufficient. the protest of petitioner did not adversely affect the approval of the appointment of private respondent. There can be no appointment to a nonvacant position. L-3881. August 31. the protest must be "for cause" or predicated on those grounds provided for under Section 19 par. L-32271.D. Even on the assumption that the revocation of private respondent's appointment was validly exercised by DECS Secretary Quisumbing. Section 2 par. the cause must relate to and affect the administration of the office. January 27. Mallare. Quimbo. as follows: "It means for reasons which the law and sound public policy recognized as sufficient warrant for removal. in which case the protestee shall be reverted to his former position. that is legal cause. 83-343 provides. L-18975. 289. of the appointment of private respondent. still the appointment extended to petitioner was tainted with irregularity as it was issued before the finality of the decision on the protest in violation of CSC Resolution No. or without any cause. 1950. 11 SCRA 42). 807). reinstatement. that the protestant is not satisfied with the written special reason or reasons given by the appointing authority. (6) of the Civil Service Law (P. Likewise such appointment shall become ineffective in case the protest is finally resolved in favor of the protestant. 120 SCRA 159).R. Court of Appeals. experience and training does not fall within the meaning of "for cause" contemplated by Article IX-B.R.

1987. 77-78. DALMAN. J. EN BANC [G. give a stamp of approval to such a procedural irregularity in extending appointments. The appointment issued to petitioner as Supply Officer I was dated August 11. The decision dated May 4. however. No. December 13. 1987 was issued with undue haste before the finality of the denial of the motion for reconsideration. the petition is DENIED. DECISION PARDO. The Secretary of the Department of Education. Rollo). the appointment of petitioner dated August 11. 2000] THELMA P. R. COMMISSION ON AUDIT and/or Hon. GANGAN. 1987 (date of effectivity of his appointment) as reported by the Schools Division Superintendent of San Pablo City (pp.: The Case chanrobles virtual law library . DECS. RAUL C. Culture and Sports is hereby directed to restore private respondent Leonarda de la Paz to her previously approved appointment as Supply Officer I. to the prejudice of the right to security of tenure of the incumbent to the position. v. Division of San Pablo City. From all indications. 1987 and he assumed the position on October 26. While it is true that the appointing authority has a wide latitude of discretion in making his choice in the selection and appointment of qualified persons to vacant positions in the civil service. as in the instant case.Records reveal that the decision of the DECS Secretary revoking the appointment of private respondent was rendered on May 4. CELSO D. Hon. FLORES and EMMANUEL M. Respondents. we cannot. Petitioner. SO ORDERED. 1987 and the motion for reconsideration filed by private respondent was denied on August 11. 140335. 1987 of the respondent Civil Service Commission are hereby AFFIRMED. GAMINDE. ACCORDINGLY. 1987 and the resolution dated August 11.

1998. Gaminde and her co-terminous staff may be paid their salaries notwithstanding the expiration of their appointments on February 02. wrote the Commission on Audit requesting opinion on whether or not Commissioner Thelma P. In reply to her request. as set forth in her appointment paper. not on February 02. On September 07. chanrobles virtual law library . chanrobles virtual law library Relying on said advisory opinion. furnishing this Office and the Civil Service Commission with copies of your oath of office. 1998[2 opined that petitioners term of office would expire on February 02.The case is a special civil action of certiorari seeking to annul and set aside two decisions of the Commission on Audit ruling that petitioners term of office as Commissioner. CIVIL SERVICE COMMISSION. you may qualify and enter upon the performance of the duties of the office. 1993. you are hereby appointed. ad interim. 1999. 1993. the Chief Presidential Legal Counsel. Congress of the Philippines confirmed the appointment. in a letter dated April 07. on February 24. 1993. chanrobles virtual law library By virtue hereof. 2000. Gaminde. 1999. We quote verbatim her appointment paper: chanrobles virtual law library 11 June 1993 Madam: chanrobles virtual law library chanrobles virtual law library Pursuant to the provisions of existing laws. On February 04. expired on February 02. Civil Service Commission. 1999. Civil Service Commission. 1993. Chairman Corazon Alma G. COMMISSIONER. after taking an oath of office. petitioner remained in office after February 02. petitioner sought clarification from the Office of the President as to the expiry date of her term of office. She assumed office on June 22. the President of the Philippines appointed petitioner Thelma P. 1999. to which she was appointed on June 11. ad interim. 1999. Commissioner. the Commission on Appointment. The Facts chanrobles virtual law library On June 11. 1999.[1 chanrobles virtual law library However. de Leon. for a term expiring February 2.

the Chairman shall hold office for seven years. Civil Service Commission. 1999. 1999. 4 chanrobles virtual law library On April 5. Thelma P. The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment.[8 chanrobles virtual law library . 99-002-101 (99). the Commission on Audit issued Decision No. Appointment to any vacancy shall be only for the unexpired term of the predecessor. 1999. on March 24. disallowing in audit the salaries and emoluments pertaining to petitioner and her coterminous staff. 99-090 dismissing petitioners appeal. On June 15.[3 chanrobles virtual law library Consequently. petitioner appealed the disallowance to the Commission on Audit en banc. Commission on Audit. and another Commissioner for three years. In no case shall any Member be appointed or designated in a temporary or acting capacity. 1999. Gaminde. Of those first appointed.[5 chanrobles virtual law library In time.[6 chanrobles virtual law library Hence. expired on February 02. The Courts Ruling chanrobles virtual law library The term of office of the Chairman and members of the Civil Service Commission is prescribed in the 1987 Constitution. the Commission on Audit denied the motion in Decision No. 2000. as stated in the appointment paper. CSC Resident Auditor Flovitas U. without reappointment. not even with the implied acquiescence of the Office of the President. 1999. effective February 02. as claimed by her. The Commission on Audit affirmed the propriety of the disallowance.On February 18. holding that the issue of petitioners term of office may be properly addressed by mere reference to her appointment paper which set the expiration date on February 02. as follows: chanrobles virtual law library Section 1 (2). this petition. the General Counsel. 1999. 1999. or on February 02. on August 17. 1999 as stated in her appointment conformably with the constitutional intent. however. 99129. Felipe issued notice of disallowance No. 1993.7 The Issue chanrobles virtual law library The basic issue raised is whether the term of office of Atty. petitioner moved for reconsideration. 1999. a Commissioner for five years. to which she was appointed on June 11. and that the Commission is bereft of power to recognize an extension of her term. issued an opinion that the term of Commissioner Gaminde has expired on February 02. as Commissioner.

[13 chanrobles virtual law library Applying the foregoing conditions to the case at bar.9 chanrobles virtual law library Actually. (2) that any vacancy due to death. Appointment to any vacancy shall be only for the unexpired portion of the term of the predecessor. irrespective of the variations in the dates of appointments and qualifications of the appointees. who shall hold office for a term of nine years and may not be reappointed.11 we said that the operation of the rotational plan requires two conditions. we rule that the appropriate starting point of the terms of office of the What the above quoted Transitory Provisions contemplate is tenure not term of the incumbent Chairmen and Members of the Civil Service Commission. and the third for three years. The Constitutional amendment creating an independent Commission on Elections provides as follows: chanrobles virtual law library Section 1. in order that the expiration of the first terms of seven. five and three years should lead to the regular recurrence of the two-year interval between the expiration of the terms. There shall be an independent Commission on Elections composed of a Chairman and two other Members to be appointed by the President with the consent of the Commission on Appointments. and the third for three years. The provision on the 1973 Constitution reads: chanrobles virtual law library x x x The Chairman and the Commissioners shall be appointed by the Prime Minister for a term of seven years without reappointment. the Commission on Elections and the Commission on Audit. Of the Commissioners first appointed. one shall hold office for nine years. the terms of the first Chairmen and Commissioners of the Constitutional Commissions under the 1987 Constitution must start on a common date."[10 chanrobles virtual law library In Republic vs. another for six years. who shall continue in office for one year after the ratification of this Constitution. Imperial. The Chairman and the other Members of the Commission on Elections may be removed from office only by impeachment in the manner provided in this Constitution. Of the Members of the Commission first appointed. one shall hold office for seven years. resignation or disability before the expiration of the term should only be filled only for the unexpired balance of the term. another for five years. both indispensable to its workability: (1) that the terms of the first three (3) Commissioners should start on a common date. and.12 chanrobles virtual law library Consequently. unless they are sooner removed for cause or become . this was a copy of the Constitutional prescription in the amended 1935 Constitution of a rotational system for the appointment of the Chairman and members of the Commission on Elections.The 1973 Constitution introduced the first system of a regular rotation or cycle in the membership of the Civil Service Commission.

nd chanrobles virtual law library Given the foregoing common starting point. providing for a seven-five-three year rotational interval for the first appointees under this Constitution.17 Clearly. chanrobles virtual law library However. the incumbent Chairman and members of the Civil Service Commission were the following: (1) Chairperson Celerina G. The term unless imports an exception to the general rule. which she assumed on March 13. 1990. His tenure was automatically cutoff by the filing of his certificate of candidacy. exceeding his lawful term. Aquino appointed him Commissioner. Yango. Mario D. On June 25. 2 District. 1988. all of which events may occur before the end of the one year period after the effectivity of the Constitution. Gotladera. 1987. due to his belated appointment. without any term. and appointed chairman on December 24. 1986. 1986. (2) their becoming incapacitated to discharge the duties of their office. when his term ended in virtue of the transitory provisions referred to. thereby vacating his position as Commissioner.incapacitated to discharge the duties of their office or appointed to a new term thereunder. She was initially appointed as OIC Chairman on March 19. and his actual assumption on May 30. 1986. must be counted against him. He served until February 2. 1985. and served until March 31. 1988. as follows: chanrobles virtual law library . President Ferdinand E. On May 30. 1991. we compute the terms of the first appointees and their successors to the Civil Service Commission under the 1987 Constitution by their respective lines. President Corazon C. it was only Commissioner Yango who was extended a new term under the 1987 Constitution. (3) Atty. Montejo. when he filed a certificate of candidacy for the position of Congressman. He assumed office on July 9. 1987. chanrobles virtual law library At the time of the adoption of the 1987 Constitution. 1987. Marcos appointed him Commissioner for a term expiring January 25. but not exceeding the maximum of seven years. 1986. The period consumed between the start of the term on February 02. including service before the ratification of the 1987 Constitution. who may cut short their tenure by: (1) their removal from office for cause. Leyte. Under this factual milieu. the transitory provisions do not affect the term of office fixed in Article IX. Cirilo G. (2) Atty. On January 22. or (3) their appointment to a new term thereunder. 1988. President Aquino re-appointed him to a new three-year term and served until May 31. the transitory provisions mean that the incumbent members of the Constitutional Commissions shall continue in office for one year after the ratification of this Constitution under their existing appointments at the discretion of the appointing power.

of Deputy Executive Secretary Renato C. 2001. Samilo N. On February 17. Corona [19 clarifying that . CHAIRMAN. paragraph 2. Sto. She is bound by the term of the appointment she accepted. 1993. This term must be deemed to start on February 02. February 02. February 02. On September 07. the Commission on Appointments. 1993. On March 02. the President nominated Ms. 1994. the Commission on Appointments confirmed the nomination. Section 16.First line : Chairman seven-year term. Civil Service Commission. She assumed office on March 22. On January 30. She assumed office on March 04. quoted verbatim as follows: March 5. 1995. for a term expiring February 02. chanrobles virtual law library On June 11. 1988. chanrobles virtual law library By virtue hereof. His term ended on February 02. to a regular seven-year term. whose term started on the common date of the terms of office of the first appointees under the 1987 Constitution. de Leon. chanrobles virtual law library This is shown in her appointment paper. She served as de facto Chairman until March 04. 2001. 1998. He assumed office on March 04. Tomas Chairman. 1988. He served as de facto Commissioner until March 04. 1993. 1994. On March 05. 1999. In this connection. RAMOS chanrobles virtual law library Second line : Commissioner Five-year term. ad interim. the President appointed Atty. furnishing this Office and the Civil Service Commission with copies of your oath of office. On January 30. the President nominated Atty.) FIDEL V. 1988. 1988. 1988. 1995 Madam: chanrobles virtual law library chanrobles virtual law library chanrobles virtual law library Pursuant to the provisions of Article VII. Thelma P. Civil Service Commission. Chairman. 1988. Her term ended on February 02. Patricia A. the Commission on Appointments confirmed the appointment. Congress of the Philippines. you are hereby appointed. chanrobles virtual law library (Sgd. 1999. the letter dated April 07. 1994. Civil Service Commission. immediately succeeding her predecessor. expiring February 02. you may qualify and enter upon the performance of the duties of the office. She accepted the appointment and assumed office on June 22.18 This terminal date is specified in her appointment paper. 1987 to February 02. CIVIL SERVICE COMMISSION. for a term expiring February 2. 1995. 1992. 1993. Civil Service Commission. 1995. for a term expiring February 02. Barlongay Commissioner. the President appointed then Social Welfare Secretary Corazon Alma G. 1987 to February 01. 1992. confirmed the nomination. Gaminde Commissioner. of the Constitution.

for Chairman. Civil Service Commission. February 02. for Commissioner Thelma P. His term ended on February 02. we see the regular interval of vacancy every two (2) years. was in error. Jose F. 22 February 02. February 02. Commissioner. 1991. President Fidel V. 2000. 1997.21 chanrobles virtual law library Commendably. and February 02. 2004. On December 04. Jr.24 Their successors must also maintain the two year interval. and expire on February 02. chanrobles virtual law library The third batch of appointees would then be having terms of office as follows: chanrobles virtual law library First line : Chairman. [26 and. for Commissioner Ramon P. He assumed office on February 11. Yango was incumbent commissioner at the time of the adoption of the 1987 Constitution. chanrobles virtual law library Third line : Commissioner Three-year term. 1992. 1991. Ramon P. for a term expiring February 02. 1991. for the first Chairman. Third line: Commissioner. On November 26. 2006. 1997. On February 03. Thus. chanrobles virtual law library Thus. Erestain. 1990. he voluntarily retired on February 02. 1999 to February 02. Mario D. What was submitted to the Commission on Appointments was a nomination for a term expiring on February 02. the President nominated Atty. Jr. 1988. 1987 to February 02. but served as de facto Commissioner until May 31. 1988.23 and February 02. Ramos appointed Atty. chanrobles virtual law library The line of succession. 1999. 1999. for a term expiring February 02. February 02. Ereeta as Commissioner. the Commission on Appointments confirmed the nomination. 2008. Civil Service Commission. the term of her successor [20 must be deemed to start on February 02. Ereeta. 1988. 2004. namely. [25 February 02. Atty. Second line: Commissioner. for the first three-year term Commissioner. terms of office and tenure of the Chairman and members of the Civil Service Commission may be outlined as follows: [28 law library Chairman Term (7-year original) Tenure chanrobles virtual law library chanrobles virtual law library chanrobles virtual . 2006. 1999. In May.her term would expire on February 02. Aquino appointed him Commissioner. for the first five-year term Commissioner. February 02. February 02. He assumed office on May 30. He assumed office on December 12. His extended tenure ended on February 02. 2001 to February 02. 1991. 1997. Gaminde. namely: February 02. 2001. 1997 to February 02. Civil Service Commission to a new threeyear term thereunder. 27 thereby consistently maintaining the two-year interval. 1994. 1997. 1990. President Corazon C. 1997. 1990.

Tomas 1st appointee Feb. 02. 1997 to (incumbent) chanrobles virtual law library chanrobles virtual law library chanrobles virtual law library Feb. 1987 to Mar. 02.02. 1992 March04. 02. 1991 to Feb. 2001 chanrobles virtual law library chanrobles virtual law library _______ . 1988 to Feb. 02. 2006 TermTenure rd chanrobles virtual law library chanrobles virtual law library chanrobles virtual law library chanrobles virtual law library chanrobles virtual law library chanrobles virtual law library Yango . 02. 1991 Ereeta 2nd appointee Feb. 1994 to March 22. 1988 to Feb.02. chanrobles virtual law library This decision shall be effective immediately. 1997 chanrobles virtual law library chanrobles virtual law library Erestain. 1993 Gaminde 2nd appointee Feb. 2001 Feb. 02. 02. 1999 Feb. Civil Service Commission.Sto. 12. 1995 chanrobles virtual law library chanrobles virtual law library De Leon 2nd appointee Feb.02. 1990 to Dec. chanrobles virtual law library SO ORDERED. the Commission on Audit erred in disallowing in audit such salary and other emoluments. 11.3rd appointee Feb. including that of her co-terminous staff. 02. 1987 to May 30. 08. 2000. Thelma P. 02. 02. 02. 02. 2004 Feb. 2000 chanrobles virtual law library chanrobles virtual law library Valmores 3rd appointee Feb. 2008 2nd Member Term (5-year original) Tenure chanrobles virtual law library chanrobles virtual law library chanrobles virtual law library Barlongay 1st appointee Feb.02.1st appointee Feb. 02. 02. Gaminde and her coterminous staff during her tenure as de facto officer from February 02. 04. Gaminde as Commissioner. 1993. 02. Consequently. 2004 The Fallo chanrobles virtual law library WHEREFORE. 02. chanrobles virtual law library ACCORDINGLY. she served as de facto officer in good faith until February 02. expired on February 02. 2000 to (incumbent) 3 Member (3-year original) Feb. we REVERSE the decisions of the Commission on Audit insofar as they disallow the salaries and emoluments of Commissioner Thelma P. 1988 to Feb. 1999. under an appointment extended to her by President Fidel V. 1995 to (incumbent) Feb. 02.02. 1992 to June 11. 1997 Feb. 2000. 3rd appointee Feb. and thus entitled to receive her salary and other emoluments for actual service rendered. However. 1987 to March 04. 1990 May31. 1994 March08. 1997 to Feb. No costs. 1999 to Sept. we adjudge that the term of office of Ms. 1993 to Feb. 2006Feb. chanrobles virtual law library chanrobles virtual law library . 02. 1999. 2001 to Feb. Jr. until February 02. Ramos on June 11.

26. RUBEN J. who approved and effected the disbursements for the salaries and other emoluments of subject police officers. PACHECO. REGINO ARO III. Aquino. JR. REOTUTAR. Powers. 107369. . deployment. NAVARRO. CRUZ. DECISION PURISIMA. Article VII of the 1987 Constitution and Republic Act 6975 otherwise known as the Local Government Act of 1990. In this special civil action for Prohibition under Rule 65 of the Revised Rules of Court. MERARDO G.R.. WILFREDO R. Functions and Term of Office of the PNP Chief. GARCIA and HONORABLE SALVADOR M. No. SISTOZA. NARTATEZ. ABAYA. J. FELINO C. PEDRO J. The issue posed concerning the limits of the power of the Commission on Appointments to confirm appointments issued by the Chief Executive has been put to rest in a number of cases. MANALO. GERONIMO B. petitioner. PEDRO G. 1990. RAYMUNDO L. respondents.EN BANC [G. utilization of the PNP or any of its units and . CUSTODIO. ENRIQUEZ II In His Capacity as Secretary of Budget and Management. DOMINADOR M. GUILLERMO DOMONDON.: The case at bar is not of first impression. LOGAN. vs. VALDERRAMA. 1999] JESULITO A. Impleaded in the case is the former Secretary of Budget and Management Salvador M. petitioners question the constitutionality and legality of the permanent appointments issued by former President Corazon C. The antecedents facts are as follows: On December 13. RODOLFO M.The command and direction of the PNP shall be vested in the Chief of the PNP who shall have the power to direct and control tactical as well as strategic movements. The court finds no basis for departing from the ruling laid down in those cases. EVERLINO B. MANGUBAT. BULAN. Republic Act 6975 creating the Department of Interior and Local Government was signed into law by former President Corazon C. Pertinent provisions of the said Act read: Sec. Enriquez III. placement. NICASIO MA. August 11. ENRIQUE T. Aquino to the respondent senior officers of the Philippine National Police who were promoted to the ranks of Chief Superintendent and Director without their appointments submitted to the Commission on Appointments for confirmation under Section 16.

Appointed by the President from among the senior officers down to the rank of chief superintendent in the service. RAYMUNDO L. . Provided. Appointment of PNP Officers and Members. funds. That in times of war or other national emergency declared by Congress. subject to confirmation by the Commission on Appointments: Provided. (b) Inspector to Superintendent . correspondence and such other matters as may be necesary to effectively carry out the functions. The Chief of the PNP shall be appointed by the President from among the senior officers down to the rank of the chief superintendent. including its equipment. REGINO ARO III - Director Chief Supt.Appointed by the President upon recommendation of the Chief of the PNP. SISTOZA - Director Chief Supt. Such command and direction of the Chief of the PNP may be delegated to subordinate officials with respect to the units under their respective commands. PEDRO G. promoted the fifteen (15) respondent police officers herein. That. Provided. Sec. as recommended by their immediate superiors. through then Executive Secretary Franklin M. powers and duties of the Bureau. on March 10. “ (underlining supplied). CUSTODIO - Director Chief Supt. In accordance therewith. further. in accordance with the rules and regulations prescribed by the Commission. That the Chief of the PNP shall serve a term of office not to exceed four (4) years: Provided.The appointment of the officers and members of the PNP shall be effected in the following manner: (a) Police Officer I to Senior Police Officer IV . properties. NICASIO MA. with the proper endorsement by the Chairman of the Civil Service Commission and subject to confirmation by the Commission on Appointments. in times of war or other national emergency declared by Congres. subject to confirmation by the Commission on Appointments.personal. Drilon. and (d) Director General . The Chief of the PNP shal also have the power to issue detailed implementing policies and instructions regarding personnel. facilities and other resources. records.Appointed by the PNP regional director for regional personnel or by the Chief of the PNP for the national headquarters personnel and attested by the Civil Service Commission. GUILLERMO DOMONDON - Director Chief Supt. the President may extend such tour of duty. namely: Chief Supt. and attested by the Civil Service Commission. (c) Senior Superintendent to Deputy Director General .31. 1992. further.” [1] (underlining supplied). the President of the Philippines. That the Chief of the PNP shall serve a tour of duty not to exceed four (4) years.Appointed by the Chief of the PNP. the President may extend such term of office. by appointing them to positions in the Philippine National Police with the rank of Chief Superintendent to Director[2]. LOGAN - Director .

under the then Secretary Salvador M. ENRIQUE T. GERONIMO B. ABAYA - Chief Superintendent Senior Supt. authorized disbursements for their salaries and other emoluments. considering that : A. the Department of Budget and Management. VALDERRAMA - Chief Superintendent Senior Supt. - Chief Superintendent Senior Supt. they may qualify and enter upon the performance of the duties of the office. the petitioner brought before this Court this present original petition for prohibition. to assail the legality of subject appointments and disbursements made therefor. despite their invalid appointments. MERARDO G. in view of the failure to secure the required confirmation of the Commission on Appointments as required by the Constitution and the law. PEDRO J. Respondent officers. GARCIA - Chief Superintendent The appointments of respondent police officers were in a permanent capacity. PACHECO. . are acting without or in excess of their jurisdiction or with grave abuse of discretion. BULAN - Chief Superintendent Senior Supt. WILFREDO REOTUTAR - Chief Superintendent Senior Supt. Enriquez III. NAVARRO - Chief Superintendent Senior Supt. The Philippine National Police is akin to the Armed Forces where the Constitution specifically requires confirmation by the Commission on Appointments. DOMINADOR MANGUBAT - Chief Superintendent Senior Supt. Their letters of appointment stated in part : “By virtue hereof.”[3] Without their names submitted to the Commission on Appointments for confirmation. 1992. JR. B. FELINO C.Senior Supt. RUBEN J. furnishing this office and the Civil Service Commission with copies of their oath of office. Republic Act 6975 is a valid law that duly requires confirmation of the appointments of officers from the rank of senior superintendent and higher by the Commission on Appointments. as a taxpayer suit. CRUZ - Chief Superintendent Senior Supt. RODOLFO M. in assuming their offices and discharging the functions attached thereto. Petitioner contends that: “I. EVERLINO NARTATEZ - Chief Superintendent Senior Supt. the said police officers took their oath of office and assumed their respective positions. Thereafter. On October 21.

This court touched upon the historical antecedent of the said provision in the case of Sarmiento III vs. as was the case under the 1935 Constitution. However. commissions. vest the appointment of other officers lower in rank in the President alone. leads to abuse of such power. other public ministers and consuls. . or boards. which provides: “Section 16. the courts will not hesitate to strike down such unconstitutional law. to see to it that every law passed by Congress is not repugnant to the organic law. He maintains that the respect accorded to each department of the government requires that the court should avoid. Courts have the inherent authority to determine whether a statute enacted by the legislature transcends the limit delineated by the fundamental law. Article VII of the Constitution. Experience showed that when almost all presidential appointments required the consent of the Commission on Appointments. The President shall nominate and. or in the heads of departments. agencies.[6] On the other hand. ambassadors. or officers of the armed forces from the rank of colonel or naval captain. in the courts. by law. with the consent of the Commission on Appointments. The Court agrees with petitioner. It is not impressed with merit. placing absolute power to make appointments in the President with hardly any check by the legislature. the commission became a venue of “horse-trading” and similar malpractices. it is equally demanded from the courts. and other officers whose appointments are vested in him in this Constitution. and those whom he may be authorized by law to appoint.” The petition must fail. Mison[5] in which it was ratiocinated upon that Section 16 of Article VII of the 1987 Constitution requiring confirmation by the Commission on Appointments of certain appointments issued by the President contemplates a system of checks and balances between the executive and legislative branches of government. as much as possible. as what happened under 1973 Constitution. The President shall have the power to make appointments during the recess of the Congress. The framers of the 1987 Constitution deemed it imperative to subject certain high positions in the government to the power of confirmation of the Commission on Appointments and to allow other positions within the exclusive appointing power of the President. Petitioner theorizes that Republic Act 6975 enjoys the presumption of constitutionality and that every statute passed by Congress is presumed to have been carefully studied and considered before its enactment. whether voluntary or compulsory. appoint the heads of the executive departments. The Congress may.[4] When it does. as guardians of the Constitution. The power to make appointments is vested in the Chief Executive by Section 16. but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law. Respondent Secretary in allowing and/or effecting disbursements in favor of respondent officers despite the unconstitutionality and illegality of their appointments is acting without or in excess of his jurisdiction or with grave abuse of discretion.II. Thus was perceived the need to establish a “middle ground” between the 1935 and 1973 Constitutions.” The aforecited provision of the Constitution has been the subject of several cases on the issue of the restrictive function of the Commission on Appointments with respect to the appointing power of the President. deciding constitutional questions.

and in the subsequent cases of Bautista vs. Constitutional Commission[9]. under Section 16. It shall keep a regular force necessary for the security of the State.[12] It is petitioner’s submission that the Philippine National Police is akin to the Armed Forces of the Philippines and therefore. Congress cannot by law expand the power of confirmation of the Commission on Appointments and require confirmation of appointments of other government officials not mentioned in the first sentence of Section 16 of Article VII of the 1987 Constitution. It is well-settled that only presidential appointments belonging to the first group require the confirmation by the Commission on Appointments. The authority of local . Third. officers lower in rank whose appointments the Congress may by law vest in the President alone. no less. there are four groups of officers of the government to be appointed by the President: First. Consequently. This contention is equally untenable. of the Constitution. As held in the case of Tarrosa vs. officers of the armed forces from the rank of colonel or naval captain. But the unconstitutionality of the aforesaid sections notwithstanding. Under Section 4 of Article XVI of the 1987 Constitution. Carale[10]. the heads of the executive departments. The Constitution.” On the other hand. as consistently interpreted and ruled in the leading case of Sarmiento III vs.Conformably. It is well-settled that when provisions of law declared void are severable from the main statute and the removal of the unconstitutional provisions would not affect the validity and enforceability of the other provisions. “The Armed Forces of the Philippines shall be composed of a citizen armed force which shall undergo military training and service. the rest of Republic Act 6975 stands. The Philippine National Police is separate and distinct from the Armed Forces of the Philippines. Second. and Calderon vs. The appointments of respondent officers who are not within the first category. as may be provided by law. Quintos-Deles vs. the appointments of police officers whose rank is equal to that of colonel or naval captain require confirmation by the Commission on Appointments. Article VII. which shall be national in scope and civilian in character to be administered and controlled by a national police commission. Fourth. Mison[7]. ambassadors. and other officers whose appointments are vested in him in this Constitution. Section 6 of the same Article of the Constitution ordains that: “The State shall establish and maintain one police force. need not be confirmed by the Commission on Appointments. all other officers of the Government whose appointments are not otherwise provided for by law. Singson[11]. the statute remains valid without its voided sections. sets forth the distinction. unconstitutional are Sections 26 and 31 of Republic Act 6975 which empower the Commission on Appointments to confirm the appointments of public officials whose appointments are not required by the Constitution to be confirmed. those whom the President may be authorized by law to appoint. Salonga[8]. other public ministers and consuls.

Enriquez III of the Department of Budget and Management. Thereunder. directors and chief superintendents of the PNP. the police force is different from and independent of the armed forces and the ranks in the military are not similar to those in the Philippine National Police. did not act with grave abuse of discretion in authorizing and effecting disbursements for the salaries and other emoluments of the respondent police officers whose appointments are valid. trained and equipped primarily for the performance of police functions. Congress enacted Republic Act 6975 which states in part: Section 2.” To so distinguish the police force from the armed forces. ensure public safety and further strengthen local government capability aimed towards the effective delivery of the basic services to the citizenry through the establishment of a highly efficient and competent police force that is national in scope and civilian in character. No element of the police force shall be military nor shall any position thereof be occupied by active members of the Armed Forces of the Philippines. Thus. No pronouncement as to costs. the respondent former Secretary Salvador M. for lack of merit. In view of the foregoing disquisition and conclusion. WHEREFORE. Its national scope and civilian character shall be paramount.executives over the police units in their jurisdiction shall be provided by law. xxx The policy force shall be organized. Manalo vs Sistoza 5 11 2010 . Declaration of policy . the petition under consideration is hereby DISMISSED.It is hereby declared to be the policy of the State to promote peace and order. do not fall under the first category of presidential appointees requiring the confirmation by the Commission on Appointments. SO ORDERED. such as the herein respondent police officers.

Thereafter. When it does the courts will not hesitate to strike down such unconstitutionality. THIRD DIVISION [G. as a tax payer suit to the SC to assail the legality of subject appointment and disbursement thereof. respondent.: This petition for review on certiorari[1] seeks to set aside the Decision dated June 20.Rate This 312 scra 239 Appointments Petitioner. JULIETA MONSERATE. authorized disbursements for their salaries and other emoluments.[2] declaring null and void the Resolution No.R. under the then Secretary Salvador Enriquez III. vs.R. No. 1997 of the Court of Appeals in CA-G. 1995 of the Civil Service Commission (CSC). 1995 and Resolution No. PHILIPPINE PORTS AUTHORITY (PPA) and RAMON ANINO. J. 952043 dated March 21. April 17. DECISION SANDOVAL-GUTIERREZ. Monserate as Division Manager II of the Resources . 129616. Jesulito Sistoza question the constitutionality and legality of the appointments issued by former Pres. The petitioner brought before this petition for prohibition. No. 2002] THE GENERAL MANAGER. and ordering the reinstatement of Julieta G. The said police officers tool their Oath of Offices and assumed their respective positions. 956640 dated October 24. the Department of Budget and Management. HELD: The SC held that the appointments are valid. ISSUE: Whether or not the appointment of the senior officers of the PNP is valid even without the confirmation of the Commission on Appointments. 39670. Corazon Aquino to the respondent senior officers of the PNP who were promoted to the rank of Chief Superintendent and Director without their appointments submitted to the Commission on Appointments for confirmation. petitioners. The court has the inherent authority to determine whether a statute enacted by the legislature transcends the limit alienated by the fundamental law.

in a Resolution[6] dated August 11. the dispositive portion of which reads: “WHEREFORE. 2. 1986. JULIETA ANINO. protesting against respondent’s appointment. same office. 1988. s. 3. Rogelio A. The PPA Appeals Board.[8] and (3) Civil Service Eligibility. respondent was furnished a copy of PPA Special Order No. started her government service in 1977 as Bookkeeper II in the Port Management Office. the CSC. Dayan. she was promoted to the position of Cashier II and then as Finance Officer (SG-16) in 1980. 1988. Anino as Resources Management Division Manager of the Port Management Office of Iloilo.2 and Par. premises considered. 3. MONSERATE. sustained the protest and rendered ineffective respondent’s appointment based on “(1) CSC MC No. Maximo Dumlao. Par. 6. through Guillermo R. 1988. 1988. MANAGEMENT DIVISION DIVISION MANAGER CS PROF / RA 1080 ELIGIBILITY xxx TOTAL CS Prof. 10. 1988. Bar RA 1080 xxx xxx xxx xxx 79. PPA. respondent. Iloilo City. then General Manager of the PPA. Meanwhile. Barely a year later. respondent applied for the permanent position of Manager II (SG-19) of the Resource Management Division. DARIO ESPINOSA. s. The Comparative Data Sheet[4] accomplished by the PPA Reorganization Task Force shows the ranking of the six (6) aspirants to the said position. thus: “COMPARATIVE DATA SHEET OFFICE: DIVISION: POSITION: REQUIRED CS ELIG. on April 18. RAMON TEODOSIO. 1988. Mr. who ranked second to respondent per the Comparative Data Sheet earlier quoted. Jr. 4. B. 5. 1988. On even date.[3] In the early part of 1988. Iloilo City.: CANDIDATES 1. 5. That Special Order excluded the name of respondent from the pool- .Management Division.” These grounds were not explained or discussed in the Resolution.[7] (2) CSC MC NO. APRIL MORTOLA. The facts are: Julieta Monserate. respondent assumed office and discharged the functions thereof. 1 grade PD 907 (CPA) CS Prof. Philippine Ports Authority (PPA).5 59.5 70 67 67 st xxx xxx 63. petitioner Ramon Anino. when the PPA underwent a reorganization. filed an appeal/petition with the PPA Appeals Board. Ports Management Office. Par. On July 8.5” On February 1. A. 1. dated September 28.” On October 24. this Board upholds the appointment of Ramon A. issued by the new PPA General Manager. Silva (Assistant Director of the Civil Service Field Office-PPA) approved her appointment. appointed[5] respondent to the position of Manager II (Resource Management Division).. 479-88[9] (entitled “Creation of the PPA Manager’s Pool”). AMALIK PERFECTO. BASCOS PMO ILOILO RES.

1988 a “precautionary appeal”[13] with the CSC. “Monserate’s claim that she is more qualified than Anino is not relevant to the issue before this Commission. was not included in the said proceedings. respondent filed with the PPA General Manager an appeal/request for clarification dated November 2. The Commission will not disturb the choice of the appointing authority as long as the appointee meets the qualification prescribed for the position in question. respondent filed with the CSC an appeal formally protesting against petitioner Anino’s appointment and at the same time questioning the propriety of the August 11. This PPA Order officially reassigned her to the position of Administrative Officer (SG-15) which was petitioner Anino's former position and was lower than her previous position as Finance Officer (SG 16) before she was appointed as Division Manager. the CSC. Apparently at a loss with the turn of events. in its Resolution No. 1988.” . 1989. she has not yet been furnished a certified copy of the PPA Appeals Board Resolution. coupled by the inaction of PPA General Manager Dayan on her earlier appeal/request for clarification. 492-88[12] dated October 21. 1989. This is covered by Section 19. respondent received a copy of her new appointment as Administrative Officer dated October 1. does not become final until the protest filed against it is decided by the agency or by the Commission. respondent filed on November 25. Rule VI of the Omnibus Rules implementing EO 292 x x x. In effect. 1995. the Special Order implemented the August 11. 1988 Resolution of the PPA Appeals Board. Resource Management Division. On January 16. she assumed the position of Administrative Officer. 1988. 479-88. 1988 PPA Appeals Board Resolution or a copy of the protest filed by petitioner Anino. thus: “It is well-established rule that an appointment. pending resolution of her appeal/request for clarification. the main question to be resolved is whether or not the appointee meets the qualification standard. 1988 Resolution of the PPA Appeals Board. She manifested that as of said date (November 25). This appeal remained pending with the CSC for more than six (6) years despite respondent's requests for early resolution. 1988.list and placed instead the name of petitioner as Manager II. In cases of protest filed or appealed to the Commission. dismissed respondent’s appeal. On January 2. Aggrieved. who was then an official member of the Board. In the meantime. (2) she was not furnished a copy of the August 11. x x x. 1988. claiming that the proceedings before the PPA Appeals Board were irregular because (1) she was not notified of the hearing before it. 1988 as Manager II in the Resource Management Division effective February 1. also issued by General Manager Dayan. Eventually. and (4) their Port Manager (in Iloilo City). Although Monserate had already assumed the position of RMD Manager II. although approved by this Commission. 95-2043[15] dated March 21. respondent received a copy of PPA Special Order No.[10] She questioned her replacement under PPA Special Order No.[14] It was also during this time when she learned that PPA General Manager Dayan had just issued petitioner’s appointment dated October 21. the appointing authority may still withdraw the same if a protest is seasonably filed. On November 8.[11] (3) she was not informed of the reasons behind her replacement. 1988.

the Court of Appeals rendered a Decision[16] nullifying the twin Resolutions of the CSC. The dispositive portion of the Court of Appeals' Decision reads: “THE FOREGOING CONSIDERED. 952043 and 95640 (should be 956640) dated March 21 and October 21. respondent was not . In due time. 1997. Resource Management Division. to the position of Administrative Officer (SG-15) was a demotion violative of her constitutional right to security of tenure and due process. It ruled that the August 11. 1988 Resolution of the PPA Appeals Board was not supported by evidence and that the same was irregularly issued due to lack of proper notice to respondent with respect to the Board’s proceedings. and directing the reinstatement of the petitioner to the position of Resource Management Division Manager II. THUS VIOLATING HER RIGHT TO SECURITY OF TENURE. 1995).” Thereupon. “SO ORDERED.[17] Petitioners ascribe to the Court of Appeals the following errors: I THE COURT OF APPEALS SERIOUISLY ERRED IN FINDING THAT RESPONDENT MONSERATE WAS DEMOTED FROM RESOURCES MANAGEMENT DIVISION MANAGER TO ADMINISTRATIVE OFFICER. III THE COURT OF APPEALS COMMITTED A SERIOUS ERROR OF JUDGMENT IN IGNORING THAT IN CASES OF PROTEST FILED OR APPEALED TO THE CSC. ALTHOUGH APPROVED BY CSC. Here. 1988 (should be October 24. of the Civil service Commission. THE MAIN QUESTION TO BE RESOLVED IS WHETHER OR NOT THE APPOINTEE MEETS THE QUALIFICATION STANDARD. 1995. Resource Management Division (SG-19). On June 20.[18] The pivotal issue in this case is whether or not there was due process when respondent was replaced by petitioner Anino from her position as Manager II. 95-6640 dated October 24. DOES NOT BECOME FINAL UNTIL THE PROTEST FILED AGAINST HER IS FAVORABLY DECIDED IN HER FAVOR BY THE AGENCY OR THE CSC. Ramon Anino and the PPA General Manager filed on August 14. II THE COURT OF APPEALS GRAVELY ERRED IN NOT ALIGNING ITSELF WITH THE WELL-NIGH RULE THAT RESPONDENT MONSERATE’S APPOINTMENT AS RESOURCE MANAGEMENT DIVISION MANAGER. It concluded that her reassignment from the position of Manager II. and demoted as Administrative Officer.Respondent filed a motion for reconsideration but the same was denied by the CSC in its Resolution No. petitioner Anino retired from the government service. 1997 the present petition. being in the nature of administrative penalty. Petitioners vehemently aver that respondent was never demoted since demotion. judgment is hereby rendered declaring as null and void Resolution Nos. On November 30. 1997. respondent filed with the Court of Appeals a petition for review impleading as respondents the PPA General Manager and petitioner Anino. presupposes a conviction in an administrative case.

being the appointing authority. the said displacement was just the necessary effect of the August 11. This appointment was later approved on July 8. they cited Section 19. shall take effect immediately upon its issuance if the appointee assumes the duties of the position and the appointee is entitled to receive the salary attached to the position.” Petitioners also contend that the head of an agency. otherwise the appointment becomes ineffective thereafter. Consequently. In support of this contention. Jr. “the CSC acted rightly when it did not interfere in the exercise of discretion by the PPA appointing authority. . PPA Special Order No. Silva of the Civil Service Field Office-PPA. during which time she actually assumed office and discharged its functions. Rather. Rule VI of the Omnibus Rules Implementing Book V of Executive Order No. 1988 Resolution of the PPA Appeals Board which sustained petitioner Anino’s timely protest against respondent’s appointment. 1988 which excluded respondent Monserate from the PPA Managers’ pool-list. An appointment. In the first place. Respondent was eventually issued a permanent appointment as such Division Manager on February 1. while petitioner Anino ranked No. 1. Clearly. there being no evidence of grave abuse of discretion thereof or violation of the Civil Service Law and Rules. to the lower position of Administrative Officer (SG-15). is the one most knowledgeable to decide who can best perform the functions of the office.. This is further shown by the following orders and appointments subsequently issued by then PPA General Manager Rogelio Dayan: 1. it was only after the reorganization and upon the issuance of the August 11.charged of any administrative case. 479-88 dated September 28. through Assistant Director Guillermo R. together with the decision of the department head. authorized by law. In fact. 292 (otherwise known as the Administrative Code of 1987). which provides inter alia: “SEC 19. Petitioners theorize that the appointment of respondent as Resource Management Division Manager did not become final until the protest filed against her was favorably decided in her favor by the CSC. The appointing authority has a wide latitude of choice subject only to the condition that the appointee should possess the qualifications required by law. shall be submitted to the Commission for appropriate action within 30 days from the date of its issuance. such appointment shall become ineffective in case the protest is finally resolved against the protestee. Resource Management Office (SG-19).” Furthermore. it was precisely because of the said reorganization that respondent applied to the higher position of Division Manager II. Likewise. Antithetically. 1988 Resolution of the PPA Appeals Board when respondent was demoted to the lower position of Administrative Officer. from among the six (6) contenders to the said post. she was displaced from her position as an “aftermath of the PPA reorganization. 2.” The petition is unmeritorious. the Comparative Data Sheet accomplished by the PPA Reorganization Task Force itself shows that respondent ranked No. the appointment. though contested. 1988 by then PPA General Maximo Dumlao. the PPA reorganization in 1988 has nothing to do with respondent’s demotion from the contested position of Manager II. However. he shall be reverted to his former position. in which case. the implementation of which having been carried out with utmost good faith. 1988 by the CSC.

respondent was demoted. Of the CSC MC No. the petitioner had no pending administrative or criminal case at the time of her appointment as Manager. Par. to the position of Manager II. Therefore. 1988 Resolution of the PPA Appeals Board which “upholds the appointment of Ramon A. Appointment of petitioner Anino. A (1. effective February 1. Equally questionable are the grounds for respondent’s demotion stated in the August 11. contrary to petitioners’ claim. 1988. s.” These grounds are incomprehensible for lack of discussion or explanation by the Board to enable respondent to know the reason for her demotion.October 21. Par. s. Unfortunately for petitioners. Par.03. 10.2 and Par. 1988. 46) upholding the appointment of the private respondent (Ramon Anino) as Division Manager. this Court cannot accord validity to the August 11. 1988. p. review. 1998 PPA Appeals Board Resolution was void for lack of evidence and proper notice to respondent. dated October 1. and 4.2. 5. 1988 sustaining petitioner Anino’s protest against respondent’s appointment. 1988. 1. A. As aptly held by the Appellate Court: “In the August 11. PPA Special Order No. “With respect to the CSC MC No. 1988 Resolution by the PPA Appeals Board (Ibid. 1986.. 2. 5. B. and c) Civil service eligibility. 3. she had a 1. A. Moreover. Stated differently. evaluation and recommendation of her appointment as Manager II. Anino as Resource Management Division Manager. Par 3. 1998 when the PPA Appeals Board Resolution was issued. b) the CSC MC No. “On eligibility. Appointment of respondent. Resource Management Division. 1986. and (3) Civil Service Eligibility. x x x. passed several committees created by the PPA. not by reason of the PPA reorganization in 1988. the processing. 1988 Resolution by the PPA Appeals Board was not supported by evidence. 1988. B.9 average performance rating compared to the private respondent who only got 2.” But how can it uphold his appointment when he was not yet appointed then? It bears stressing that he was appointed on a much later date . s. 492-88 dated October 21. "x x x “To us.2 and Par. the PPA Appeals Board could not uphold an appointment which was not yet existing. 10. 5. 10. the grounds against petitioner's (Julieta Monserate) appointment were: a) the CSC MC No. 3. to the position of Administrative Officer. 1988. x x x. but due to the PPA Appeals Board Resolution dated August 11. We uphold the Court of Appeals’ finding that the August 11. dated October 21. she has a Career Service Professional eligibility while the private respondent only has a First Grade Civil Service Eligibility. . (2) CSC MC NO. the August 11. Par. B. 1998 Resolution: “(1) CSC MC No. x x x. 1988 which officially reassigned respondent to the position of Administrative Officer. or more than two (2) months after August 11.2) and Par. 1.

par. he acquires a legal. right (to the position) which is protected not only by statute. and cannot be taken away from him either by revocation of the appointment. Respondent’s security of tenure guaranteed under the 1987 Constitution [Article IX-B. to the lower position of Administrative Officer. She did not even know that she was demoted until after she received a copy of the of the Special Order No. it is indubitable that substantial and procedural irregularities attended respondent’s demotion from the position of Manager II. she was not furnished either a copy of the resolution."[23] We now delve on the backwages in favor of respondent. Resource Management Division. 1988. it merely restored her appointment to the said position to which her right to security of tenure had already attached.[22] Parenthetically. her demotion. She was not at all given the oppurtunity of defending herself before the Appeals Board. tantamount to a revocation of her appointment as Manager II. The resolution sustained the private respondent’s appointment as Division Manager even if on August 11.“She added that she was not aware of any proceeding on her demotion as a Division Manager. As a matter of fact. (3)] should not be placed at the mercy of abusive exercise of the appointing power.[21] However. “Furthermore. the petitioner did not receive or was not given a copy of the August 11. is a patent violation of her constitutional rights to security of tenure and due process. she said that the resolution of the PPA Appeals Board appears irregular. To be sure. Section 2. Here. no iota of evidence was ever established to justify the revocation of respondent's appointment by demoting her. 1988 that she was able to obtain a copy of the August 11. the moment the discretionary power of appointment is exercised and the appointee assumed the duties and functions of the position. As a matter of fact. he was appointed only on October 1. What she received instead was a Special Order dated September 29. 479-88. or by removal.[20] this Court emphasized that “once an appointment is issued and the moment the appointee assumes a position in the civil service under a completed appointment. the appointing authority has a wide latitude of discretion in the selection and appointment of qualified persons to vacant positions in the civil service. She was never notified of any proceeding. Civil Service Commission.”[19] From all indications.” Concededly. “In the case now before us. 1988 (should be October 21. he was not yet extended any appointment. In this jurisdiction. such appointment cannot anymore be revoked by the appointing authority and appoint another in his stead. “x x x. when the Court of Appeals reinstated respondent to her legitimate post as Manager II in the Resource Management Division. and with previous notice and hearing. except for cause. it was only upon her iniative sometime during the latter part of November. This matter becomes controversial because respondent assumed the lower position of Administrative Officer during the pendency of her protest against petitioner Anino’s appointment to the . In Aquino vs. except for cause. 1988 Resolution of the Appeals Board. but also by the constitution. "an appointment to a non-vacant position in the civil service is null and void ab initio. not merely equitable. 1988). 1988 already ordering her demotion. Indeed. The challenged Court of Appeals Decision ordered the reinstatement of respondent without awarding backwages. 1988 Resolution of the Appeals Board. if not null and void. her position as Manager II never became vacant since her demotion was void.

protesting the appointment. is not entitled to the emoluments attached to the office. In this respect. 1997. not having a good title.contested position. salary and other compensation attached to such office. he is nonetheless considered a de facto officer during the period of his incumbency. is legally entitled to the emoluments of the office.[25] In Monroy vs. takes the salaries at his risk and must. the petition is DENIED. therefore. SO ORDERED. cannot be applied squarely on the present case in view of its peculiar circumstances. While her assumption to said lower position and her acceptance of the corresponding emoluments cannot be considered as an abandonment of her claim to her rightful office (Division Manager). This rule. Anino is ordered to pay respondent Julieta Monserate backpay differentials pertaining to the period from the time he wrongfully assumed the contested position of Manager II up to his retirement on November 30.[26] this Court ruled that a rightful incumbent of a public office may recover from a de facto officer the salary received by the latter during the time of his wrongful tenure. account to the de jure officer for whatever salary he received during the period of his wrongful tenure. Respondent had assumed under protest the position of Administrative Officer sometime in the latter part of 1988. Such backpay differentials pertain to the difference between the salary rates for the positions of Manager II and Administrative Officer. which position she currently holds. as earlier discussed. THE GENERAL MANAGER. fees and other compensations attached to the office. even though he (the de facto officer) occupied the office in good faith and under color of title. The same must be paid by petitioner Anino corresponding from the time he wrongfully assumed the contested position up to the time of his retirement on November 30. 1997. 1997 is AFFIRMED with MODIFICATION in the sense that petitioner Ramon A. She was confirmed by the CSC. petitioner Anino retired from the service on November 30. even though such appointment or election may be irregular. while petitioner Anino’s appointment to the contested position is void. Since then. She is entitled only to backpay differentials for the period starting from her assumption as Administrative Officer up to the time of her actual reinstatement to her rightful position as Division Manager.Monserate filed . however.[27] this Court allowed a de facto officer to receive emoluments for actual services rendered but only when there is no de jure officer. Also. in good faith. and may in appropriate action recover the salary. 1997. TheBoard sustained the protest and appointed Anino in place of Monserate. A de facto officer. Monserate applied for the position of Manager II of the Resource Management Division. she has been receiving the emoluments. PHILIPPINE PORTS AUTHORITY (PPA) and RAMON ANINO vs. The challenged Decision of the Court of Appeals dated June 20. even if he occupied the office in good faith. a de facto officer. during his wrongful incumbency. Executive Secretary. she cannot recover full backwages for the period when she was unlawfully deprived thereof. JULIETA MONSERATE FACTS: The PPA was reorganized in 1988.[24] A de facto officer is one who is in possession of an office and who openly exercises its functions under color of an appointment or election. has had possession of the office and has discharged the duties pertaining thereto. Court of Appeals. thus: “x x x in cases where there is no de jure officer. the rule is that where there is a de jure officer. WHEREFORE.” In fine. a de facto officer who.Ramon Anino filed an appeal with the PPA Appeals Board. In the later case of Civil Liberties Union vs.

97794 May 13. respondents. except for cause When the CA reinstated Monserate to her post. the decision of the MSPB dated May 24. Gaga G. such appointment cannot anymore be revoked bythe appointing authority and appoint another in his stead. Her position as Manager II never became vacant since her demotion was void . LIMBACO. it merely restored her appointment to the saidposition to which her right to security of tenure had already attached. 1990 of respondent Civil Service Commission (CSC) dismissing petitioner's appeal for having been filed out of time and Resolution No. vs. the momentthe discretionary power of appointment is exercised and the appointee assumed theduties and functions of the position. No. and CRISTETO J.with the CSC a protest against Anino's appointment which was dismissed bythe CSC. 90-1001 promulgated on November 9. 1994 GAGA G.: This special civil action for certiorari impugns the decision promulgated on February 14. 91-215 dated February 11. as well as the Resolution No. KAPUNAN. 1990 of the Merit Systems Protection Board (MSPB) finding private respondent Cristeto Limbaco's appeal meritorious thereby revoking the petitioner's appointment as Chief Election Officer of the Precincts and Barangay Affairs Department of the Commission on Elections (COMELEC) and directing the Chairman of the COMELEC to appoint private respondent in petitioner's stead. The antecedent facts are as follows: . 1991 denying the petitioner's Motion for Reconsideration. CIVIL SERVICE COMMISSION. " an appointmentto a non-vacant position in the civil service is null and void ab initio . However. " EN BANC G. petitioner. The Solicitor General for public respondent. Mauna for and in her own behalf. 1990 denying the petitioner's Motion for Reconsideration. J.ISSUE: Was Monserate validly replaced by AninoHELD: The appointing authority has a wide latitude of discretion in the selection andappointment of qualified persons to vacant positions in the civil service. MAUNA.R. In this jurisdiction.

(Taduran vs. private respondent Cristeto J. Limbaco. 131 SCRA 66). the incumbent Assistant Chief Election Officer filed a protest against the petitioner's appointment before the COMELEC on the grounds that (1) he is more qualified than petitioner. in appointing protestee to the contested position. (2) he is next-in-rank as Assistant Chief Election Officer. 2 On December 28. the Chairman exercised this discretion. and this is the protestee. private respondent filed an appeal on March 15. forlack of merit. and if the vacancy is not filled by promotion. Precincts and voting Centers Division. The COMELEC en banc dismissed the private respondent's protest. and (3) he is more senior than petitioner. Felipe. the Commission on Elections (COMELEC) through Nancy H. and in the absence of showing that there was grave abuse of discretion. 1988 before the Merit System Protection Board (MSPB) of respondent Civil Service Commission reiterating the grounds earlier raised before the COMELEC. Gaga G. his judgment on the matter should not be interfered with. then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. Limbaco against the appointment of Atty. 3 Aggrieved by the said resolution. Mauna as Chief Election Officer of the Precincts and Voting Centers Division of the Election and Barangay Affairs Department (EBAD) of the COMELEC. . having been employed by the COMELEC since 1979. to borrow the words of the Supreme Court. Mauna as Chief Officer. (Luego vs. judgment was exercised on the principle that there is no mandatory nor peremptory requirement that persons next-in-rank are entitled to preference in appointment. What the law provides is that they would be among the first to be considered. the only condition being that the appointee should possess the qualifications required by the law. 1 Said appointment was approved by Celerina G. 143 SCRA 327) Let it be noted that both protestant-appellant and protestee-appellee possess the qualifications required of the position. Cristeto v. Manager of the Personnel Department. is a political question involving consideration of wisdom which only the appointing authority can decide. EBAD. on motion duly seconded. appointed petitioner Gaga G. the Commission resolved to dismiss the protest filed by Atty. if qualified. If he does. Madarang. reasoning that: Considering the choice as to who would be appointed to the contested position. 1987. Jr.On November 16. Civil Service Commission. Civil Service Commission. 4 Commenting thereon. In doing so. To that extent protestant may claim to be next-in-rank. alleged that: It is to be admitted that the position of protestant is the next lower position relative to the contested office. authorized representative of CSC. the COMELEC Chairman Ramon H. Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to his best lights. the same shall be filled by transfer or other modes of appointment. This is a political question involving consideration of wisdom which only the appointing authority can decide. This being so. But in actuality the appointing authority widened his choice to admit another one who is equally qualified within the department. Gotladera. the choice as to who would be appointed to the contested position became a political question involving consideration of wisdom which only the appointing authority (could) decide. 1987.

1990. 91-215 dated February 17. 7 Thereafter. 5 On February 14. Protesteeappellee joined the Election and Barangay Affairs Department in July 1985 whereas protestant first worked in said department only in October 1986. . 8 Petitioner moved for reconsideration but this was denied by the CSC in Resolution No. 1991. to which they all complied. 901001 dated November 9. Hence. 1992. the criteria of merit and fitness were considered. 6 Petitioner filed a motion for reconsideration of the said decision. ahead of protestant-appellant. the Solicitor General filed its Comment recommending that the petition be given due course and praying that public respondent CSC be granted a new period within which to submit its Comment. However. may not be used to revoke protestee-appellee's appointment. 1991. as a matter of policy seniority is not a decisive factor in the process of personnel recruitment or appointment. 13 we resolved to give due course to the petition and required the parties to file their respective memoranda. 1990. it is submitted that protestee-appellee Mauna has an added advantage. 14 The central issue raised for resolution in this petition is whether respondent Civil Service Commission committed grave abuse of discretion in revoking the appointment of petitioner and ordering appointment of private respondent in his place. What is important is that the appointee possesses the qualifications required for the position. Let it be noted that from the comparative qualifications of protestant-appellant and protestee-appellee (Appeal. public respondent CSC filed its Comment to the petition. the MSPB rendered its decision finding the appeal of private respondent meritorious. in point of seniority.The Chairman exercised this discretion. the appointment of appellee Atty. that he is better qualified than protesteeappellee. Cristeto Limbaco in his stead. 1991. the said respondent dismissed the appeal for being filed out of time. The fact that protestant-appellant is also qualified. 12 In our resolution of January 21. 9 Aggrieved by the foregoing resolution. On July 8. petitioner filed the instant petition for certiorari with prayer for preliminary injunction or restraining order. Further. 11 while private respondent Limbaco did likewise on May 9. Accordingly. He has been in the department (Election and Barangay Affairs Department (EBAD) where the contested position organizationally belongs. But. their qualifications are at par. 1990. p. the dispositive portion of which reads: WHEREFORE. his judgment on the matter should not be interfered with. petitioner appealed to public respondent CSC. in Resolution No. Commission on Elections is hereby directed to appoint appellant Atty. Protestant-appellant contends that the challenged appointment violated the constitutional requirement that appointments in the civil service shall be made only according to merit and fitness. To do so would be to encroach on the discretion vested solely in the appointing authority. and in the absence of showing that there was grave abuse of discretion. Gaga Mauna to the contested position is hereby revoked and the Chairman. although protestant Limbaco entered into the service of the Comelec in 1979. 1991. the Board finds the appeal meritorious. but the same was denied by the MSPB in its decision dated May 24. or even granting but without admitting. 2). 10 On October 10. premises considered.

and disapprove those where the appointees do not possess appropriate eligibility or required qualifications. If he does. That recognition alone . It will be in excess of its power if it substitutes its will for that of the appointing authority. except those presidential appointees. 16 The power of appointment is essentially discretionary and the CSC cannot substitute its judgment for that of the appointing power. the only condition being that the appointee should possess the qualifications required by law. police forces. members of the Armed Forces of the Philippines. If he does. Thereafter its participation in the appointment process ceases. will make it clear that all the Commission is actually allowed to do is check whether or not the appointee possesses the appropriate civil service eligibility or the required qualifications. In fact. even this Court cannot control the appointing authority's discretion as long as it is exercised properly and judiciously. 17 The CSC may only approve or disapprove the appointment after determining whether or not the appointee possesses the appropriate civil service eligibility or the required qualifications. Neither does it have the power to overrule such discretion even if it finds that there are other persons more qualified to the contested position. This is a political question involving consideration of wisdom which only the appointing authority can decide. "approves" or "disapproves" — an appointment made by the proper authorities. (Emphasis supplied) However. In support of said contention. in the leading case of Luego vs. Significantly. it not.Petitioner takes the position that public respondent has no authority to revoke his appointment on the ground that another person is more qualified and to direct the appointment of a substitute of its choice. Thus. a full reading of the provision. it is provided therein that the Commission shall have inter alia the power to: 9(h) Approve all appointments. 18 the Court ruled: Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to his best lights. Substituting its judgment for that of the appointing authority constitutes encroachment on the latter's discretion. whether original or promotional. The principles defining the power of the appointing authority vis-a-vis that of the Civil Service Commission are well-settled. No other criterion is permitted by law to be employed by the Commission when it acts on — or as the Decree says. xxx xxx xxx It is understandable if one is likely to be misled by the language of Section 9(h) of Article V of the Civil Service Decree because it says the Commission has the power to "approve" and "disapprove" appointments. It cannot order or direct the appointment of a successful protestant. 15 where we ruled that the authority of the CSC is limited to approving or disapproving an appointment. especially of the underscored parts. the Commission on Civil Service acknowledged that both the petitioner and the private respondent were qualified for the position in controversy. The CSC has no authority to revoke an appointment on the ground that another person is more qualified for a particular position. petitioner cites the case of Orbos vs. his appointment is approved. The CSC does not have the authority to direct the appointment of a substitute of its choice. then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. Civil Service Commission. and jailguards. firemen. it is disapproved. Thus. its duty being merely to attest appointments. Civil Service Commission. to positions in the civil service.

. It is well-settled that when the appointee is qualified. as a necessary reminder. subject to the only condition that the appointee should possess the qualifications required by law. al. To be sure. departure from the mandate of Luego by the Civil Service Commission after the date of the promulgation of this decision shall be considered contempt of this Court and shall be dealt with severely. This Court said: . the Civil Service Commission is ORDERED to desist from disregarding the doctrine announced in Luego v. Civil Service Commission and the subsequent decisions reiterating such ruling. We must therefore make the following injunctions which the Commission must note well and follow strictly. we must stress. The same doctrine was reiterated in the case of Central Bank vs. Civil Service Commission. al. To do so would be an encroachment on the discretion vested upon the appointing authority. including the . et. the bar does. The Commission on Civil Service has been duly warned. respondent CSC was reminded in no uncertain terms of the limits of its power to approve or disapprove appointments in the Civil Service. . Henceforth. it disobeys at its peril. one of the three most important touchstones of our democratic government. in view especially of the status of the contemner.. et. it had no authority to revoke the said appointment simply because it believed that the private respondent was better qualified for that would have constituted an encroachment on the discretion vested solely in the city mayor. As a creation of the Constitution. which expects full compliance with its decisions even if the Commission may not agree with them. One last time in Felipa Guieb vs. The Civil Service Commission should recognize that its acts are subject to reversal by this Court. it is this court that has been endowed with the exclusive and ultimate authority to interpret the laws of the land. as in this case. While we appreciate the fact that the Commission is a constitutional body. and often enough. Up to this point. The Commission has no authority to revoke an appointment on the ground that another person is more qualified for a particular position. An appointment is essentially within the discretionary power of whomsoever it is vested. that every department and office in the Republic must know its place in the scheme of the Constitution. Respondent CSC's further insistence in disregarding the choice of the appointment authority. It also has no authority to direct the appointment of a substitute of its choice. 21 . and all the other legal requirements are satisfied. Whatever the reasons for its conduct. . Henceforth. drew a stern rebuke from the Court in Lapinid vs. Regardless of the views of the respondent Commission. the Commission has no alternative but to attest to the appointment in accordance with the Civil Service Laws. and we see no reason why the Civil Service Commission does not. 20 thus: The Court believes it has stated the foregoing doctrine clearly enough. But we are no longer disposed to indulge that fiction. If it will not. . Civil Service Commission. for the Civil Service Commission not to understand them. 19 where it was stated: .rendered it functus officio in the case and prevented it from acting further thereon except to affirm the validity of the petitioner's appointment. Civil Service Commission. The bench does. the respondent Commission should be the last to trivialize the judiciary. then that is an entirely different matter and shall be treated accordingly. We note with stern disapproval that the Civil Service Commission has once again directed the appointment of its own choice in the case at bar. the Court has liniently regarded the attitude of the public respondent on this matter as imputable to a lack of comprehension and not to intentional intransigence.

should as much as possible. the questioned decisions of the Merit Systems Protection Board dated February 14. petitioner cannot be removed except for cause provided by law. but also by the Constitution [Article IXB. No costs. it is because of the higher objective they seek which is the protection of substantive rights of the parties. not override. Our people have entrusted to this Court the power to be the final arbiter of all questions of law and the rule of law demands that as disputes ought to reach an end in the interest of societal peace. every party-litigant should be afforded the amplest opportunity for the proper and just disposition of his cause. it affirmed the same and dismissed the petitioner's appeal for being filed out of time. 101646 February 13. 23 As held by the Court in a number of cases: . be decided on their merits and not on technicality. EN BANC G. and with previous notice and hearing. he acquires a legal. 1990 and May 24. interpretation of the rules becomes imperative and technicalities should not be resorted to in derogation of the intent and purpose of the rules which is the proper and just determination of litigation. 1990 and February 11. 1992 . If the rules are intended to ensure the orderly conduct of litigation. Furthermore. 24 WHEREFORE. While it is desirable that the Rules of Court be faithfully and even meticulously observed. 1987. not merely equitable right (to the position). Well-entrenched is the rule on security of tenure that such an appointment is issued and the moment the appointee assumes a position in the civil service under a completed appointment. . . which is protected not only by statute.fundamental law itself. Litigations. when the public respondent was asked to review the decision of the MSPB dated February 14. or by removal. free from the constraints of technicalities. SO ORDERED. which often times requires throwing light to the many intersecting shadows that blur the boundaries of power of our different branches of government. and thereby defeat their very aims. for they are adopted to help secure. as a civil service employee with a permanent appointment. except for cause. Assuming for the sake of argument that the petitioner's appeal was filed out of time. technical sense. No. and the petitioner is hereby declared to be entitled to the office in dispute by virtue of his permanent appointment thereto dated November 16. Because there is no vested right in technicalities. 1990 and the resolutions of respondent Civil Service Commission dated November 9. Section 2. . As has been the constant rulings of this Court. 1991 are hereby set aside.R. in meritorious cases. not literal. 1990 and May 24. and the rules of procedure ought not to be applied in a very rigid. substantial justice. a liberal. paragraph (3)] and cannot be taken away from him either by revocation of the appointment. . 22 Finally. To undermine the authority of this Court as the final arbiter of legal disputes is to foster chaos and confusion in our administration of justice. Dismissal of appeals purely on technical grounds is frowned upon. 1990. submission should follow this court's final fiat. courts should not be so strict about procedural lapses that do not really impair the proper administration of justice. it is within the power of this Court to temper rigid rules in favor of substantial justice.

and moreover she had been in the service for thirty-five years. attitude and . Julia P. 1990. Mantala. Dacanay for private respondents. 1989. Mantala's appointment as Division Chief permanent. denied. of the Department of Health. C. It appears that sometime in July. however. This decision the Department of Health appealed to the Civil Service Commission. a motion for reconsideration of the aforementioned decision of the Merit Systems Board which was. 1989. vs. Judge. however. However. 1988. It declared "that insofar as overall rating of the qualification. and DR. REGINO. or more precisely on January 8. the Board rendered a verdict adversely to Dr.: At issue in this certiorari proceeding is (a) the validity of the assumption of jurisdiction by the Regional Trial Court over the matter of who is entitled. as well as (b) the correctness of said Court's decision on the question. Regional Trial Court of Quezon City. Secretary Bengzon made Dr.DR. Dr. MANTALA. IGNACIO L. Some three weeks later. Mantala and in Dr. On a motion for reconsideration. Regino claimed that it was she to whom the appointment should have been extended since the post of Medical Officer III then held by her was next-in-rank to the office in question. was given by the Secretary of Health a temporary appointment to the then vacant position of Division Chief. 1990 (No. That temporary appointment was shortly made subject to a formal protest filed by Dr. Secretary Bengzon thereupon took the case up to the Civil Service Commission. NARVASA. Regino appealed to the Merit Systems Board of the Civil Service Commission. Dr. Monitoring and Evaluation Division of the TB Control Service. the Commission dismissed the appeal and affirmed the decision of the Merit Systems Board in Dr. HON. set aside the resolution of dismissal and upheld Dr. MARIQUITA J. to a contested position in the Department of Health. Regino with the Committee on Evaluation and Protest of the Department of Health. on February 12. respondents.J. Araceli Baviera for petitioner. He also filed. 90-1012 dated November 14. Regino's favor. the Committee on Evaluation and Protest ruled adversely to her and upheld the Health Secretary's appointment of Dr. Mariquita J. SALVADOR. Mantala's appointment. Mantala as Division Chief. by its Resolution No. 90-553). a private medical practitioner. under the law and rules governing the civil service. Medical Division III. JULIA P. petitioner. In its Resolution dated June 14. On December 14. Office of Public Health. 1990. the Commission. Regino's favor. under date of January 23. Dr. 1990. Benjamin M.

1991 which — 1) annulled and set aside Dr. the Civil Service Commission. Hence this petition for review on certiorari in which it is prayed that the Regional Trial Court's decision be reversed. reassignment. transfer. Department of Health. . The petition has merit and will be granted. Mantala outscored Dr. . entitled "B. in its Resolution No. It was rendered without jurisdiction. promotion. Regino. and it runs afoul of established doctrine. pursuant to the constitutional authority on it conferred. reinstatement. Secretary Bengzon and other officials of the Department of Health. 1991 is fatally flawed. adopted and promulgated its "Rules on Administrative Disciplinary Cases and Rules on Protest Cases. In the meantime." and. 1989. approved. It consequently became final and executory. . Office for Public Health Services. to forward the latter's promotional appointment to the Civil Service Commission for approval pursuant to law. This resulted in a judgment dated August 30." inter alia sets out with particularity the Commission's jurisdiction broadly set forth in the Constitution. or order or ruling "may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof. detail. Dr. 90-1012." 4 On October 9. This was denied." which decision. 3 and to render decision in "any case or matter brought before it within sixty days from the date of its submission for decision or resolution. 2) directed the Secretary of Health to withdraw Dr. Rules on Protest Cases. the Commission declaring that it would "not delve into who is more qualified or who possesses more impressive qualifications" in deference to the discretion lodged by law in the appointing authority. employment status and qualification standards — are within the exclusive jurisdiction of the Civil Service Commission. Mantala's appointment as Chief of Medical Division III in the Tuberculosis Control Service. No appeal was taken from said Resolution No." Part B of said Rules. claiming that having an established right to the position of Division Chief in question. demotion and separation. 89-779. Q-90-5486). Mantala. The decision of August 30. Regino instituted an action of quo warranto and mandamus in the Regional Trial Court at Quezon City against Dr. The Constitution declares the Commission to be "the central personnel agency of the Government. Dr." and 3) declared Dr. 1990. Julia P. or more precisely on March 12. and cases involving "personnel actions" affecting employees in the civil service — including "appointment through certification." and that the appointing authority is not limited to promotion in filling up vacancies but may opt to fill them by the appointment of persons with civil service eligibility appropriate to the position. reemployment. 2 to promulgate its own rules concerning pleadings and practice before it or before any of its offices. she should be installed therein (Civil Case No. Regino and. Disciplinary cases. Mantala's appointment and "issue in its place one for .performance (was concerned). without delay. of course. . Mantala "not entitled to said office and ousting her therefrom . Dr." 1 having power and authority to administer the civil service. Regino filed a motion for reconsideration stressing her status as "a qualified next-in-rank" officer. Dr. to wit: .

Regino filed a motion for reconsideration. became final and executory by reason of Dr. It was thus error. or by reinstatement or by original appointment. the law. Regino appealed to the Merit Systems Protection Board from the decision of the Secretary of Health rejecting her protest and upholding the appointment of Dr. Mantala. Mantala in the Civil Service Commission. as already stated. will not generally be interfered with and must be sustained. 1990. Dr. Regino's cause fails. Even on the merits. and its legal opinion — that the appointing authority is not limited to promotion in filling up vacancies but may opt to fill them by the appointment of persons with civil service eligibility appropriate to the position — is entirely in accord with law. 6 . She ventilated her position in the appellate proceedings instituted by Dr. Said protest cases are described as follows: 5 (a) An appointment made in favor of another next-in-rank employee who is not qualified. in Dr. (b) An appointment made in favor of one who is not next-in-rank. because beyond its competence. The latter's decision may. in its Resolution of November 14. Regino which was in essence a protest against the appointment of Dr. subject to appeal to the Merit Systems Protection Board. Mantala outscored Dr. for the respondent Trial Court to take cognizance of the quo warranto and mandamus action instituted by Dr. (c) An appointment made in favor of one who is appointed by transfer and not next-in-rank. had earlier been submitted by Regino herself to the civil service adjudicatory system laid down for the purpose in accordance with the Constitution. It was only after the Resolution of November 14. Mantala. 3. Regino" — is basically a factual one and may not be reviewed on certiorari. 1990. the now firmly established doctrine is that the discretion exercised by the appointing power in extending an appointment to a given position to one of two or more employees possessing the requisite minimum qualifications for the position. Such a stratagem cannot be allowed to succeed. Moreover. For another. be brought to the Supreme Court. in turn. the Commission's conclusion — "that insofar as overall rating of the qualification. When the Commission. whose decisions are in turn subject to appeal to the Civil Service Commission. attitude and performance (was concerned). eventually sustained Dr. in connection with the latter's attempt to overthrow the adverse judgment of the Board. and prescribes the procedure (Rule IV) governing protest cases. for that would constitute an encroachment on the discretion vested sole in the appointing authority. Mantala's appeal. Dr. These protest cases are decided in the first instance by the head of Department or agency. and the Commission's rules. Regino's failure to take an appeal therefrom — and evidently to remedy this fatal procedural lapse — that the latter thought of filing her quo warranto and mandamus action in the Regional Trial Court. — The Civil Service Commission shall exercise final and exclusive appellate jurisdiction over all cases decided by the Merit Systems Protection Board and the Civil Service Regional Offices involving contested appointments or promotions. this protest.Sec. if the employee making the protest is not satisfied with the written special reason or reasons given by the appointing authority for such appointment. Mantala's favor. and the Civil Service Commission has no authority to revoke the said appointment simply because it believes that another employee is better qualified. For one thing. Dr. Final Appellate Jurisdiction. Dr.

On appeal. SO ORDERED.WHEREFORE. allegedly for loss of confidence. the decision of the Regional Trial Court of August 30. 90-1012 dated November 14. is hereby ANNULLED AND SET ASIDE. The summary of intelligence information claimed that respondent was allegedly engaged in proxy betting as detailed in the affidavits purportedly executed by two customers of PAGCOR who claimed that they were used as gunners on different occasions by respondent. June 19. Costs against private respondent. is hereby declared to be determinative and conclusive of the controversy at bar and. 92-1283 which affirmed the decision of the MSPB. DECISION REGALADO. The two polygraph tests taken by the latter also yielded corroborative and unfavorable results. On February 17. respondent Salas was appointed by the PAGCOR Chairman as Internal Security Staff (ISS) member and assigned to the casino at the Manila Pavilion Hotel. but the same was denied. must now be forthwith executed. 1997] CIVIL SERVICE COMMISSION and PHILIPPINE AMUSEMENT AND GAMING CORPORATION. respondent Salas submitted a letter of appeal to the Chairman and the Board of Directors of PAGCOR. 1991. 1991. 92-1283 of the Civil Service Commission (CSC) and ordered the reinstatement of herein private respondent Rafael M. his employment was terminated by the Board of Directors of PAGCOR on December 3. No. 1992. On December 23. 1990 of the Civil Service Commission upholding Dr. requesting reinvestigation of the case since he was not given an opportunity to be heard. respondent was not dismissed from the service but his term of office merely expired. SALAS. 38319 which set aside Resolution No.[1] The records disclose that on October 7.[2] . after a covert investigation conducted by the Intelligence Division of PAGCOR. as a confidential employee. in CA-G. but without prejudice to the filing of administrative charges against him if warranted. dated September 14. petitioners. 123708.: The present petition for review on certiorari seeks to nullify the decision of the Court of Appeals. Salas with full back wages for having been illegally dismissed by the Philippine Amusement and Gaming Corporation (PAGCOR). and Resolution No. respondent. if not yet carried out. which has long since become final and executory.R. SP No. Mantala's appointment to the contested position. he appealed to the Merit Systems Protection Board (MSPB) which denied the appeal on the ground that. 1995. However. vs. RAFAEL M.R. EN BANC [G. J. 1991. 1989. the CSC issued Resolution No.

which is premised on and calls for the resolution of the sole determinative issue of whether or not respondent Salas is a confidential employee. They additionally contend that the Court of Appeals erred in applying the "proximity rule" because even if Salas occupied one of the lowest rungs in the organizational ladder of PAGCOR. 1-95 which took effect on June 1. the appellate court applied the "proximity rule" enunciated in the case of Griño. 1995. Rule XX of the Revised Civil Service Rules. respondent Salas argues that it is the actual nature of an employee's functions. the court of Appeals rendered its questioned decision with the finding that herein respondent Salas is not a confidential employee. he performed the functions of one of the most sensitive positions in the corporation. Section 2. and that while Presidential Decree No. et al. his term of office had expired. as a member of the Internal Security Staff of PAGCOR. Court of Appeals. 1869 may have declared all PAGCOR employees to be confidential appointees. 1869 which created the Philippine Amusement and Gaming Corporation expressly provides under Section 16 thereof that all employees of the casinos and related services shall be classified as confidential appointees.[5] The Supreme Court has classified PAGCOR employees as confidential appointees.[6] We find no merit in the petition and consequently hold that the same should be. (3) CSC Resolution No. Tomas. 1869 has been superseded and repealed by Section 2(1).[3] the case was referred to the Court of Appeals pursuant to Revised Administrative Circular No. vs. Hence this appeal. has declared employees in casinos and related services as confidential appointees by operation of law. such executive pronouncement may be considered as a mere initial determination of the classification of positions which is not conclusive in case of conflict. in a resolution dated August 15. On September 14. respondent Salas was not dismissed from the service but. et al. according to petitioners. In so ruling. hence he may not be dismissed on the ground of loss of confidence. instead. . which was then in force when Presidential Decree No. in light of the ruling enunciated in Tria vs. However. and (4) Based on his functions as a member of the ISS.[4]. as it is hereby. 1991. Whence. 1869 creating the Philippine Amusement and Gaming Corporation was passed. which determines whether or not a position is primarily confidential. 1995. dated July 11. and not his designation or title. is a confidential employee for several reasons. et al. denied. promulgated pursuant to the provisions of Section 16(e) of Republic Act No. 1995. Civil Service Commission.Respondent Salas initially went to this Court on a petition for certiorari assailing the propriety of the questioned CSC resolution. 2260 (Civil Service Act of 1959).. viz. On the other hand. (2) In the case of the Philippine Amusement and Gaming Corporation vs. 91-830. private respondent occupies a confidential position. Petitioners aver that respondent Salas. et al. It likewise held that Section 16 of Presidential Decree No. Article IX-B of the 1987 Constitution. Sto.: (1) Presidential Decree No.

[7] This is not completely correct. has declared the position to be primarily confidential. and shall be governed only by the personnel management policies set by the Board of Directors.[9] At first glance. In reversing the decision of the CSC.provided that "upon recommendation of the Commissioner. whether technical. Prior to the passage of the aforestated Civil Service Act of 1959.'" While such executive declaration emanated merely from the provisions of Section 2." On the strength of this statutory declaration. primarily confidential. the same cannot be said with respect to the last portion of Section 16 which provides that "all employees of the casino and related services shall be classified as 'confidential appointees. When Republic Act No. An in-depth analysis. hence there is no act of dismissal to speak of but a mere expiration of a confidential employee's term of office. Book V of Executive Order No." However. 292 or the Administrative Code of 1987. upon recommendation of the Commissioner of Civil Service. secondly in the absence of such declaration. Rule XX of the implementing rules of the Civil Service Act of 1959. and. modified or deemed repealed by the 1987 Constitution and Executive Order No. 2260 was enacted on June 19. there were two recognized instances when a position may be considered primarily confidential: Firstly. rules and regulations. All employees of the casinos and related services shall be classified as 'confidential' appointees. 1869 may no longer be applied in the case at bar because the same is deemed to have been repealed in its entirety by Section 2(1). Article IX-B of the 1987 Constitution. such that a complaint for illegal dismissal will not prosper in this case for lack of legal basis. 1869 was predicated thereon. professional or managerial are exempt from the provisions of the Civil Service Law. with the text thereof providing as follows: "All positions in the corporation.[8] This later enactment only serves to bolster the validity of the categorization made under Section 16 of Presidential Decree No. the power to declare a position as policydetermining. On this point. primarily confidential or highly technical as defined therein has subsequently been codified and incorporated in Section 12(9). 292 (Administrative Code of 1987). such classification is not absolute and all-encompassing. petitioner PAGCOR terminated the services of respondent Salas for lack of confidence after it supposedly found that the latter was engaged in proxy betting. 1869. however. Be that as it may. the President may declare a position as policy-determining. 1959. 1869. when the President. when by the nature of the functions of the office there exists "close intimacy" between the appointee and appointing power which insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state. In upholding the dismissal of respondent Salas. administrative. the CSC ruled that he is considered a confidential employee by operation of law. it would seem that the instant case falls under the first category by virtue of the express mandate under Section 16 of Presidential Decree No. we approve the more logical interpretation advanced by the CSC to the effect that "Section 16 of PD 1869 insofar as it exempts PAGCOR positions from the provisions of Civil Service Law and Rules has been amended." It appears that Section 16 of Presidential Decree No. the Court of Appeals opined that the provisions of Section 16 of Presidential Decree No. Section 5 thereof provided that "the noncompetitive or unclassified service shall be composed of positions expressly declared by law to be in . or highly technical in nature. of the second category evinces otherwise.

The Senator urged that since the Constitution speaks of positions which are 'primarily confidential. it is not within the power of Congress to declare what positions are primarily confidential or policydetermining.' Hence. thus: "The change from the original wording of the bill (expressly declared by law x x x to be policydetermining. and if the position is 'highly confidential' then the President and the Civil Service Commissioner must implement the law. shall be made only according to merit and fitness. that as originally worded the proposed bill gave Congress power to declare by fiat of law a certain position as primarily confidential or policy-determining. except as to those which are the policy-determining. vs. by executive fiat." Likewise.) to that finally approved and enacted ('or which are policy-determining. at least since the enactment of the Civil Service Act of 1959. In case of conflict then it is the Court that determines whether the position is primarily confidential or not" (Italics in the original text). in Section 2. 2260 states that "the noncompetitive or unclassified service shall be composed of positions expressly declared by law to be in the non-competitive or unclassified service or those which are policy-determining.. Hence the dictum that. 807 states that "appointments in the Civil Service. The doctrinal ruling enunciated in Piñero finds support in the 1935 Constitution and was reaffirmed in the 1973 Constitution. or highly technical in nature. And the court in the aforecited case explicitly decreed that executive pronouncements. such as Presidential Decree No. primarily confidential. or highly technical in nature'. Section 1 of the General Rules in the implementing rules of Presidential Decree No. or the Civil Service Decree of the Philippines.[12] It may well be observed that both the 1935 and 1973 Constitutions contain the provision. 807. Article IX-B) of the Constitution. Hechanova.the non-competitive or unclassified service or those which are policy-determining. etc. et al. primarily confidential. the protection of Section 4. It must be so. 'It is the nature alone of the position that determines whether it is policy-determining or primarily confidential. Section 5 of Republic Act No. Article XII (now Section 2[3]. etc. et al. can be no more than initial determinations that are not conclusive in case of conflict. it is the nature of the position which finally determines whether a position is primarily confidential. Section 16 of Presidential Decree No. the Senator further observed. the matter should be left to the 'proper implementation of the laws. at the first instance. in nature') came about because of the observations of Senator Tañada. policy-determining. or highly technical in nature. or else it would then lie within the discretion of the Chief Executive to deny to any officer. 'But in positions that involved both confidential matters and matters which are routine.[11] In other words." In the case of Piñero. that "appointments in the Civil Service. as well as in the implementing rules of Presidential Decree No. or highly technical in nature. it is the appointing power that determines that: the nature of the position. which should not be the case. x x x who is going to determine whether it is primarily confidential?' Senator Tañada replied: 'SENATOR TAÑADA: Well. or highly technical in nature. shall be made only according to merit and fitness to be determined as far as practicable by . 1869 cannot be given a literally stringent application without compromising the constitutionally protected right of an employee to security of tenure. Article XII-B thereof. depending upon the nature of the position to be filled'. to be determined as far as practicable by competitive examination." Corollarily. primarily confidential. except as to those which are policy-determining. 1869. To a question of Senator Tolentino. policy-determining or highly technical. primarily confidential.[10] the Court obliged with a short discourse there on how the phrase "in nature" came to find its way into the law.

competitive examination. BERNAS. Which department of government has the power or authority to determine whether a position is policy-determining or primarily confidential or highly technical? FR. policy-determining or highly technical -. FR. to wit: "MR." Let it here be emphasized. it is always a question of fact. the phrase "in nature" was deleted. BERNAS. FOZ.to the effect that notwithstanding any statutory classification to the contrary. . Does not Commissioner Bernas agree that the general rule should be that the merit system or the competitive system should be upheld? FR.[14] We rule in the affirmative. The Supreme Court has constantly held that whether or not a position is policy-determining. Since the term 'highly technical' means something beyond the ordinary requirements of the profession. considering that from these later enactments. but the final decision is done by the court. It is not enough that the law calls it primarily confidential to make it such.[13] Book V of which deals specifically with the Civil Service Commission. I agree that that it should be the general rule. it is still the nature of the position. but if the law of the administrative agency says that a position is primarily confidential when in fact it is not. The question that may now be asked is whether the Piñero doctrine -. we might have a case where a position is created requiring that the holder of that position should be a member of the Bar and the law classifies this position as highly technical. MR. FOZ. primarily confidential or highly technical — as an exception — is to take it away from the usual rules and provisions of the Civil Service Law and to place it in a class by itself so that it can avail itself of certain privileges not available to the ordinary run of government employees and officers. primarily confidential or highly technical has been the source of practices which amount to the spoils system. The declaration that certain positions are policy-determining. as we have accordingly italicized them. The matter was clarified and extensively discussed during the deliberations in the plenary session of the 1986 Constitutional Commission on the Civil Service provisions. as may be ascertained by the court in case of conflict. FOZ. it is the nature of the duties which makes a position primarily confidential. in defining positions which are policydetermining. the Supreme Court has said before that a position which requires mere membership in the Bar is not a highly technical position.is still controlling with the advent of the 1987 Constitution and the Administrative Code of 1987. that is why we are putting this as an exception. primarily confidential or highly technical. BERNAS: The initial decision is made by the legislative body or by the executive department. The effect of a declaration that a position is policy-determining. For instance. that these fundamental laws and legislative or executive enactments all utilized the phrase "in nature" to describe the character of the positions being classified. primarily confidential or highly technical. which finally determines whether a position is primarily confidential. MR. MR. we can always challenge that in court. FOZ. The Supreme Court has always said that. However. it is determined not by the title but by the nature of the task that is entrusted to it.

This is not a denial of the requirement of merit and fitness" (Italics supplied). for that matter? There are other ways of determining merit and fitness than competitive examination. BERNAS. the Piñero doctrine continues to be applicable up to the present and is hereby maintained. It must be stressed further that these positions are covered by security of tenure. After quoting the foregoing passage from De los Santos. involving as it did employees occupying positions in various capacities in the Port Patrol Division of the Bureau of Customs.. et al. et al. Certainly. it trenchantly declared: "As previously pointed out. vs. (Stress supplied). Such being the case. merely exempts the position from the civil service eligibility requirement.[16] which held that: "Every appointment implies confidence. For instance. Mallare. the submission that PAGCOR employees have been declared confidential appointees by operation of law under the bare authority of CSC Resolution No. et al. The Court there held that the mere fact that the members of the Port Patrol Division are part of the Customs police force is not in itself a sufficient indication that their positions are primarily confidential. although they are considered non-competitive only in the sense that appointees thereto do not have to undergo competitive examinations for purposes of determining merit and fitness. respondent Court of Appeals correctly applied the "proximity rule" enunciated in the early but still authoritative case of De los Santos vs. the CSC itself ascribes to this view as may be gleaned from its questioned resolution wherein it stated that "the declaration of a position is primarily confidential if at all. there are no proven facts to show that there is any such close intimacy and trust between the appointing power and the appellees as would support a finding that confidence was the primary reason for the existence of the positions held by them or for their appointment thereto. As I have already said. primarily confidential or highly technical is to exempt these categories from competitive examination as a means for determining merit and fitness. it is extremely improbable that the service demands any such closed trust and intimate relation between the appointing official and. x x x" (Emphasis supplied). I have just mentioned a position in the Atomic Energy Commission. .[15] It is thus clearly deducible. In fact. Hechanova." Accordingly. We likewise find that in holding that herein private respondent is not a confidential employee. All it says is that there are certain positions which should not be determined by competitive examination. 91-830 must be rejected. but much more than ordinary confidence is reposed in the occupant of a position that is primarily confidential. that the primary purpose of the framers of the 1987 Constitution in providing for the declaration of a position as policy-determining. supra. Shall we require a physicist to undergo a competitive examination before appointment? Or a confidential secretary or any position in policy-determining administrative bodies.. This was reiterated in Piñero. The latter phrase denotes not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which ensures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state.FR. if not altogether apparent. the facts of which are substantially similar to the case at bar. not one or two members alone but the entire Customs patrol (Harbor Police) force. this classification does not do away with the requirement of merit and fitness. so that every member thereof can be said to hold 'primarily confidential' posts".

private respondent does not enjoy that "primarily close intimacy" which characterizes a confidential employee.It can thus be safely determined therefrom that the occupant of a particular position could be considered a confidential employee if the predominant reason why he was chosen by the appointing authority was. being in Pay Class 2 level only. the Chairman of PAGCOR. Although appointed by the Chairman. e. Taking into consideration the nature of his functions.[18] Based on the nature of such functions of herein private respondent and as found by respondent Court of Appeals. the element of trust between them is no longer predominant. the latter's belief that he can share a close intimate relationship with the occupant which ensures freedom of discussion. misbehavior. whereas the highest level is Pay Class 12. without fear of embarrassment or misgivings of possible betrayal of personal trust or confidential matters of state. d. his organizational ranking and his compensation level. coordinates with CCTV and/or external security as necessary for the prevention. refills and shoe boxes to the respective tables. illegal transactions and other anomalous activities among the employees and customers. Withal. to repeat. documentation or suppression of any unwanted incidents at the gaming and non-gaming areas.[17] Several factors lead to the conclusion that private respondent does not enjoy such "close intimacy" with the appointing authority of PAGCOR which would otherwise place him in the category of a confidential employee. where the position occupied is remote from that of the appointing authority. it is obviously beyond debate that private respondent cannot be considered a confidential employee. 3. performs duty assignments at the gaming and/or non-gaming areas to prevent irregularities. one is struck by the ordinary. card shuffling and final shuffling. as would ensure "freedom from misgivings of betrayals of personal trust. in turn. while it may be said that honesty and integrity are primary considerations in his appointment as a member of the ISS. routinary and . private respondent routinely — a. Obviously. An ISS members is subject to the control and supervision of an Area Supervisor who. As set out in the job description of his position. performs escort functions during the delivery of table capital boxes."[19] 2. to wit: 1. The latter is himself answerable to the Chairman and the Board of Directors. as the lowest in the chain of command. his position does not involve "such close intimacy" between him and the appointing authority. yields. that is. The position of an ISS member belongs to the bottom level of the salary scale of the corporation. As an Internal Security Staff member. b. only implements the directives of the Branch Chief Security Officer. ISS members do not directly report to the Office of the Chairman in the performance of their official duties. acts as witness/representative of Security Department during chips inventory. c. refills. or during transfer of yields to Treasury. reports unusual incidents and related observations/information in accordance with established procedures for infractions/mistakes committed on the table and in other areas.

it cannot be considered as controlling in the case at bar. EN BANC G. 1869 was never controverted nor raised as an issue therein. LINGAD." (Italics ours). HON. OCTAVIO HERNANDEZ and JESUS GARCIA.00 a month. The act that he is questioning is what he calls the arbitrary manner of his dismissal thereunder that he avers entitled her to damages under the Civil Code.P. "primarily" confidential in nature. RUFINO HECHANOVA. et al. Such circumstances merely reinforce the presumption of constitutionality of the law. petitioners-appellants. sometimes. That decree was mentioned merely in connection with its provision that PAGCOR employees hold confidential positions. The fact that.: . for the simple reason that the propriety of Section 16 of Presidential Decree No. Montoya is not assailing the validity of that law. 1967 ALEJANDRO FERRER. therefore. in his capacity as Commissioner of Customs and THE AUDITOR OF THE BUREAU OF CUSTOMS. J. respondents-appellees. in his capacity as Secretary of Finance. JOSE B. SO ORDERED. which provides that the employees of the PAGCOR hold confidential positions. the allegation of petitioners that PAGCOR employees have been declared to be confidential appointees in the case of Philippine Amusement and Gaming Corporation vs. Thus. Diokno for petitioners-appellants. Jose W. Even the fact that a statute has been accepted as valid in cases where its validity was not challenged does not preclude the court from later passing upon its constitutionality in an appropriate cause where that question is squarely and properly raised. What was there stated is as follows: "The record shows that the separation of the private respondent was done in accordance with PD 1869.[20] In addition. No. FOJAS.200.. HON. is misleading. the aforecited case was decided on the uncontested assumption that the private respondent therein was a confidential employee. ante. BENGZON. private respondent may handle ordinarily "confidential matters" or papers which are somewhat confidential in nature does not suffice to characterize his position as primarily confidential. L-24418 January 25.R. vs. Office of the Solicitor General for respondents-appellees. Court of Appeals. the impugned judgment of respondent Court of Appeals is hereby AFFIRMED in toto.[21] WHEREFORE. Evidently. Moreover. There thus appears nothing to suggest that private respondents's position was "highly" or much less. TEODORO P. the modest rank and fungible nature of the position occupied by private respondent is underscored by the fact that the salary attached to it is a meager P2..quotidian character of his duties and functions. J.

" Petitioners Ferrer. without costs. Also. Petitioner Octavio Hernandez was a regular and permanent employee as Police Private in the Port Patrol Division.This is an appeal in i petition for mandamus filed in the Court of First Instance of Manila by four employees dismissed from the Bureau of Customs to compel their reinstatement with payment of back salaries and attorney's fees. the same principle was applied. on December 12. the Commissioner of Customs and the Auditor of the Bureau of Customs. for "loss of confidence. 1958 a probational appointment as Special Police Officer in the Bureau of Customs. Petitioner Alejandro Ferrer was issued on June 25. petitioners appealed therefrom to this Court. on the finding that the positions from which petitioners had been dismissed belong to the classified service. 1963. Petitioner Teodoro P. 1965." Garcia had no civil service eligibility. Hernandez. and that petitioners. on the ground that his second grade civil service eligibility is not appropriate for the position of Special Agent in the Port Patrol Division of the Bureau of Customs. hence. on January 6. On June 25. wrote the Secretary of Finance on January 9. was dismissed by the Secretary of Finance and Commissioner of Customs in December 1962 for "loss of confidence. thru his father. his designation having been changed from Special Police Officer to Special Agent under Republic Act 2300 (Appropriation Act). On March 9. having been extended an appointment thereto. also for "loss of confidence. This latter appointment was attested to by the Civil Service Commissioner as provisional "pending determination as to whether the position occupied will be placed in the classified or unclassified position." Ferrer — who was not a civil service eligible — accepted said appointments and assumed office thereunder. as Special Police Officer. Petitioner Jesus Garcia was a regular and permanent employee in the Bureau of Customs. On June 20. from which he was separated from the service by the Secretary of Finance and Commissioner of Customs on June 20. on February 21. 1964 requesting reconsideration of his dismissal. 1959. Fojas was a permanent and regular employee in the Bureau of Customs having been extended an appointment as Special Agent. having been appointed thereto. and petitioner Hernandez. too. Bureau of Customs. the Secretary of Finance and the Commissioner of Customs dismissed him on the stated ground of loss of confidence. but said requests were denied. From said position he was separated or dismissed by the Secretary of Finance and the Commissioner of Customs on June 24. The Court of First Instance. And. not being civil service eligibles they must be deemed holders of appointments temporary in nature with no fixed tenure in office. rendered judgment dismissing the petition. . 1964 the petitioners filed the present suit in the courts a quo against the Secretary of Finance. except Fojas. 1963. Fojas and Garcia. 1963. Not a civil service eligible. he. 1964. terminable at the pleasure of the appointing power. requested the Secretary of Finance and Commissioner of Customs to reinstate them. 1963." Fojas was a second grade civil service eligible. he was extended an appointment as Special Agent in the same Bureau. As to Fojas. The Secretary has not replied to said letter.

their reinstatement must be ordered. held only a provisional appointment at the time he was dismissed. And as further held in said case. Said ruling applies to the present case. Their stay therein. since there is here likewise no evidence showing the nature of the civil service positions in question to be primarily confidential. Rule VI. R. as pointed out by the court below. that of Special Agent in the Port Patrol Division of the Bureau of Customs. As ruled by this Court. Secs. which they admittedly do not possess. This however is without prejudice to their replacement by civil service eligibles nor shall they continue in said positions as provisional appointees for more than thirty (30) days from receipt by their appointing officer of the appropriate register of eligibles. from which list their replacements should be chosen. L-22562. Piñero v. petitioners are ordered reinstated with payment of back salaries from the dates of their dismissal up to their reinstatement. 2260. for a permanent appointment implies civil service eligibility (Sigue v. December 27. who. it is the nature of the functions attached to the position that determines ultimately whether an administrative position is primarily confidential. Rayabaya L-11717. Hechanova. policy determining or highly technical. so that he is likewise without the requisite civil service eligibility. in Piñero v. 2260. Petitioner Ferrer. 1966. 13 and 14 of Revised Civil Service Rule. 24[c]. in the absence of proven facts to show such close intimacy and trust between the appointing power and the appointees as would support a finding that confidence was the primary reason for the existence of the positions held by them or for their appointment thereto. they are in legal contemplation actually not permanent appointees within the meaning of the Civil Service Law. Petitioners Fojas. but who were issued so-called permanent appointments.Appellants contend that their positions do not call for civil service eligibility on their part. From the above it follows that notwithstanding the designation of the petitioners Hernandez and Garcia as "permanent" appointees. however. 1959). should also continue only up to their replacement by eligibles and in no case beyond thirty (30) days from the receipt by the appointing officer of the certificate of eligibles. in the absence of said replacement. the judgment appealed from is hereby set aside. Hernandez and Garcia. or. as stated. Since "loss of confidence" is not a valid ground for dismissal of the aforesaid provisional appointees occupying positions in the classified service. petitioners shall continue in said positions but in no case beyond thirty (30) days from receipt by the . as stated. with the advent of the Civil Service Act of 1959 (R.A. not appropriate for the position he occupied. The same is true which petitioner Fojas because his second grade civil service eligibility is. Hechanova. with payment of back salaries. 1958).A. A provisional appointment is good only until replacement by a civil service eligible and in no case beyond thirty (30) days from the date of receipt by the appointing officer of the certificate of eligibles (Sec. effective June 19. therefore. since it is not questioned that except for this requisite they otherwise meet the requirements for appointment to the said regular positions in the competitive service. Wherefore. if they have been replaced by civil service eligibles. should be deemed provisional appointees in their respective positions. up to said replacement. arguing that there is no law passed by Congress declaring said positions as falling under the classified service. supra). are not possessed of the required civil service eligibility. They stress the point that said positions had been declared by executive orders1 as primarily confidential. October 22. said positions cannot be deemed primarily confidential in nature.

petitioner. with preliminary injunction filed by herein petitioner. Mayor Luis T. Cadiente. Petitioner appealed to the Civil Service Commission on January 7. 5 of R. 1986 MEDARDO AG. 210. On January 6. 1982. PEPITO. Lopez as City Legal Officer of Davao City. 7571. respondents. after being requested to submit his legal opinion on said matter. VICTOR CLAPANO." promulgated on August 23. On September 13. No costs. Victor Clapano as City Legal Officer on January 6." Subsequently. therein considering and recognizing herein petitioner Atty. Santos. City Auditor of Davao City. on April 7. still declined and refused to recognize petitioner as the one entitled to the disputed position of City Legal Officer of Davao City. City Treasurer of Davao City. FELIX N. Despite this resolution. No. et al. Cadierte vs. 54-58). 1972.A. the City Treasurer. CADIENTE. ALAMPAY. City Mayor of Davao City. Rollo) to the petitioner advising the latter that his services as City Legal Officer of Davao City "are dispensed with effective upon receipt of said letter" on the ground that the position of City Legal Officer was primarily confidential in nature. the new and then incumbent City Mayor Luis T. series of 1972. herein respondent. p. 1972 to take effect on said date. . 1971.A. pp. 1972. SANTOS. as the rightful City Legal Officer of Davao City (Rollo. SECOND DIVISION G. which rendered its decision in its lst Indorsement dated March 2. petitioner Cadiente was appointed by then Mayor Elias B. the City Council of Davao City passed Resolution No. The appointment was duly attested to and/or approved as "permanent" by the Civil Service Commission under Section 24(b) of R.proper appointing officer of the certificate of eligibles. This was the opinion rendered by the City Fiscal of Davao City on January 6. 43. Respondent City Mayor appointed respondent Atty. the public respondents in this case who are the City Mayor. and ATTY. quo warranto.R. which dismissed the petition for mandamus. and the City Auditor of Davao City. LUIS T. 1972. Medardo Ag.: Petition for review on certiorari of the decision of the Court of First Instance of Davao City. Branch I. 2260 as belonging to the non-competitive service. L-35592 June 11. sent a letter (Annex "H" to the Petition. Santos. vs. entitle Ag. MAXIMINO ASISTIDO. 1972. removal and/or dismissal of petitioner is "without cause and without due process" and that the position of City Legal Officer "is not included among those positions enumerated in Sec. in Civil Case No. 1972. therein holding that the termination. 2260. J.

Republic Act 2260. 1972. that the position of a City Legal Officer is one requiring that utmost confidence on the part of the mayor be extended to said officer. (Emphasis supplied). the phrase primarily confidential' "denotes not only confidence in the 'aptitude of the appointee for the duties of the office but primarily close intimacy which insures freedom of intercourse. and City Auditor be ordered to pay him all his salaries. as amended. 1972. 1972. L-22562. praying therein that: (a) respondent City Mayor be ordered to reinstate and/or allow him to continue performing his duties and functions as City Legal Officer of Davao City. 289). allowances. belong to the non-competetive service under paragraph 1. This Court held in the case of Claudio vs. which states that "no person shall be appointed or reinstated in the service if he is already 57 years of age. and attestation to the appointment of petitioner Cadiente as permanent under Section 24(b) of R. (b) the appointment of respondent Clapano be declared illegal and invalid. therefore. as it ruled that: The positions of Municipal Attorney. emoluments an other benefits due him as City Legal Officer from the time of his illegal dismissal until the termination of the suit. The approval of. 18 SCRA 4176 (citing De los Santos vs. Petitioner thus filed with the Court of First Instance of Davao City. petitioner Cadiente held office at the pleasure of respondent Mayor and the position belongs to the non-competitive service. 1972. The relationship existing between a lawyer and his client. August 31. Motion for reconsideration of said decision having been denied in an Order dated September 23. and therefore. In the Resolution of this Court dated December 28. by the Commissioner of Civil Service did not make the appointment permanent and the position fall under the competetive service. October 22.A. unless the President of the Philippines . Mallaare 87 Phil. primarily confidential. 40 SCRA 481. because the functions attached to the offices require the highest trust and confidence of the appointing authority on the appointee. 1972. Provincial Attorney and City Legal Officer are by their very nature. 7571. the position is primarily confidential. Subido. determines that he possesses special qualifications and his services are needed. in an Indorsement (Annex "O" to the Petition. section 5. L-30865.A. as amended. 1971. Civil Service Rule IV. and (c) respondents City Mayor. without embarrassment on freedom from misgivings of betrayals of personal trust on confidential matters of state.Meanwhile. wages. as the Court has found. 59) dated February 8.. . said petition was given due course. Branch I. As stated in the case of Pinero vs. 1966. If. for mandamus. p. the present petition to compel reinstatement and payment of back salaries. the trial court rendered its decision dismissing the aforestated case.. 728. quo warranto with preliminary injunction against the herein respondents. the Civil Service Commission returned the appointment of respondent Clapano to respondent City Mayor with the information that said office (Civil Service Commission) "overlooked the fact that the appointee was more than 57 years old at the time of his appointment and. was filed with this Court on October 7.. Civil Case No. City Treasurer. In resolving the merits of the instant case. 2260. Hechanova.. is one that depends on the highest degree of trust that the latter entertains for the counsel selected. authority for his appointment be first secured from the Office of the President pursuant to Section 6 of R.. We find as an undeniable fact that the position of a City Legal Officer is one which is "primarily confidential". whether a private individual or a public officer. as reinforced by Section 5. On August 23.

The main difference between the former the primarily confidential officer-and the latter is that the latter's term is fixed or definite. is not and cannot be deemed removed or dismissed therefrom. and the pleasure turns into a displeasure. 1965. such cessation entails no removal but an expiration of his term. 13 SCRA 591-596). WHEREFORE. When this event takes place. 1960. 1965. the latter is not removed or dismissed from office-his term merely expired. Villegas. March 31. at the time of his appointment or election. In said case We stated that: The tenure of officials holding primarily confidential positions ends upon loss of confidence. and thus their cessation involves no removal (Corpus vs. 26 SCRA 171. the incumbent is not removed or dismissed from office-his term merely expires. because their term of office lasts only as long as confidence in them endures. Cuaderno. as distinguished from a removal or dismissal. The termination of their official relation can be justified on the ground of loss of confidence because in that case their cessation from office involves no removal but merely the expiration of the term of office-two different causes for the termination of official relations recognized in the Law of Public Officers. therefore. he was not removed or dismissed. whose right thereto ceases upon expiration of the fixed term for which he had been appointed or elected. March 31. Reyes. In the case of Hernandez vs. L-17287.L. it was held— It is to be understood of course that officials and employees holding primarily confidential positions continue only for so long as confidence in them endures. speaking thru Justice J. 13 SCRA 591. in the case of Ingles vs. was further explained by this Court. and becomes fixed and determined when the appointing power expresses its decision to put an end to the services of the incumbent. because their term of office lasts only as long as confidence in them endures.B. and thus their cessation involves no removal. In the case at bar. when the respondent City Mayor of Davao terminated the services of the petitioner. 14 SCRA 548. The matter of expiration of a term of an officer holding a primarily confidential position. When such confidence is lost and the officer holding such position is separated from the service. be said that there was a violation of the constitutional provision that "no officer or employee in the civil service shall be suspended or dismissed except for cause as provided by law" (Article XII-B.The tenure of officials holding primarily confidential positions ends upon loss of confidence. June 30. upon expiration of said term. 1965. November 29. SO ORDERED. The foregoing merely elaborates what this Court. in much the same way as an officer. stressed in the case Corpus vs. whereas that of the former is not pre-fixed. Section 1(3). L-23721. There being no removal or dismissal it could not. . Cuaderno. L-20390. 1973 Constitution). Mutuc. L-23721. in this wise: When an incumbent of a primarily confidential position holds office at the pleasure of the appointing power. the petition is hereby DENIED for lack of merit. but indefinite.

2. rendered by the Court of Appeals in CAG. 141141 June 25. Respondent allegedly committed the following acts: Summary description of charge(s): Failure to prevent an irregularity and violations of casino and regulations committed by coofficers during his shift on October 9. RILLORAZA. petitioner. 1997.: Before us is a petition for review on certiorari praying for the reversal of the Decision dated August 31.R. conduct prejudicial to the best interest of the service.–2:00 p. DE LEON. He narrated the events that transpired: "When I reported for my 6:00 a. The facts are undisputed: On November 5. 51803. 1. No. a casino operations manager of petitioner PHILIPPINE AMUSEMENT AND GAMING CORPORATION (PAGCOR). to 2:00 p. Respondent duly filed his answer during an investigation conducted by petitioner’s Corporate Investigation Unit. 2001 PHILIPPINE AMUSEMENT AND GAMING CORPORATION (PAGCOR).SECOND DIVISION G.00). JR. 3. 1997. vs. .m. grave misconduct. he allowed the same officer to play beyond the allowable time limit of 6:00 a. The facilitation of the checks was not authorized by the Senior Branch Manager (SBM) or the Branch Manager for Operations (BMO) and the COM who facilitated the checks was not on duty then. administrative charges for dishonesty. he failed to stop the same officer from playing in the big tables and lastly. 1999. and loss of confidence..m. that morning I saw BM RICHARD SYHONGPAN beside TABLE #22 (BB) sitting at a coffee table inside Area 3. During his shift of 6:00 a. CARLOS P. He even facilitated one (1) of the personal checks with a value of Pesos: Five Hundred Thousand (P500.m. SP No. 1997. Rilloraza.000.m. on October 9. were brought against respondent Carlos P. He failed to stop a top-ranking officer from placing bets over and above the allowable limit of P5. on October 9.m.R. respondent.00 per deal. shift.000. four (4) personal checks with a total value of Pesos: Five Million (P5. J.000) were issued by a small-time financier/player and were facilitated by a COM with the Treasury Division which enabled the small-time financier/player to withdraw and receive said amount. 19991 as well as the Resolution dated November 29.000.

Since I’ve been out of Manila branch for 2 years and I’ve just been recalled to this branch for only more than 3 weeks. has a lot of chips worth about P7 Million in front of her and was betting P1. effective December 5.00 requested by a customer for endorsement to the Treasury. So I gave the approval to GAM QUITO for endorsement. It was until after noontime that BMO CORDERO returned my call and I reported the incident to him. SBM ADVINCULA returned my call and I reported the incident. I know we are allowed to authorize approval by raising the betting limits as per request of the playing customers. I approached and stopped him but he reacted that the bet was not his but to a CUSTOMER’S. CORAZON CASTILLO. the chips were encashed and I instructed GAM J. but still I received no reply. I respected him as one of our superior who very well know all our company’s policy esp. BM SYHONGPAN and COM GONZALES. In fact. I reconfirmed it again with COM GONZALES since he is more familiar with the systems and customers. which according to him. CASTILLO was used by BM SYHONGPAN and COM GONZALES to played [sic] in behalf of them the whole time.5M on the banker side which was over the maximum table limit by P500.00 after I verified and confirmed it with COM GONZALES. While during my rounds. After the game. kept it a secret from me. who at that time was still around. that’s how I found out from rumors within the gaming areas that this MS.m. With regards to the other 3 checks. I instructed OOS GILBERT CABANA to beep SBM VIC ADVINCULA and BMO DARIO CORDERO to call office "ASAP" because I wanted to relay this matter to them and there were no reply from both of them. and whom BM SYHONGPAN was referring to as the player. I then instructed GAM EUGENIO to return the money to BM SYHONGPAN. I’m not quite familiar with the systems and I don’t know this customer. So I believe it was not his bet but the said customer. the PAGCOR Board handed down a Resolution on December 2. At that time there was no way for me to stop the game because I saw the said customer.00 only. named MS.000. on the grounds of dishonesty. to verify regarding the said check and his immediate reply was "IT’S OKAY AND GOOD AND IT WAS GUARANTEED BY BM SYHONGPAN’. that an officer is not allowed to play at BIG table and are only allowed to bet with a maximum of P5. whom I don’t know her [sic] since I was out of Manila Branch 2 years. I have no knowledge about it since they. I did not accept the money because at that moment I was so mad that they involved me beyond my innocence since I am new in the branch. 1997.000. When I was doing my rounds again. I took his words because as a subordinate.000. 1997 dismissing respondent and several others from PAGCOR. was given by BM SYHONGPAN as ‘BALATO’. GAM RENE QUITO approached me with a check worth P500. I went down to the New VIP area and there I saw BM SYHONGPAN sitting at TABLE #3(BB) and he was holding house cards at that time.00. (sic) Finding Rilloraza’s explanation unsatisfactory. . 1997. I also relayed the incident to SBM REYES. EUGENIO to accompany BM SYHONGPAN to his room because he was too drunk. And I also learned that there were four checks endorsed during my shift which I facilitated only one check worth P500. The Board also denied respondent’s motion for reconsideration in a Resolution dated December 16.While inside the Area 3. When GAM EUGENIO returned from the room of BM SYHONGPAN he handed me some cash.000. When I went in the office. I instructed OOS CABANA to send messages again to SBM & BMO. When I was at home at around 3:30 p. grave misconduct and/or conduct prejudicial to the best interest of the service and loss of confidence. he answered me the same. I immediately approached COM CARLOS GONZALES.

the Commission issued Resolution No. and.6 Hence. viz: xxx xxx xxx (2) Appointments in the civil service shall be made only according to merit and fitness to be determined. the instant petition. 1998 until his actual reinstatement. to wit: WHEREFORE. 990465 dated February 16. except to positions which are policy-determining. bonuses and other benefits accruing to his position and those received by other casino operations managers for the period starting January 5.3 On appeal. primarily confidential.5 which was denied by the appellate court in the assailed resolution of November 29. The Commission denied petitioner’s motion for reconsideration in Resolution No.2 the dispositive portion of which provides.4 The appellate court ordered petitioner to reinstate private respondent with payment of full backwages plus all tips. by competitive examination. the appeal of Carlos P. 1998. The assailed Resolution of PAGCOR Board of Directors is thus modified. However. DESPITE THE GRAVITY OR SERIOUSNESS OF THE OFFENSES COMMITTED BY THE LATTER ON ACCOUNT OF THE EXTRAORDINARY RESPONSIBILITIES AND DUTIES REPOSED IN THE RESPONDENT BY VIRTUE OF HIS POSITION. the Commission finds appellant guilty only of Simple Neglect of Duty and metes out upon him the penalty of one month and one day suspension. Rilloraza is hereby dismissed. or highly technical. . 983033.Respondent appealed to the Civil Service Commission. The wellspring of stability in government service is the constitutional guarantee of entrance according to merit and fitness and security of tenure. II THE COURT OF APPEALS GRAVELY ERRED WHEN IT AFFIRMED THE CSC RESOLUTIONS MODIFYING THE PENALTY METED OUT ON RESPONDENT FROM DISMISSAL TO SUSPENSION. 1999. PAGCOR avers that: I THE COURT OF APPEALS GRAVELY ERRED WHEN IT FAILED AND REFUSED TO CONSIDER THAT RESPONDENT WAS A CONFIDENTIAL APPOINTEE OR EMPLOYEE WHOSE TERM HAD EXPIRED BY REASON OF LOSS OF CONFIDENCE. the Court of Appeals affirmed the resolution of the Commission. On November 20. Petitioner filed a motion for reconsideration. as far as practicable. 1999.

the same cannot be said with respect to the last portion of Section 16 which provides that "all employees of the casino and related services shall be classified as ‘confidential’ appointees. and. rules and regulations. we are basically asked to determine if there is sufficient cause to warrant the dismissal.7 xxx xxx xxx In the case at bar. Be that as it may. and shall be governed only by the personnel management policies set by the Board of Directors. We have already definitively settled the same issue in Civil Service Commission v. 292 (Administrative Code of 1987).(3) No officer or employee of the civil service shall be removed or suspended except for cause provided by law. 1869 may no longer be applied in the case at bar because the same is deemed to have been repealed in its entirety by Section 2(1). Petitioner argues that pursuant to the aforequoted provision. However. petitioner maintains. secondly.—All positions in the Corporation. administrative. Section 16 of Presidential Decree No. Article IX-B of the 1987 Constitution. 1869. such classification is not absolute and all-encompassing. whether technical. Rule XX of the Implementing Rules of the Civil Service Act of 1959. respondent is a primarily confidential employee. occupies a primarily confidential position. we approve the more logical interpretation advanced by the CSC to the effect that "Section 16 of PD 1869 insofar as it exempts PAGCOR positions from the provisions of Civil Service Law and Rules has been amended. Book V of Executive Order No. Such would not amount to a removal but only the expiration of his term. Hence. professional or managerial are exempt from the provisions of the Civil Service Law.9 to wit: In reversing the decision of the CSC. the Court of Appeals opined that the provisions of Section 16 of Presidential Decree No. the power to declare a position as policy-determining. . In this connection. All employees of the casinos and related services shall be classified as "Confidential" appointee. not merely the suspension. On this point. when the President. of respondent who.D. there were two recognized instances when a position may be considered primarily confidential: Firstly. No. upon recommendation of the Commissioner of Civil Service. primarily confidential or highly technical as defined therein has subsequently been codified and incorporated in Section 12(9). there should be no lingering doubt as to the true import of said Section 16 of P. This is not completely correct. when by the nature of the functions of the office there exists "close intimacy" between the appointee and appointing power which insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state. Salas. 18698 provides: Exemption. modified or deemed repealed by the 1987 Constitution and Executive Order No. in the absence of such declaration. 292 or the Administrative Code of 1987. he holds office at the pleasure of the appointing power and may be removed upon the cessation of confidence in him by the latter. However. Prior to the passage of the aforestated Civil Service Act of 1959. This later enactment only serves to bolster the validity of the categorization made under Section 16 of Presidential Decree No." While such executive declaration emanated merely from the provisions of Section 2. has declared the position to be primarily confidential. 1869.

[italics supplied] The doctrinal ruling enunciated in Piñero finds support in the 1935 Constitution and was reaffirmed in the 1973 Constitution. it would seem that the instant case falls under the first category by virtue of the express mandate under Section 16 of Presidential Decree No.’ Hence.At first glance. In case of conflict then it is the Court that determines whether the position is primarily confidential or not. 1869. It must be so. x x x who is going to determine whether it is primarily confidential?’ Senator Tañada replied: ‘SENATOR TAÑADA: Well. it is the nature of the position which finally determines whether a position is primarily confidential. can be no more than initial determinations that are not conclusive in case of conflict. in nature’) came about because of the observations of Senator Tañada. et al." xxx Hence the dictum that. To a question of Senator Tolentino. depending upon the nature of the position to be filled. the Senator further observed. in Section 2. such as Presidential Decree No. of the second category evinces otherwise.. 1959. etc.’ and if the position is ‘highly confidential’ then the President and the Civil Service Commissioner must implement the law. In other words. or else it would then lie within the discretion of the Chief Executive to deny to any officer. Section 5 thereof provided that "the non-competitive or unclassified service shall be composed of positions expressly declared by law to be in the non-competitive or unclassified service or those which are policydetermining. et al. that as originally worded the proposed bill gave Congress power to declare by fiat of law a certain position as primarily confidential or policy-determining. the matter should be left to the ‘proper implementation of the laws. at the first instance. 1869 cannot be given a literally stringent application without compromising the constitutionally protected right of an employee to security of tenure. Article XII-B thereof. as well as in the implementing rules of Presidential Decree No. by executive fiat. that . policy-determining or highly technical. And the Court in the aforecited case explicitly decreed that executive pronouncements. which should not be the case. or highly technical in nature. 2260 was enacted on June 19. the protection of Section 4.’ it is not within the power of Congress to declare what positions are primarily confidential or policydetermining. it is the appointing power that determines that: the nature of the position. ‘It is the nature alone of the position that determines whether it is policydetermining or primarily confidential. at least since the enactment of the Civil Service Act of 1959. Hechanova. primarily confidential. ‘But in positions that involved both confidential matters and matters which are routine. policy-determining or highly technical in nature." In the case of Piñero. however. vs. or the Civil Service Decree of the Philippines. etc.) to that finally approved and enacted (‘or which are policy determining. Article XII (now Section 2[3]. The Senator urged that since the Constitution speaks of positions which are ‘primarily confidential. Article IX-B) of the Constitution. 1869. the Court obliged with a short discourse there on how the phrase "in nature" came to find its way into the law. 807. When Republic Act No. An in-depth analysis. It may well be observed that both the 1935 and 1973 Constitutions contain the provision. Section 16 of Presidential Decree No. thus: "The change from the original wording of the bill (expressly declared by law x x x to be policy-determining.

primarily confidential or highly technical. primarily confidential. considering that from these later enactments. as we have accordingly italicized them. which finally determines whether a position is primarily confidential. in defining positions which are policy-determining.1âwphi1." Corollarily. The matter was clarified and extensively discussed during the deliberations in the plenary session of the 1986 Constitutional Commission on the Civil Service provisions."appointments in the Civil Service. but the final decision is done by the court. or highly technical in nature. However. Since the term ‘highly technical’ means something beyond the ordinary requirements of the profession. as may be ascertained by the court in case of conflict. except as to those which are policy-determining." Likewise. FOZ: Which department of government has the power or authority to determine whether a position is policy-determining or primarily confidential or highly technical? FR. MR. . except as to those which are policy-determining. shall be made only according to merit and fitness. shall be made only according to merit and fitness to be determined as far as practicable by competitive examination. Section 5 of Republic Act No. that these fundamental laws and legislative or executive enactments all utilized the phrase "in nature" to describe the character of the positions being classified. or highly technical in nature. 2260 states that "the non-competitive or unclassified service shall be composed of positions expressly declared by law to be in the non-competitive or unclassified service or those which are policy-determining. 807 states that "appointments in the Civil Service. we might have a case where a position is created requiring that the holder of that position should be a member of the Bar and the law classifies this position as highly technical. to wit: "MR. primarily confidential or highly technical. BERNAS: I agree that that should be the general rule. policy-determining or highly technical—is still controlling with the advent of the 1987 Constitution and the Administrative Code of 1987. FOZ: Does not Commissioner Bernas agree that the general rule should be that the merit system or the competitive system should be upheld? FR. to be determined as far as practicable by competitive examination. it is still the nature of the position. The Supreme Court has constantly held that whether or not a position is policy-determining. primarily confidential. it is determined not by the title but by the nature of the task that is entrusted to it." Let it be here emphasized. it is always a question of fact. the Supreme Court has said before that a position which requires mere membership in the Bar is not a highly technical position. Section 1 of the General Rules in the implementing rules of Presidential Decree No. or highly technical in nature.nêt The question that may now be asked is whether the Piñero doctrine—to the effect that notwithstanding any statutory classification to the contrary. the phrase "in nature" was deleted. For instance. primarily confidential. BERNAS: The initial decision is made by the legislative body or by the executive department. that is why we are putting this as an exception. We rule in the affirmative. Book V of which deals specifically with the Civil Service Commission.

the CSC itself ascribes to this view as may be gleaned from its questioned resolution wherein it stated that "the declaration of a position as primarily confidential if at all. the true test being the nature of the position. FOZ: The effect of a declaration that a position is policy-determining. BERNAS: As I have already said. Justice Regalado’s incisive discourse yields three (3) important points: first. Section 16 of P. It must be stressed further that these positions are covered by security of tenure. FR. the Piñero doctrine continues to be applicable up to the present and is hereby maintained. This is not a denial of the requirement of merit and fitness. 1869. All it says is that there are certain positions which should not be determined by competitive examination. MR. primarily confidential or highly technical—as an exception—is to take it away from the usual rules and provisions of the Civil Service Law and to place it in a class by itself so that it can avail itself of certain privileges not available to the ordinary run of government employees and officers. FR. policy-determining or highly technical amounts to no more than an executive or legislative declaration that is not conclusive upon the courts. FOZ: The declaration that certain positions are policy-determining. I have just mentioned a position in the Atomic Energy Commission. that the primary purpose of the framers of the 1987 Constitution in providing for the declaration of a position as policy-determining. BERNAS: The Supreme Court has always said that. merely exempts the position from the civil service eligibility requirement. and more to the point." It is thus clearly deducible. whether primarily confidential. for that matter? There are other ways of determining merit and fitness than competitive examination. if not altogether apparent. the exemption provided in the Charter pertains to exemption from competitive examination to determine merit and fitness to enter the civil service. the submission that PAGCOR employees have been declared confidential appointees by operation of law under the bare authority of CSC Resolution No. insofar as it declares all .D. but if the law of the administrative agency says that a position is primarily confidential when in fact it is not. policy-determining or highly technical. we can always challenge that in court. although they are considered non-competitive only in the sense that appointees thereto do not have to undergo competitive examinations for purposes of determining merit and fitness. Shall we require a physicist to undergo a competitive examination before appointment? Or a confidential secretary or any position in policy-determining administrative bodies.MR. Last. Second." Accordingly. primarily confidential or highly technical has been the source of practices which amount to the spoils system. primarily confidential or highly technical is to exempt these categories from competitive examination as a means for determining merit and fitness. 91-830 must be rejected. this classification does not do away with the requirement of merit and fitness. it is the nature of the duties which makes a position primarily confidential. [italics supplied] In fact. It is not enough that the law calls it primarily confidential to make it such. Such employees are still protected by the mantle of security of tenure. Such being the case. the classification of a particular position as primarily confidential. For instance.

Considerations vary so as to make a position primarily confidential. 5. 6. company policies and procedures. operations keys. is not absolutely binding on the courts. National interest has also been adjudged a factor. 2. Submits periodic reports to the Branch Manager. storage. Reviews. company policies and procedures. gaming equipment and paraphernalia. analyzes. Similar treatment was accorded to those occupying the posts of city legal officer12 and provincial attorney. Formulates marketing programs and plans of action for branch gaming operations in order to optimize revenue. Institutes and maintains a healthy. Ensures that quality and efficient service is extended to casino patrons in accordance with the established House Rules. and evaluates gaming table and slot machine operations reports. Takes measures to maintain and uphold the integrity of the casino games.10 Those tasked to provide personal security to certain public officials have also been deemed to hold primarily confidential positions11 for obvious reasons: the former literally are responsible for the life and well-being of the latter. 7. including income performance. 8. controls and supervises the Operations Division of the branch. 10. mentally alert. 3. Directs the setting-up. and accountable receipts and slips. .14 As casino operations manager. Controls the requisition. and highly motivated human resource for effective and efficient branch gaming operations performance. and issuance of playing cards. organized. closure or suspension of operations of gaming tables and slot machine units when deemed necessary.13 inasmuch as the highly privileged nature of the lawyer-client relationship mandates that complete trust and confidence must exist betwixt them.positions within PAGCOR as primarily confidential. 4. Ensures that gaming operations personnel adhere to the established House Rules. DUTIES AND RESPONSIBILITIES: 1. Directs the opening and closing of gaming table and slot machine areas. such that the country’s permanent representative to the United Nations was deemed to hold her post at the pleasure of the Chief Executive. He reports directly to the Branch Manager or to the Branch Manager for Operations in Metro Manila branches. Rilloraza’s duties and responsibilities are: JOB SUMMARY: The Casino Operations Manager directs. 9. Private secretaries are indisputably primarily confidential employees.

memoranda. company policies and procedures. Directs the daily and periodic performance evaluation of operations personnel. 15. Approves complimentary food and beverages to deserving players and evaluates the same for the possible extension of other amenities. and dropbox yield transactions. Issues directives. Orders the removal of customers or employees from the table gaming (sic) and slot machine area for justifiable reasons. 25. Settles disputes arising from gaming operations that have not been effectively settled by gaming managers and supervisors. 16. reported irregularities and violations of House Rules. and enforces decisions on the interpretation of House Rules. as well as the payment for progressive link super jackpot awards. 23. Requires written statements from operations personnel regarding disputes.11. 26. and procedures. . the Variance Committee. 20. Signs chip checks in behalf of the Branch Manager. Acts on customer complaints. 24. Chairs the Branch Infractions Committee. Upon the Branch Manager’s approval. suggestions. 22. issues preventive suspension to erring employees pending investigation. chip yield. 13. 12. Implements contingency plans in case of emergencies to ensure the security and safety of customers and staff. 27. Directs the cancellation of progressive link super jackpot combinations. Recommends to the Branch Manager the banning of undesirable players. and observations. Effects immediate changes in House Rules when deemed necessary. Directs and controls all activities of the Card Shuffling Center and the Card Distribution Room. 14. Approves table refill. 17. Issues or recommends disciplinary sanctions against delinquent operations personnel. 18. 21. company policies. subject to management review. and other ad hoc committees of the Operations Division. as well as commendations to deserving ones. and other official communications on branch gaming operations matters. 19.

17 the Legal Staff of the Provincial Attorney. All of these are "confidential" matters. likewise. we find that the Civil Service Commission did not err in declaring that Rilloraza was liable only for simple neglect of duty. but much more than ordinary confidence is reposed in the occupant of a position that is primarily confidential. It becomes unmistakable.15 Management and Audit Analyst I of the Economic Intelligence and Investigation Bureau.21 In this sense. His duties differ markedly from those we previously ruled as not primarily confidential: for instance. Necessarily. Performs other duties as may be designated by the Branch Manager. in Metro Manila branches. therefore.18 members of the Customs Police. as we defined it in De los Santos v. There is no showing of that element of trust indicative of a primarily confidential position. Lacking. 29. PAGCOR’s Internal Security Staff. Officers of the Department of Justice.23 to wit: Every appointment implies confidence. having analyzed both parties’ arguments. Clerk I. investigate charges against municipal judges. As the latter term is understood. 30. Assistant Solicitors in the Office of the Solicitor General often investigate malpractice charges against members of the Bar.20 and a Provincial Administrator. The Presiding and Associate Justices of the Court of Appeals sometimes investigate. he is a tier above the ordinary rank-andfile in that his appointment to the position entails faith and confidence in his competence to perform his assigned tasks.28. we have observed that: [i]ndeed. It does not appear from the record to whom the Branch Manager (or the Branch Manager for Operations. On this point. by designation of the Supreme Court. to the Branch Manager for Operations. there is no evidence to sustain a charge of dishonesty.19 the Senior Executive Assistant. respondent’s duties and responsibilities call for a great measure of both ability and dependability. Supervising Clerk I and Stenographer. Undoubtedly.22 We further note that a casino operations manager reports directly to the Branch Manager or. Mallare. is that amplitude of confidence reposed in him by the appointing power so as to qualify his position as primarily confidential. but such fact does not warrant the conclusion that the office or position of all government physicians and all Judges. it implies a: . though. the point of contention now is whether there was cause for the respondent’s separation from the service. Verily. In the first place. which are confidential in nature. Judges. The latter phrase denotes not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state. that the stratum separating the casino operations manager from reporting directly to the higher echelons renders remote the proposition of proximity between respondent and the appointing power. as well as the aforementioned assistant solicitors and officers of the Department of Justice are primarily confidential in character.16 a Special Assistant to the Governor of the Central Bank. physicians handle confidential matters. as the case may be) reports. They can hardly be characterized as routinary. Apprises the Branch Manager of any incident of doubtful nature and of developments that require his immediate attention. for he is required to exercise supervisory. Represents the Operations Division in Branch Management panel meetings. administrative complaints against judges of first instance. recommendatory and disciplinary powers with a wide latitude of authority. fiscals and court stenographers generally handle matters of similar nature.

but he never did. In the exercise of such discretion. Davao City Branch Manager of PAGCOR. Castillo estimated at around P7M. thus: Available proof unmistakably demonstrate that upon seeing BM Syhongpan playing at Table No. and in fact. respondent’s explanation fails to evince an inclination to lie or deceive. disposition to defraud.00 personal check for chips. Lack of honesty. However.00 per deal is not anchored on a correct premise. xxx xxx xxx xxx xxx The allegation that respondent Rilloraza allowed Syhongpan to place bets over and above the allowable limit of P5. cheat. if only to consummate respondent’s alleged dishonesty and grave misconduct by corruptly profiting from said incident. Syhongpan explained that he was merely playing for a customer. believes that respondent Rilloraza has judiciously performed all the acts necessary to protect the interests of PAGCOR and has acted as a prudent and reasonable man. probity or integrity in principle. This is non sequitur since Rilloraza never entertained the idea that Syhongpan was the gambler. Respondent Rilloraza believed in good faith that the bet was not BM Syhongpan’s but of Ms. after considering the parties involved and the circumstances of the case. respondent Rilloraza at once.24 In the case at bar. We find that the approval by Rilloraza of the exchange was done with caution and circumspect [sic]. lack of fairness and straightforwardness.Disposition to lie.00 has no application. he even reconfirmed the same with Gonzales as he is more familiar with the systems and the customers since he has been recalled to the branch for only three (3) . Syhongpan. untrustworthiness. Respondent Rilloraza has steadfastly maintained that he is of the belief that BM Syhongpan is not playing for himself but for Ms. Castillo.000. told him to stop. lack of integrity. 3BB. When he was approached by GAM Quito for endorsement of said personal checks per request of a customer. he could have easily pocketed the ‘balato’ given by Syhongpan. To be sure. Ms. The same reason exists for the claim that respondent allowed BM Syhongpan to play beyond 6:00 a. Castillo and should not be unduly punished for his honest belief. this Court. respondent became convinced of the clarification given by Branch Manager Syhongpan and he must have relied also on the word of said top ranking PAGCOR official whose representation must ordinarily be accepted and accorded respect and credence by a subordinate like him. the PAGCOR Adjudication Committee concluded that respondent actually attempted to stop the game where Syhongpan was playing which was even utilized as basis by the PAGCOR Board in dismissing respondent. returned the money. then the policy of not allowing any PAGCOR official to bet beyond P5. Thus.m. xxx xxx xxx xxx xxx On the facilitation of the swap of a P500. or defraud. if Syhongpan is merely acting for the real casino player. We concur with the appellate court’s finding.000. Lastly. After observing the large number of chips in front of Ms. or that he is entirely lacking the trait of straightforwardness. deceive.000. xxx More importantly. he immediately approached COM Gonzales to verify the check who assured him that the check was good and in fact guaranteed by Mr. deceive or betray. It is evident that respondent had the authority to approve the exchange of checks for gambling chips. Corazon Castillo who was seated also at the table.

27 In the imposition of the proper penalty. flagrant. as follows: (a) the minimum of the penalty shall be imposed where only mitigating and no aggravating circumstances are present.26 misconduct is "any unlawful conduct on the part of a person concerned in the administration of justice prejudicial to the rights of parties or to the right determination of the cause.1âwphi1. shameful’. (b) the medium of the penalty shall be imposed where no mitigating and aggravating circumstances are present. and (c) the maximum of the penalty shall be imposed where only aggravating and no mitigating circumstances are present. xxx These same findings negate the conclusion that respondent is guilty of misconduct or conduct prejudicial to the best interest of the service. In turn. absent is that element of intent to do wrong against petitioner. thus: Misconduct in office has been authoritatively defined by Justice Tuazon in Lacson v. After approving the endorsement. On the other hand. Differently propounded in Canson v. Physical illness b. does not necessarily imply corruption or criminal intent. however. Garchitorena. the former ratified or acquiesced to the action of respondent since there was no objection or complaint about the matter. In Manuel v. It is settled that misconduct.. In such cases. Section 54 thereof provides. both returned the call and were informed by respondent of the exchange of the chips for the check and presumably. Mitigating. misfeasance. It generally means wrongful. the term ‘gross’ connotes something ‘out of all measure.nêt The following circumstances shall be appreciated: a. he immediately tried to contact SBM Advincula and BMO Cordero. obstinate or intentional purpose. Good faith c. 1999 classifies simple neglect of duty as a less grave offense punishable as a first offense by suspension of one (1) month and one (1) day to six (6) months. it is a misconduct such as affects his performance of his duties as an officer and not such only as affects his character as a private individual. et al. The term. it has been said at all times. it is necessary to separate the character of the man from the character of the officer x x x. Jr. mitigating. not to be excused. intentional neglect and failure to discharge the duties of the office x x x. or malfeasance warranting removal from office of an officer. – In the determination of the penalties to be imposed. or Alternative Circumstances. Aggravating. By uniform legal definition.. must have direct relation to and be connected with the performance of official duties amounting either to maladministration or willful. CSC Resolution No.25 we defined misconduct. improper or unlawful conduct motivated by a premeditated. aggravating and alternative circumstances attendant to the commission of the offense shall be considered.weeks. Taking undue advantage of official position . Lopez in these words: "Misconduct in office has a definite and well-understood legal meaning. 991936 dated August 31. In the afternoon." From the facts given. to notify them of his action but none of them called back. Calimag. Extenuating. beyond allowance. the circumstances that may be properly considered are: Section 53.

or l. Use of government property in the commission of the offense g. Other analogous circumstances Nevertheless. MOBIL OIL PHILIPPINES & CIVIL AERONAUTICS ADMINISTRATION. INTERMEDIATE APPELLATE COURT. VASCO. was proper under the premises. Employment of fraudulent means to commit or conceal the offense j. BIDIN. SO ORDERED. PARUNGAO & ANTONIO C. as affirmed by the Court of Appeals. We find that the Civil Service Commission. vs. Taking undue advantage of subordinate e.R. WHEREFORE. in the appreciation thereof. correctly attributed good faith on the part of respondent. in the interest of substantial justice may take and consider these circumstances. FE LEVERIZA. 1988 PRIMITIVO LEVERIZA. petitioners. 1999. the modified penalty imposed by the Civil Service Commission on the respondent which was affirmed by the Court of Appeals. however. The Decision dated August 31. J. SP No.R. the petition is hereby DENIED for lack of merit. otherwise. Length of service in the government k. said circumstances shall not be considered in the imposition of the proper penalty. 1999 as well as the Resolution dated November 29. 51803 are hereby AFFIRMED. rendered by the Court of Appeals in CAG. No. the same must be invoked or pleaded by the proper party. Education.: . Habituality h. The Commission.d. Offense is committed during office hours and within the premises of the office or building i. THIRD DIVISION G. respondents. Accordingly. No costs. L-66614 January 25. Undue disclosure of confidential information f.

Inc. Exhibit "ICAA"). over a certain parcel of land at the MIA area.20. These three contracts are as follows: First Contract. and P. INC. at a monthly rental of P1. the facts of this case are as follows: Around three contracts of lease resolve the basic issues in the instant case.25 per square meter for the second 200 square meters. but reduced to 3. and Contract C — a lease contract of June 1. the area has been reduced to 3. INC. Exhibit 4-Leverizas' ). Second Contracts. on June 1. Vasco and Civil Aeronautics Administration. — For purposes of easy reference and brevity. Antonio C. — For purposes of easy reference and brevity. Inc. 1968 over that SAME parcel of land (Lot A.000 square meters. As found by the trial court and adopted by the Intermediate Appellate Court. Exhibit "I-Leverizas". the area leased is 4. and Contract C. is the same parcel of land. LEVERIZA.000 square meters of that SAME Parcel of land subject of Contract A above mentioned. consisting of approximately 4. with the noted difference that while in Contract A. CV No. and Plaintiff MOBIL OIL PHILIPPINES.000 square meters.. Fe Leveriza Parungao and Antonio C. 1976. Leveriza and plaintiff Mobil Oil Philippines. Leveriza. This is a "CONTRACT OF LEASE". 1968 between defendant Civil Aeronautics Administration and plaintiff Mobil Oil Philippines. 61705 entitled Mobil Oil Philippines. This is a "LEASE AGREEMENT".This is a Petition for Review on certiorari seeking the reversal of the decision of the Intermediate Appellate Court. No.R. executed between ROSARIO C. affirming in toto the decision of the trial court dated April 6. There is no dispute among the parties that the subject matter of the three contracts of lease above mentioned. and ROSARIO C. for a period of 25 years. containing an area of 3. as lessee.. and plaintiff MOBIL OIL PHILIPPINES. Leveriza over a parcel of land containing an area of 4. as lessor.. as lessor. Primitivo Leveriza Parungao. over 3. This is a "LEASE AGREEMENT". Psu 2031). this contract shall be referred to hereinafter as Contract A. at a monthly rental of P. executed between Defendant CIVIL AERONAUTICS ADMINISTRATION.502 square meters. Inc. — For purposes of easy references and brevity. . Third Contract. (Exhibit "C").20 per square meter for the rest. 1965 between defendant Rosario C. this contract shall be referred to hereinafter as Contract C. for a period of 29 (sic) years. as lessee on May 21. Contract B — a lease contract (in effect a sublease) of May 21. represented by Defendant CIVIL AERONAUTICS ADMINISTRATION. plaintiff-appellee vs. 1965. defendants-appellants. for a period of 25 years (Exhibit 'B'. (Exhibit "A". To summarize: Contract A — a lease contract of April 2. over the same parcel of land. 1984 in AC-G. but reduced to 3. for 25 years. on plan being a portion of Parcel. 1965. cross-defendant.502 square meters. represented by Defendant Civil Aeronautics Administration and Rosario C. LEVERIZA.000 square meters for 25 years. executed between the REPUBLIC OF THE PHILIPPINES. in Contract B and Contract C..00. for 25 years. at a monthly rental of P450. on April 2.000 square meters more or less.502 square meters. over the same parcel of land. Contract A. as lessee. as lessor. Primitive Leveriza. 1965 between the Republic of the Philippines. Third Division * dated February 29.500. this contract shall be referred to hereinafter as Contract B. Contract B.

defendants Leverizas' claim that Contract A which is their contract with CAA has never been legally cancelled and still valid and subsisting. .. Record on Appeal). 9599. Fe Leveriza Parungao. to wit: (1) Defendant Rosario C. 1966. Leveriza. xxx xxx xxx After trial. 1966 because of the cancellation of Contract A. this Court hereby renders judgment: 1. for durations of time that overlapped to two lessees. Declaring Contract A as having been validly cancelled on June 28.189. Defendant CAA asserts that Exhibit "A" is still valid and subsisting because its cancellation by Guillermo Jurado was ineffective and asks the court to annul Contract A because of the violation committed by defendant Leveriza in leasing the parcel of land to plaintiff by virtue of Contract B without the consent of defendant CAA. Defendant CAA further asserts that Contract C not having been approved by the Director of Public Works and Communications is not valid.It is important to note. Inc. (pp. her daughter by her second husband. her son by her first husband. the lower court render judgment on April 6. Plaintiff Mobil Oil Philippines. On the other hand. her heirs. for a clear understanding of the issues involved. and that plaintiff Mobil Oil Philippines. and has therefore ceased to have any effect as of that date. Rosario C.. are sued. Ordering defendant CAA to refund to defendants Leverizas the amount of P32. .. 1976 the dispositive part of which reads: WHEREFORE. shall be referred to hereinafter simply as the Plaintiff. after having thus considered the evidence of all the parties. Inc. and their memoranda and reply-memoranda. (now also deceased). 3. subject to the present litigation is concerned. to wit: (1) defendant Rosario C. For purposes of brevity defendant Civil Aeronautics Administration shall be referred to hereinafter as defendant CAA. Leveriza. leased the same parcel of land from two lessors. testimonial and documentary. Plaintiff in this case seeks the rescission or cancellation of Contract A and Contract B on the ground that Contract A from which Contract B is derived and depends has already been cancelled by the defendant Civil Aeronautics Administration and maintains that Contract C with the defendant CAA is the only valid and subsisting contract insofar as the parcel of land. 4. Declaring that Contract B has likewise ceased to have any effect as of June 28. For purposes of brevity. Declaring that Contract C was validly entered into on June 1. Leveriza and (2) defendant Civil Aeronautics Administration. that it appears that defendant Civil Aeronautics Administration as LESSOR.. This is the reason why her successor-in-interest.30 with 6% per annum until fully paid. 2. Inc. and Antonio C. for durations of time that also overlapped. the lessee in Contract A and the lessor in Contract B. as LESSEE. her second husband. is now deceased. namely: Defendants Primitive Leveriza. 1968.. Vasco. leased the same parcel of land. these defendants shall be referred to hereinafter as Defendants Leveriza. that it is Contract C between plaintiff and defendant CAA which should be declared void. and that it is still valid and subsisting.

1976. On June 2. WHICH CONTRACT WAS APPROVED.000. 17).1976 (Rollo. it was only the President of the Philippines or an officer duly designated by him who could execute the lease contract pursuant to Sec. the CAA filed a Motion for Reconsideration. 1976 (Rollo. On appeal. Hence. 9. 7. Dismissing defendants Leverizas' cross-claim against defendant CAA. REAL PROPERTY BELONGING TO THE REPUBLIC OF THE PHILIPPINES. EVEN WITHOUT APPROVAL OF THE THEN SECRETARY OF PUBLIC WORKS AND COMMUNICATIONS. No pronouncements as to costs. 1976. Ordering defendants Leverizas to refund to plaintiff the amount of P48. 8. Said motion was however denied on November 12. On July 27. Dismissing defendant CAA's counterclaim against plaintiff.00 with 6% interest per annum until fully paid. p. the Intermediate Appellate Court. the same is hereby affirmed in toto. rendered a decision on February 29. p. . finding no reversible error in the decision of the lower court dated April 6. 6. defendant Leveriza filed a motion for new trial on the ground of newly discovered evidence. 18). Dismissing defendant CAA's counterclaim against defendant Leverizas. the contract entered into between the CAA and Leveriza. The petitioners raised the following assignment of errors: I THE INTERMEDIATE APPELLATE COURT ERRED IN HOLDING THAT THE ADMINISTRATOR OF THE CIVIL AERONAUTICS ADMINISTRATION (CAA) HAD THE STATUTORY AUTHORITY TO LEASE.5. this petition. 1984. that the Airport General Manager has no authority to cancel Contract A. 1976. and that Contract C between the CAA and Mobil was void for not having been approved by the Secretary of Public Works and Communications. the dispositive part of which reads: WHEREFORE. TO CANCEL A LEASE CONTRACT OVER REAL PROPERTY OWNED BY THE REPUBLIC OF THE PHILIPPINES. averring that because the lot lease was properly registered in the name of the Republic of the Philippines. 567 of the Revised Administrative Code. II THE INTERMEDIATE APPELLATE COURT ERRED IN HOLDING THAT THE ADMINISTRATOR OF THE CIVIL AERONAUTICS ADMINISTRATION HAD STATUTORY AUTHORITY. Dismissing defendants Leverizas' four counterclaims against plaintiff. being in full accord with the trial court. lack of jurisdiction of the court over the case and lack of evidentiary support of the decision which was denied in the order of November 12. WITHOUT THE APPROVAL OF THE THEN SECRETARY OF PUBLIC WORKS AND COMMUNICATIONS.

BY THE SECRETARY. a subsequent lease agreement between CAA and Mobil Oil Philippines is null and void. The CAA further asserts that Contract "C" not having been approved by the Secretary of Public Works and Communications. respondent Civil Aeronautics Administration took the middle ground with its view that Contract "A" is still subsisting as its cancellation is ineffective without the approval of the Department Head but said contract is not enforceable because of petitioners' violation of its terms and conditions by entering into Contract "B" of sublease without the consent of CAA. that subject contracts should be executed by the President of the Philippines or by an officer duly designated by him. On its part." . Accordingly. is not valid (Rollo. pp.AS REQUIRED BY LAW. respondent Mobil Oil Philippines asserts that Contract "A" was validly cancelled on June 28. it maintains that Contract "C" is the only valid contract insofar as the parcel of land in question is concerned and that approval of the Department Head is not necessary under Section 32 (par. 43). Petitioners contend that Contract "A" is still subsisting because Contract "B" is a valid sublease and does not constitute a ground for the cancellation of Contract "A". 24) of the Republic Act 776 which expressly vested authority to enter into such contracts in the Administrator of CAA (Comment. while Contract "C". Rollo. 1966 and so was Contract "B" which was derived therefrom. p. p. III THE INTERMEDIATE APPELLATE COURT ERRED WHEN IT RULED THAT THE CONTRACT OF SUBLEASE (CONTRACT B) ENTERED INTO BETWEEN PETITIONERS' PREDECESSOR-IN-INTEREST AND RESPONDENT MOBIL OIL PHILIPPINES. There is no dispute that Contract "A" at the time of its execution was a valid contract. 83). The petition is devoid of merit. the CAA made a complete turnabout adopting the interpretation and ruling made by the trial court which was affirmed by the Intermediate Appellate Court (Court of Appeals). The issue narrows down to whether or not there is a valid ground for the cancellation of Contract "A. Petitioners anchor their position on Sections 567 and 568 of the Revised Administrative Code which require among others. in its comment filed with the Supreme Court. INC. 15-16). However. for lack of approval by the Department Secretary. Rollo. The issue therefore is whether or not said contract is still subsisting after its cancellation by CAA on the ground of a sublease executed by petitioners with Mobil Oil Philippines without the consent of CAA and the execution of another contract of lease between CAA and Mobil Oil Philippines (Contract "C"). WAS WITHOUT THE CONSENT OF THE ADMINISTRATOR OF THE CIVIL AERONAUTICS ADMINISTRATION. that the CAA Administrator has the power to execute the deed or contract of lease involving real properties under its administration belonging to the Republic of the Philippines without the approval of the Department Head as clearly provided in Section 32. paragraph (24) of Republic Act 776. At the other extreme. unless authority to execute the same is by law vested in some other officer (Petition.

For the Director: (Sgd. 1966 of Guillermo P. the provision of paragraph 7 of said Contract reads in full: 7. The Party of the Second part may transfer her rights to the leased premises but in such eventuality. 1966 Mrs. It is not disputed that the Leverizas (lessees) entered into a contract of sublease (Contract "B") with Mobil Oil Philippines without the consent of CAA (lessor). to serve vehicles going in and out of the airport. Paragraph 8 provides the sanction for the violation of the above-mentioned terms and conditions of the contract. your lease contract is hereby cancelled because of the violation of the stipulations of the contract. such transfer of rights shall have to respect the terms and conditions of this agreement. the consent of the Party of the First Part shall first be secured. JURADO Airport General Manager . Failure on the part of the Party of the Second Part to comply with the terms and conditions herein agreed upon shall be sufficient for revocation of this contract by the Party of the First Part without need of judicial demand.Contract "A" was entered into by CAA as the lessor and the Leverizas as the lessee specifically "for the purpose of operating and managing a gasoline station by the latter. Airport General Manager of CAA addressed to Rosario Leveriza. Jurado. Said paragraph reads: 8. Very truly yours. The cancellation of the contract was made in a letter dated June 28.) Illegible (Typed) GUILLERMO P. I would like to inform you that even without having sublet the said property the said contract would have been cancelled as per attached communication. as follows: (Letterhead) June 28. In any event. Rosario Leveriza Manila International Airport Madam: It has been found out by the undersigned that you have sublet the property of the CAA leased to you and by virtue of this." As regards prior consent of the lessor to the transfer of rights to the leased premises.

and also as a general policy to protect the government and the people. repealing an act of the Secretary which is beyond the authority of the Administrator. after the cancellation of Contract "A" is obviously an error. this Court has already ruled that the mistakes of government personnel should not affect public interest. specifically. The billing of the petitioners by the Accounting Department of the CAA if indeed it transpired. However. claiming that the Airport General Manager had no legal authority to make the cancellation. Ancheta (105 SCRA 391. Citing Article 1650 of the Civil Code. A careful scrutiny of said paragraph of Contract "A" clearly shows that it speaks of transfer of . and it is evident from the records that the Airport General Manager signed "For the Director." Under the circumstances. however. 108-110). It is further contended that even granting that such cancellation was effective. 151). ordered the CAA to refund to the petitioners the amount of rentals which was not due from them with 6% interest per annum until fully paid. As correctly found by the Court of Appeals. the sublease of the property by the lessee without the consent of the lessor. the Director of Civil Aeronautics Administration who could validly cancel the contract. Petitioners further assail the interpretation of Contract "A". and requires no prior consent of CAA to perfect the same. They do admit. not to mention the unassailable fact that such act was subsequently affirmed or ratified by the Director of the CAA himself (Record on Appeal. the approval of said Department Head is no longer necessary if not redundant. errors of government personnel in the performance of their duties should never deprive the people of the right to rectify such error and recover what might be lost or be bartered away in any actuation. there is no question that such act enjoys the presumption of regularity. p. it has been held that as a matter of law rooted in the protection of public interest. pp. deal or transaction concerned.Respondent Leverizas and the CAA assailed the validity of such cancellation. They maintain that it is only the Secretary of Public Works and Communications. mainly based on the violation of its terms and conditions. they assert that the prohibition to sublease must be expressed and cannot be merely implied or inferred (Rollo.necessity for a prior consent interprets the first sentence of paragraph 7 of Contract "A" to refer to an assignment of lease under Article 1649 of the Civil Code and not to a mere sublease. Such argument is untenable. Inc. In San Mauricio Mining Company v. 422). petitioners in asserting the non. The terms and conditions under which such revocation or cancellation may be made. the lower court in its decision which has been affirmed by the Court of Appeals. Petitioners argue that cancelling or setting aside a contract approved by the Secretary is." It will be recalled that the questioned cancellation of Contract "A" was among others. or by delegation of power. In the case at bar. have already been specifically provided for in Contract "A" which has already been approved by the Department Head. claiming that Contract "B" was a mere sublease to respondent Mobil Oil Philippines. acting for the President. a subsequent billing by the Accounting Department of the CAA has in effect waived or nullified the rescission of Contract "A. It is evident that in the implementation of aforesaid contract. in effect.

hence. which provide as follows: SEC. it is understood that it must be given a right to use and occupy the lot in question in the form of a sub-lease (Rollo. among others. (Emphasis supplied) SEC. there is absolutely no room for interpretation or construction anymore. The fact that Mobil Oil was mentioned in that contract was clearly not intended to give approval to a sublease between petitioners and said company but rather to insure that in the arrangements to be made between them. Powers and Duties of the Administrator. Authority of national officials to make contract. p." (San Mauricio Mining Company v. by the proper Department Head himself or the President of the Philippines as the case may require. — Subject to the general control and supervision of the Department Head. unless authority to execute the same is by law expressly vested in some other officer. respondent CAA avers that the CAA Administrator has the authority to lease real property belonging to the Republic of the Philippines under its administration even without the approval of the Secretary of Public Works and Communications. Thus. pp. supra). 32. whatever improvements have been constructed in the leased premises shall be relinquished to CAA. it was categorically stated that it is the lessee (petitioner) who will manage and operate the gasoline station. or if there is no such chief.rights of Rosario Leveriza to the leased premises and not to assignment of the lease (Rollo. said deed or contract shall be executed on behalf of said government by the President of the Philippines or by an officer duly designated by him. in the absence of special provision. 568. the Administrator shall have. Petitioners likewise argued that it was contemplated by the parties to Contract "A" that Mobil Oil Philippines would be the owner of the gasoline station it would construct on the leased premises during the period of the lease. which reads: Sec. Ancheta. — Written contracts not within the purview of the preceding section shall. by the Chief of the Bureau or Office having control of the appropriation against which the contract would create a charge. 567. In Contract "A". 48-49). 152). On the other hand. be executed. citing Sections 567 and 568 of the Revised Administrative Code. with the approval of the proper Department Head. which authority is expressly vested in it by law. petitioners contend that the administrator of CAA cannot execute without approval of the Department Secretary. the following powers and duties: xxx xxx xxx . it must be understood that after the expiration of the lease contract. more particularly Section 32 (24) of Republic Act 776. Finally. — When the Republic of the Philippines is party to a deed conveying the title to real property or is party to any lease or other contract relating to real property belonging to said government. Authority of the President of the Philippines to execute contracts relative to real property. this Court held that "the primary and elementary rule of construction of documents is that when the words or language thereof is clear and plain or readily understandable by any ordinary reader thereof. a valid contract of lease over real property owned by the Republic of the Philippines.

ruled that another basic principle of statutory construction mandates that general legislation must give way to special legislation on the same subject.. the petition is DISMISSED for lack of merit and the decision of the Court of Appeals appealed from is AFFIRMED in toto. maintain and develop the Manila International Airport and all government aerodromes except those controlled or operated by the Armed Forces of the Philippines including such power and duties as: . administers properties belonging to the Republic of the Philippines and it is on these properties that the Administrator must exercise his vast power and discharge his duty to enter into. or lease any personal or real property. Domingo v. Baluyot.. that no real property thus acquired and any other real property of the Civil Aeronautics Administration shall be sold without the approval of the President of the Philippines. The exception. or (2) by an officer duly designated by him or (3) by an officer expressly vested by law. People. this Court. 24) of Republic Act 776. . Under 567 of the Revised Administrative Code. that the Director of the Civil Aeronautics Administration does not need the prior approval of the President or the Secretary of Public Works and Communications in the execution of Contract "C. 120 SCRA 760) and that where two statutes are of equal theoretical application to a particular case. that specific statute prevails over a general statute (De Jesus v. 96 SCRA 139). It is readily apparent that in the case at bar. or lease any personal or real property. firm. control. firm. right of ways. Under the above-cited Section 32 (par. and easements which may be proper or necessary: Provided. 83 SCRA 38) WHEREFORE. such contract of lease must be executed: (1) by the President of the Philippines. or public or private corporation or entity and to acquire. Thus. the Civil Aeronautics Administration has the power to execute the deed or contract involving leases of real properties belonging to the Republic of the Philippines. (b) to enter into. . De los Angeles. the Civil Aeronautics Administration has the authority to enter into Contracts of Lease for the government under the third category. is the sale of properties acquired by CAA or any other real properties of the same which must have the approval of the President of the Philippines." In this regard. purchase. by law expressly vested in it. make and execute contracts of any kind with any person. operate. not because it is an entity duly designated by the President but because the said authority to execute the same is. make and execute contract of any kind with any person. the one designed therefor specially should prevail (Wil Wilhensen. right of ways and easements which may be proper or necessary. (c) to acquire. The Court of appeals took cognizance of the striking absence of such proviso in the other transactions contemplated in paragraph (24) and is convinced as we are... hold. the Administrator (Director) of the Civil Aeronautics Administration by reason of its creation and existence.(24) To administer. Inc.. There is no dispute that the Revised Administrative Code is a general law while Republic Act 776 is a special law nor in the fact that the real property subject of the lease in Contract "C" is real property belonging to the Republic of the Philippines. v. manage. SO ORDERED. and generally be so interpreted as to embrace only cases in which the special provisions are not applicable (Sto. as correctly ruled by the Court of Appeals. however. or public or private corporation or entity. purchase. hold.

1998.: The question presented for resolution in the administrative matter at bar is whether. . Placido B. to discuss the question raised by some sectors about the "constitutionality of *** appointments" to the Court of Appeals. respectively. Valenzuela and Hon. 1998 of Hon. Placido B. respectively. on the one hand. The issue was first ventilated at the meeting of the Judicial and Bar Council on March 9. Article VII of the Constitution. 1998. The appointments were received at the Chief Justice's chambers on May 12. the Supreme Court and the Judicial and Bar Council over which the Court exercises general supervision and wields specific powers including the assignment to it of other functions and duties in addition to its principal one of recommending appointees to the Judiciary. and on the other. DECISION NARVASA. Referred to the Court En Banc by the Chief Justice are the appointments signed by His Excellency the President under the date of March 30. Resolution of the issues is needful. 98-5-01-SC. Cabanatuan City. 1998] In Re Appointments dated March 30.as that here involved . Valenzuela and Hon. The meeting had been called.[1] I The Relevant Facts The Resolution of the Court En Banc. the President is nonetheless required to fill vacancies in the judiciary. handed down on May 14. 1998. in view of Sections 4(1) and 9 of Article VIII. Cabanatuan City. and the determination of its Members' emoluments. Bago City and of Branch 24. Vallarta as Judges of the Regional Trial Court of Branch 62. CJ. according to the Chief Justice as Ex Officio Chairman.between the Chief Executive.M. November 9. Mateo A. Vallarta as Judges of the Regional Trial Court of Branch 62. Bago City and of Branch 24. it will preclude a recurrence of any conflict in the matter of nominations and appointments to the Judiciary . A corollary question is whether he can make appointments to the judiciary during the period of the ban in the interest of public service. during the period of the ban on appointments imposed by Section 15. sets out the relevant facts and is for that reason hereunder reproduce in full. No.EN BANC [A. The referral was made in view of the serious constitutional issue concerning said appointments arising from the pertinent antecedents. 1998 of Hon. Mateo A.

The view was then expressed by Senior associate Justice Florenz D. Secretary of Justice Silvestre Bello III requested the Chief Justice for "guidance" respecting the expressed desire of the "regular members" of the JBC to hold a meeting immediately to fill up the vacancy in the Court in line with the President's letter of May 4. that on the basis of the Commission's records. Consultant of the Council. Two months immediately before the next presidential elections and up to the end of his term. who had been a member of the Committee of the Executive Department and of the Committee on the Judicial Department of the 1986 Constitutional Commission. 1998. the Chief Justice received a letter from the President.from a list of at least three nominees prepared by the Council for every vacancy ." On May 5. 1998.within ninety days from the submission of the list. except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. the President. The Chief Justice advised . Section 4(1) of Article VIII which states: "SEC 4 (1) The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices.specifically. ***. 1998 the Chief Justice received an official communication from the Executive Secretary transmitting the appointments of eight (8) Associate Justices of the Court of Appeals all of which had been duly signed on March 11. Any vacancy shall be filled within ninety days from the occurrence thereof. appointments to fill vacancies in the Supreme court during the period mentioned in the provision just quoted could seemingly be justified by another provision of the same Constitution. together with the Council's nominations for eight (8) vacancies in the Court of Appeals. Article VII of the Constitution . May 6. that the legislature's representatives to the JBC were occupied with the forthcoming elections. specially considering that the Court had scheduled sessions in Baguio City in April. and that a member of the Council was going on a trip out of the country. Francisco." Also pertinent although not specifically discussed is Section 9 of the same Article VIII which provides that for the lower courts. the election ban had no application to appointments to the Court of Appeals. On May 4." in view of the duty imposed on him by the Constitution "to fill up the vacancy *** within ninety (90) days from February 13. the Chief Justice resolved to defer consideration of nominations for the vacancy in the Supreme Court created by the retirement of Associate Justice Ricardo J. 1998. Without any extended discussion or any prior research and study on the part of the other Members of the JBC." On the other hand. On April 6. the President shall issue the appointments . Regalado. In view of the fact that all the appointments had been signed on March 11. in light of the forthcoming presidential elections. Article VII of the Constitution reading as follows: "SEC 15. the date the present vacancy occurred. a President or Acting President shall not make appointments. Attention was drawn to Section 15. addressed to the JBC requesting transmission of the "list of final nominees" for the vacancy "no later than Wednesday. and was then submitted to the President for consideration. 1998. 1998 . 1998.the day immediately before the commencement of the ban on appointments imposed by Section 15. this hypothesis was accepted.which impliedly but no less clearly indicated that the President's Office did not agree with the hypothesis that appointments to the Judiciary were not covered by said ban. 1998 by His Excellency.

1998. Since the Members of the Council appeared determined to hold a meeting regardless of the Chief Justice's wishes. and after discussion. Article VII). 1998 the Chief Justice sent his reply to the President. at 2:00 o'clock in the afternoon. It would appear. Teresita Cruz Sison. prepared and signed hours before delivery of the Chief Justice's letter to the President and the Justice Secretary. 1998. He began by stating that no sessions had been scheduled for the Council after the May elections for the reason that apparently the President's Office did not share the view posited by the JBC that Section 15. Jose C. 1998. 1998. were Justices Hilario G." The letter was delivered to Malacañang at about 5 o'clock in the afternoon of May 6. Purisima.. that the Justice Secretary and the regular members of the Council had already taken action without awaiting the Chief Justice's promised response to the President's letter of May 4. Article VII) as well as to the President's letter of May 4 in which he "emphatically requested that the required list of final nominee be submitted to him. Bellosillo." He closed with the assurance that the JBC expected to deliberate on the nominations "forthwith upon the completion of the coming elections.Secretary Bello to await the reply that he was drafting to the President's communication. Article VIII of the Constitution (omitting any mention of Section 15. Martinez. ex officio member and the regular members of the Council." This Resolution they transmitted to the Chief Justice together with their letter. Reynato S. and a copy given to the Office of Justice Secretary Bello shortly before that hour. Romero. Justice Regino Hermosisima. Vicente V." It seems evident. Flerida Ruth P. Present at the meeting were Chief Justice. In Article VIII of the Constitution (and again omitting any reference to Section 15. Peralejo. ." prescinding from "the desire to avoid any constitutional issue regarding the appointment to the mentioned vacancy" and the further fact that "certain senior members of the Court of Appeals *** (had) asked the Council to reopen the question of their exclusion on account of age from such (final) list. the body agreed to give the President time to answer the Chief Justice's letter of May 6. they met at some undisclosed place. Judge Cesar C. the undersigned members constituting the majority will be constrained to convene the Council for the purpose of complying with its Constitutional mandate. Also present on the invitation of the Chief Justice. Puno. Antonio M. May 6. The Chief Justice reviewed the events leading to the session. Quisumbing and Fidel P. Secretary Bello. that the resolution and the covering letter were deliberated on. Article VII of the Constitution had no application to JBC-recommended appointments . On May 6. Artemio V. Josue N. Panganiban. closed with an appeal that the Chief Justice convene the Council for the purpose "on May 7. as just intimated. Vitug. In that two-page Resolution they drew attention to Section 4 (1).the appointments to the Court of Appeals having been all uniformly dated March 11. Mendoza. Leonardo A. They ended their letter with the following intriguing paragraph: "Should the Chief Justice be not disposed to call for the meeting aforesaid. in which they emphasized that "we are pressed for time" again drawing attention to Section 4 (1). Jr. Atty. also dated May 6. before the commencement of the prohibition in said provision . deliberated. the latter convoked the Council to a meeting at 3 o'clock in the afternoon of May 7. 1998. 1998.thus giving rise to the "need to undertake further study of the matter." and pointing out that the "Council would be remiss in its duties" should it fail to submit the nominations. and came to an agreement on a resolution which they caused to be reduced to writing and thereafter signed. On that day. a copy of which he would give to the Secretary the following day. however. 1998. Davide.

" The Chief Justice replied to the letter the following day. Article VII.' As you can see." the whole article being "entitled 'EXECUTIVE DEPARTMENT.'" He also observed that further proof of his theory "is the fact that appointments to the judiciary have special. Section 15 of Article VII imposes a direct prohibition on the President: he "shall not make appointments" within the period mentioned. hence. May 8. On the other hand." As the exception makes reference only to "executive" positions." Unlike Section 15. the duty of filling the vacancy is not specifically imposed on the President. Sec. 4 [1] and Article VIII. the Chief Justice received a letter from His Excellency the President in reply to his letter of May 6 (which the President said had been "received early this morning"). the Court feels that there is a serious question concerning the matter in light of the seemingly inconsistent provisions of the Constitution. it may be inferred that it is a duty shared by the Judicial and Bar council and the President. . it would seem that "judicial" positions are covered by the general rule. 15) *** applies only to executive appointments or appointments in the executive branch of government. 1998 which. responding to my own communication of May 6. Knowing how busy you are. I would like to say. Your Excellency. The dating of the latest appointments to the Court of Appeals was adverted to merely to explain how we in the Court and the JBC came to have the impression that you did not share the view expressed in the JBC minutes of March 9. I will deal straightaway with the points set out in your letter. "Thank you for your letter of May 7. In view thereof. 1998 'that there is no election ban with regard to the JBC appointments. Sec. Since the Chief Justice's letter explains the issue quite plainly. a President or Acting President shall not make appointments. 1998. specific provisions applicable to them" (citing Article VIII. it is here quoted in full. requires that any vacancy in the Supreme Court "shall be filled within ninety days from the occurrence thereof. This is the general rule then. which reads: 'SEC. Section 9.' The second is Section 4(1) of Article VIII which states: 'SEC 4(1) The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. 1998. the same may be considered as applying to all appointments of any kind and nature. The President expressed the view that "the election-ban provision (Article VII. Section 4 (1) of Article VIII. 15. reflects the collective sentiments of my colleagues in the Supreme Court.On May 7. except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.' Be this as it may. Any vacancy shall be filled within ninety days from the occurrence thereof. The first of these is Section 15. and since there is no specification of which appointments are proscribed. the only exception being only as regards "executive positions" as to which "temporary appointments" may be made within the interdicted period "when continued vacancies therein will prejudice public service or endanger public safety. 1998. Article VII. ***. Two months immediately before the next presidential elections and up to the end of his term. he "firmly and respectfully reiterate(d) *** (his) request for the Judicial and Bar Council to transmit *** the final list of nominees for the lone Supreme Court vacancy.

as I stated in my letter of May 6. Jr." On May 8." . Article VII comes into play: the President shall not make any appointments. Article VII is a particular one. I believe that the Court may now perhaps consider the issue ripe for determination and come to grips with it. Article VIII shall apply: vacancies in the Supreme Court shall be filled within 90 days.which after all occur only every six years . Jose C. Santiago M. that as befits a matter in which the Chief Executive has evinced much interest. quite obviously. as well as Justices Hilario G. 1998. no serious prejudice will be done. Leonardo A. I must emphasize that the validity of any appointment to the Supreme Court at this time hinges on the correct interpretation of the foregoing sections of the Constitution. I am requesting the regular Members of the Judicial and Bar Council to defer action on the matter until further advice by the Court. 1998. Your Excellency. "it declined to take any position. when there are no presidential elections . Davide. However the Court resolves the issue. Vitug. Should the Court rule that the President is indeed prohibited to make appointments in a presidential election year. Reynato S. another meeting was held at which were present the Chief Justice. together with the request that the Supreme Court consider that the ninetyday period stated in Section 4 (1). Kapunan. I consulted the Court about it but." Another interpretation is that put forth in the Minutes of the JBC Meeting of March 9. and must thus be dealt with with utmost circumspection. Purisima. Martinez. but when (as now) there are presidential elections. then any appointment attempted within the proscribed period would be void anyway. Romero. I intend to convene the Court by next week. according to Fr. 1998. I assure you. at the latest. Flerida Ruth P. The reason for said prohibition. Antonio M. is "(I)n order not to tie the hands of the incoming President through midnight appointments. or any accusation of "midnight" appointments or rash. Article VIII is a general provision while Section 15. Artemio V. my colleagues and I will give it preferential and expeditious attention and consideration. J. S. in view of the general prohibition in the first-quoted provision. Quisumbing and Fidel P. again on the insistence of the regular Members of the JBC.. and it is the Court that is empowered under the Constitution to make an authoritative interpretation of its (provisions) or of those of any other law. The meeting closed with a resolution that "the constitutional provisions *** (in question) be referred to the Supreme Court En Banc for appropriate action.Now. and upon the advice and consent of the Members of the Court. the prohibition in Section 15. to avoid any possible polemics concerning the matter. If the Court should adjudge that the ban has no application to appointments to the Supreme Court. I earnestly make the same request of you.. Article VIII be suspended or interrupted in view of the peculiar circumstances ***. Bellosillo. the JBC may submit nominations and the President may make the appointment forthwith upon such adjudgment. how is the requirement of filling vacancies in the Court within ninety days to be construed? One interpretation that immediately suggests itself is that Section 4(1). Panganiban. hasty action on the part of the JBC or the President. Vicente V. the Secretary of Justice and the three regular Members above mentioned. normally. Josue N. Puno. since obviously there had not been enough time to deliberate on the same *** (although it) did agree that further study was necessary ***.Section 4(1). The matter is a delicate one. In view thereof." Since the question has actually come up. Bernas. To this end. that is to say. On account of the importance of the question.J. however. and its importance cannot be gainsaid. Mendoza. to avoid any question regarding the validity of an appointment to the Court at this time. an authority on Constitutional Law and himself a member of the Constitutional Commission.

Valenzuela and Hon. the following pleadings and other documents were filed. Placido B. Placido B. Accordingly. Article VII of the charter. and (d) Hon. 1998. 2) the letter dated June 1. The Court further Resolved that (1) pending the foregoing proceedings and the deliberation by the Court on the matter. said Council and its ex officio and regular Members herein mentioned be INSTRUCTED. the Office of the Solicitor General. 1998 of Hon. Vallarta dated June 8. 4) his "Addendum to Comments" dated June 8. and the referral of the constitutional question to the Court in virtue of the Resolution of May 8. operate to raise a justiciable issue before the Court. (2) to DIRECT the Clerk of Court to immediately serve copies of this Resolution on (a) the Office of the President. transmitting the appointments to the appointees so that they might take their oaths and assume their duties of their office. and that (2) exercising its power of supervision over the Judicial and Bar Council. The trouble is that in doing so.On May 12. Valenzuela. Mateo A. 6) the letter of Hon. an issue of sufficient importance to warrant consideration and adjudication on the merits. 1998. 1998. This places on the Chief Justice the obligation of acting thereon. Placido B. 1998. for these appointments appear prima facie. Mateo A. supra. no action be taken on the appointments of Hon. SO ORDERED. the Chief Justice received from Malacañang the appointments of two (2) Judges of the Regional Trial Court mentioned above. 1998. Vallarta (at their addresses recorded in the Judicial and Bar Council). . i. 5) his "Explanation" dated June 8. Valenzuela dated May 25. the Court Resolved to (1) CONSIDER the case at bar an administrative matter and cause it to be appropriately docketed. and until further orders. Vallarta to file their comments on this Resolution within fifteen (15) days from notice thereof. as they are hereby INSTRUCTED. (c) Hon. This circumstance. Valenzuela.e. 3) the "Comments" of Hon.. Hon. Vallarta in compliance with the same Resolution. Mateo A. II The Relevant Pleadings In compliance with the foregoing Resolution. Vallarta which in the meantime shall be held in abeyance and not given any effect and said appointees shall refrain from taking their oath of office. the Chief Justice runs the risk of acting in a manner inconsistent with the Constitution. 1998 of Hon. and (3) to REQUIRE the Office of the President. to wit: 1) the manifestation dated May 28. at least. 1998. Velenzuela in compliance with the Resolution of May 14. to be expressly prohibited by Section 15. 1998. to defer all action on the matter of nominations to fill up the lone vacancy in the Supreme Court or any other vacancy until further orders. (b) the Office of the Solicitor General. and Hon.

Judge Valenzuela alleged inter alia: "***that on May 14. Judge RTC. one of the directives in the Resolution of May 14. Article VIII: "The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. Valenzuela dated July 17. Indeed. 8) the "Explanation" of Hon. the Court required Valenzuela to EXPLAIN by what authority he had taken his oath on May 14. five. Valenzuela and Vallarta. It may sit en banc or in its discretion. 1998. except temporary appointments to execute positions when continued vacancies therein will prejudice public service or endanger public safety. 1998. and thereafter Resolved to promulgate the following opinion. and had not been transmitted to them precisely because of the serious issue concerning the validity of their appointments. Article VII: "Two months immediately before the next presidential elections and up to the end of his term. by Resolution dated June 23.7) his letter dated June 16." and which had been sent to and received by the Chief Justice on May 12." The Court then deliberated on the pleadings and documents above mentioned. no action be taken on the appointments *** which in the meantime shall be held in abeyance and not given any effect ***. 1998 .addressed to them "Thru: the Chief Justice. Bago City *** (and that he did so) "faultlessly. and until further orders. he took his Oath of Office as Judge. and 9) the "Comment" of the Office of the Solicitor General dated August 5. Valenzuela's Assumption of Duty as Judge on May 14." *** without knowledge of the on-going deliberations on the matter. in relation to the facts and circumstances on record. Anastacio C. Manila. the originals of the appointments of Messrs." Section 4 (1). Rufon. Bago City. in divisions of three. Branch 52. Any vacancy shall be filled within ninety days from the occurrence thereof. 1998. III The Relevant Constitutional Provisions The provision of the Constitution material to the inquiry at bar read as follows:[3] Section 15. Bacolod City. Supreme Court of the Philippines. 1998. before Hon. 1998. 1998 he "received from Malacañang copy of his appointment ***" which contained the following direction: "By virtue hereof. 1998. RTC Branch 62." At that time. In his "Explanation" dated July 17. 1998[2] -. you may qualify and enter upon the performance of the duties of the office***. (and) he also reported for duty as such before said RTC Branch 62. 1998 In his Manifestation dated May 28. 1998 as Judge of Branch 62 of the RTC at Bago City. or seven Members. 1998. Valenzuela stated that he did so because on May 7. 1998." . dated March 30.were still in the latter's Office." For this reason. A. 1998 was that "pending *** deliberation by the Court on the matter. a President or Acting President shall not make appointments. pursuant to Appointment dated March 30.

He also wished to ensure that that number would not be reduced for any appreciable length of time (even only temporarily). the proposal was approved. (now a Member of this Court) to add to what is now Section 9 of Article VIII. it may be pointed out that that instruction that any "vacancy shall be filled within ninety days" (in the last sentence of Section 4 (1) of Article VIII) contrasts with the prohibition in Section 15.the President is neither required to make appointments to the courts nor allowed to do so. Article VII of the Constitution .Section 9. the 90-day period should be counted from submission of the list of nominees to the President in view of the possibility that the President might reject the list submitted to him and the JBC thus need more time to submit a new one. Persisting however in his desire to make certain that the size of the Court would not be decreased for any substantial period as a result of vacancies. As thus amended. and to this end proposed that any vacancy "must be filled within two months from the date that the vacancy occurs. According to him." IV The Court's View The Court's view is that during the period stated in Section 15. which is couched in stronger negative language . In this connection. the Commission ultimately agreed on a fifteen-member Court. For the lower courts. Article VIII: "The Members of the Supreme Court and judges in lower courts shall be appointed by the President from the list of at least three nominees prepared by the Judicial and Bar Council for every vacancy.[6] Davide stated that his purpose was to provide a "uniform rule" for lower courts."(t)wo months immediately before the next presidential elections and up to the end of his term" . the following paragraph: "WITH RESPECT TO LOWER COURTS." His proposal to have a 15-member Court was not initially adopted. Lerum proposed the insertion in the provision (anent the Court's membership) of the same mandate that "IN CASE OF ANY VACANCY. months.[7] . V Intent of the Constitutional Commission The journal of the Commission which drew up the present Constitution discloses that the original proposal was to have an eleven-member Supreme Court.[4] As it turned out. It is noteworthy that the prohibition on appointments comes into effect only once every six years." He later agreed to suggestions to make the period three. Commissioner Eulogio Lerum wanted to increase the number of Justices to fifteen.that "a President or Acting President shall not make appointments…" The commission later approved a proposal of Commissioner Hilario G. however. THE SAME SHALL BE FILLED WITHIN TWO MONTHS FROM OCCURRENCE THEREOF. and that Sections 4(1) and 9 of Article VIII simply mean that the President is required to fill vacancies in the courts within the time frames provided therein unless prohibited by Section 15 of Article VII. THE PRESIDENT SHALL ISSUE THE APPOINTMENT WITHIN NINETY DAYS FROM THE SUBMISSION OF THE LIST" (of nominees by the Judicial and Bar Council to the President). Jr.[5] Thus it was that the section fixing the composition of the Supreme Court came to include a command to fill up any vacancy therein within 90 days from its occurrence. Such appointments need no confirmation. Article VII. the President shall issue the appointments within ninety days from the submission of the list. instead of two. Davide.

In Aytona v." Said the Court: "The filling up of vacancies in important positions. entity. or giving salary increases. Prohibited Acts. (g) Appointment of new employees. Analysis of Provisions Now. VI. except upon prior authority of the Commission.:[8] SEC. offers or promises money or anything of value. or cause an expenditure to be made to any person. Section 15. or to vote for or against any aspirant for the nomination of choice of a candidate in a convention or similar selection process of a political party. or creates and fills any new position. Castillo. or casual.The following shall be guilty of an election offense: (a) Vote buying and vote selling . creation of new position. During the period of forty five days before a regular election and thirty days before a special election. public or private. temporary. The second type of appointments prohibited by Section 15. . Garcia. whether provisional. it appears that Section 15. Article VII .On the other hand. viz. promotion. or community in order to induce anyone or the public in general to vote for or against any candidate or withhold his vote in the election. franchise or grant. The Commission shall not grant the authority sought unless. and so spaced as to afford some assurance of deliberate action and careful consideration of the need for the appointment and appointee's qualifications may undoubtedly be permitted. it is satisfied that the position to be filled is essential to the proper functioning of the office or agency concerned. The first refers to those appointments made within the two months preceding a Presidential election and are similar to those which are declared election offenses in the Omnibus Election Code.was approved without discussion. 261. including government-owned or controlled corporations. be regarded by the latter as an abuse of Presidential prerogatives. who was defeated in his bid for reelection. who appoints or hires any new employee. …. agency or instrumentality whether national or local. (1) any head. or makes or offers to make an expenditure. and that the position shall not be filled in a manner that may influence the election. But the issuance of 350 appointments in one night and the planned induction of almost all of them in a few hours before the inauguration of the new President may. official or appointing officer of a government office. and thereby to deprive the new administration of an opportunity to make the corresponding appointments. the steps taken being apparently a mere partisan effort to fill all vacant positions irrespective of fitness and other conditions. corporation.(1) Any person who gives. became no more than a "caretaker" administrator whose duty was to "prepare for the orderly transfer of authority to the incoming President. directly or indirectly. with some reason." . association. President Carlos P. gives or promises any office or employment. if few.which in effect deprives the President of his appointing power "two months immediately before the next presidential elections up to the end of his term" . Article VII is directed against two types of appointments: (1) those made for buying votes and (2) those made for partisan considerations. Article VII consists of the so-called "midnight" appointments.[9] it was held that after the proclamation of Diosdado Macapagal as duly elected President.

Article VII has a broader scope than the Aytona ruling. the appointments being addressed to the appointees "Thru: the Chief Justice. those occurring in the lower courts can be filled temporarily by designation.to be sent by the Office of the President to the Office of the Chief Justice. This may be the case should the membership of the court be so reduced that it will have no quorum or should the voting on a particularly important question requiring expeditious resolution be evenly divided. But prohibited appointments are long-lasting and permanent in their effects. in fact influence the results of elections and. Bago City. that Sections 4 (1) and 9 of Article VIII should prevail over Section 15 of Article VII. not only in the executive but also in the Supreme Court.those made obviously for partisan reasons as shown by their number and the time of their making ."[10] can be made by the outgoing President. to be conducted by the Philippine Judicial . the Court recognized that there may well be appointments to important positions which have to be made even after the proclamation of the new President. it is this Court's view that.[12] VII. for that reason. which were shown to have been well considered. the former should yield to the latter. The exception allows only the making of temporary appointments to executive positions when continued vacancies will prejudice public service or endanger public safety. because they may be considered later expressions of the people when they adopted the Constitution. Such a case. is covered by neither Section 15 of Article VII nor Section 4 (1) and 9 of Article VIII. however. the article greatly restricts the appointing power of the President during the period of the ban. were upheld. single. A Last Word A final word. the prevention of vote-buying and similar evils outweighs the need for avoiding delays in filling up of court vacancies or the disposition of some cases. comes to exist only once in every six years." It is a Clerk of Court of the Supreme Court. Moreover. On the other hand. their making is considered an election offense. Manila. Supreme Court. Temporary vacancies can abide the period of the ban which. it suffices to point out that the Constitution must be construed in its entirety as one. as a general proposition. Accordingly.[11] Section 15. To the contention that may perhaps be asserted.is much narrower than that recognized in Aytona. as earlier pointed out. Surely. the exception in the same Section 15 of Article VII . several appointments made by President Garcia. in the Chief Justice's behalf. concerning Valenzuela's oath-taking and "reporting for duty" as Presiding Judge of RTC Branch 62. instrument. during the period of the ban. who thereafter advises the individual appointees of their appointments and also of the date of commencement of the pre-requisite orientation seminar. 1998.As indicated. on May 14.but also appointments presumed made for the purpose of influencing the outcome of the Presidential election. They may. It may not unreasonably be deemed to contemplate not only "midnight" appointments . in case of conflict. To be sure. incidentally and as earlier pointed out. so long as they are "few and so spaced as to afford some assurance of deliberate action and careful consideration of the need for the appointment and the appointee's qualifications.from the highest to the lowest courts . Such appointments. Considering the respective reasons for the time frames for filling vacancies in the courts and the restriction on the President's power of appointment. instances may be conceived of the imperative need for an appointment.allowing appointments to be made during the period of the ban therein provided . Obviously.[13] Standing practice is for the originals of all appointments to the Judiciary .

The undesirability of such a situation is illustrated by the case of Judge Valenzuela who acted. with no little impatience or rashness. and without verifying the authenticity of the appointment or the propriety of taking oath on the basis thereof. to enter in the appropriate records all appointments to the Judiciary as well as other relevant data such as the dates of qualification. and to order them. VIII. on a mere copy of his supposed appointment. he would have been informed of the question concerning it and the Court's injunction. 1998 (transmitted to the Office of the Chief Justice on May 14. This. their assumption of duty. Mateo A. to forthwith CEASE AND DESIST from discharging the office of Judge of the Courts to which they were respectively appointed on March 30. The procedure also precludes the possibility. While the filling of vacancies in the judiciary is undoubtedly in the public interest. to say the least. Vallarta as Judges of the Regional Trial Court of Branch 62. 102948 February 2. 1998) were unquestionably made during the period of the ban. No. EN BANC G. as already discussed. 1998 of Hon. for a Judge to take his oath of office and enter upon the performance of his duties on the basis alone of a document purporting to be a copy of his appointment coming from Malacañang. Valenzuela and Vallarta on March 30. of Judges acting on spurious or otherwise defective appointments. In view of the foregoing considerations. forthwith on being served with notice of this decision. they come within the operation of the first prohibition relating to appointments which are considered to be for the purpose of buying votes or influencing the election. however remote. etc. 1998. respectively. there is a strong public policy for the prohibition against appointments made within the period of the ban. Conclusion The appointments of Messrs. the completion by the appointees of their prerequisite orientation seminars.Academy for new Judges. Cabanatuan City. Had he bothered to inquire about his appointment from the Court Administrator's Office. Consequently. Placido B. the authenticity of which has not been verified from the latter of the Office of the Court Administrator. without prejudice to their being considered anew by the Judicial and Bar Council for re-nomination to the same positions.R. IT IS SO ORDERED. or otherwise to begin performing his duties as Judge without the Court Administrator knowing of that fact. On the other hand. the Court Resolved to DECLARE VOID the appointments signed by His Excellency the President under date of March 30. 1994 . The rationale of this procedure is salutary and readily perceived. The procedure ensures the authenticity of the appointments. particularly of the Office of the Court Administrator. It is obviously not advisable. Valenzuela and Hon. there is no showing in this case of any compelling reason to justify the making of the appointments during the period of the ban. without having received any formal notice from this Court. Bago City and of Branch 24. enables the Court.

and the departments and offices therein were reorganized. 1216. dismissed petitioner's protest and upheld the appointment of private respondent. PANIS. the City Attorney. 90-1047 dated November 22. is operated and maintained by the local government of Cebu City. and at the same time. indorsed the matter to the Office of the City Mayor. amended the charter of the Cebu City Hospital for the purpose of correcting the deficiencies and improving the performance of said institution. Veloso to the position of Assistant Chief of Hospital for Administration of the Cebu City Medical Center (CCMC). The Office of Hospital Administrator was created and granted such powers as were deemed in line with the objectives of the Ordinance. 1987. The second Resolution denied the motion for reconsideration of the decision. with the approval of the City Mayor. promptly protested the appointment before the Regional Office of the Civil Service Commission (CSC). there was no qualification standard nor valid screening procedure. QUIASON. (2) assuming that it was. CIVIL SERVICE COMMISSION and BELLA V. The petition is not impressed with merit. The first Resolution dismissed petitioner's appeal from the decision of the Regional Office of the Civil Service Commission. by respondent CSC. chanroblesvirtualawlibrary chanrobles virtual law library In a decision dated July 26. chanroblesvirtualawlibrary chanrobles virtual law library . Respondent. The hospital's name was changed to CCMC. 1991.: chanrobles virtual law library This is a petition for certiorari under Rule 65 of the Revised Rules of Court in relation to Section 7 of Article IX (A) of the Constitution. existing civil service rules and established jurisprudence because (1) the position of Assistant Chief of Hospital for Administration was not legally created. chanroblesvirtualawlibrary chanrobles virtual law library On November 9. of the Civil Service Commission. which in turn referred it to the Office of the City Attorney. while private respondent was Administrative Officer of the City Health Department detailed at the said hospital. 1990 and Resolution No. to nullify Resolution No. J. VELOSO. formerly known as the Cebu City Hospital. chanroblesvirtualawlibrary chanrobles virtual law library Petitioner contends that the appointment of private respondent was made in violation of law. passed by the Cebu City Sangguniang Panglunsod on June 17. however. the Mayor of Cebu City appointed private respondent to the position of Assistant Chief of Hospital for Administration of CCMC. Petitioner was employed as Administrative Officer of the Hospital. 1988. and (3) the seniority and next-in-rank rules were disregarded. Petitioner. The CSC Regional Office. vs. the present petition. chanroblesvirtualawlibrary chanrobles virtual law library chanroblesvirtualawlibrary chanrobles virtual law library Ordinance No. III. II. a candidate for the said position. upheld the appointment of respondent Bella V. chanroblesvirtualawlibrary chanrobles virtual law library The CCMC.JAIME T. Hence. Petitioner. 1986. This dismissal was affirmed by the CSC Regional Office and later on appeal. 91-1100 dated September 24. I.

among whom were petitioner and private respondent. Under the law. despite due notice. 19 (5). Sec. cannot be upheld. 1987. E. 206 SCRA 715 [1992]. she actually worked at the CCMC prior to her appointment to the subject position. but not necessarily in this order (P. The Office of Assistant Chief of Hospital for Administration therefore was created and existed in accordance with law. The instant controversy. and appointment of outsiders who have appropriate civil service eligibility. Civil Service Commission. chose to appoint private respondent. 1987 for lack of the screening requirement. chanroblesvirtualawlibrary chanrobles virtual law library The position of Assistant Chief of Hospital for Administration is the very same position of Hospital Administrator created by Ordinance No." but the screening was actually reset to the following day. Besides. at 289-290). the "next in rank" rule specifically applies only in cases of promotion (Medenilla v. in the instant case. 1216. 1987. 1987. the City Mayor appointed private respondent to the position of Hospital Administrator. 194 SCRA 278 [1991]. the creation and validity of which he himself originally questioned. The Mayor of Cebu City. On even date. not acted upon by the CSC but returned to the appointing authority on October 21. however. The determination. Neither did he appear. Sec. Pineda v. the law does not prohibit the employment of persons from the . The notice sent petitioner at 9:30 A. Medenilla v. 1987. who joined the hospital in 1986 and only on detail. 292. Be that as it may. This appointment was. 28 SCRA 34 [1969]). October 23. at the final selection process on November 5. The Office of Hospital Administrator was not extinguished.D. however. the City Mayor withdrew private respondent's appointment. Claudio. were notified by the Personnel Selection Board (Board) of the screening scheduled on October 22. This classification was subsequently approved by the Department of Budget Management. however. by reemployment of those separated from the service. chanroblesvirtualawlibrary chanrobles virtual law library The fact that private respondent was actually screened and interviewed by the Board does not mean that her appointment was a fait accompli. may have been "too close for comfort to the 10:00 schedule. chanroblesvirtualawlibrary chanrobles virtual law library Private respondent and petitioner are college degree holders with three units in Public Administration and three years experience in Hospital Administration or Health Administration. 807 Art. chanroblesvirtualawlibrary chanrobles virtual law library As a result of the reclassification. supra. chanroblesvirtualawlibrary chanrobles virtual law library It cannot be said that private respondent was an outsider. even. Civil Service Commission.M. but the designation thereof merely corrected to reflect the proper classification of the position under existing rules (Rollo. both candidates possess the minimum qualifications for the position. Indeed.O. involves a new office and a position created in the course of a valid reorganization.. candidates to the position.On March 6. by reinstatement. who among the qualified candidates should be preferred belongs to the appointing authority. VIII. chanroblesvirtualawlibrary chanrobles virtual law library It is ironic that petitioner is personally interested in the subject position. Petitioner however never appeared before the Board. Español v. Bk. Civil Service Commission. Although directly employed by the City Health Department. The title of Hospital Administrator was later found to be a misnomer and thus was properly classified by the Joint Commission on Local Government Personnel Administration as one of Assistant Chief of Hospital for Administration. pp. 21 (5). The screening was just a stage in the appointment process. chanroblesvirtualawlibrary chanrobles virtual law library The argument that petitioner should have been the one appointed because he was next in rank to the contested position and that he had been with CCMC since 1961 as compared to private respondent. if she was an outsider. 78-80). a vacancy not filled by promotion may be filled by transfer of present employees in the government service. V.

and is likewise in the best position to determine who among the qualified candidates can efficiently discharge the functions of the position (Villegas v. 191 SCRA 396 [1990]. There is no vested right granted the next in rank nor a ministerial duty imposed on the appointing authority to promote the holder to the vacant position (Barrozo v. She accomplished this mission by institutionalizing changes in the management and financial reporting system of the hospital such that its income doubled in less than two years since her detail. Civil Service Commission. but it does nor necessarily follow that he alone and no one else can be appointed.private sector so long as they have the appropriate civil service eligibility. the appointing authority is the officer primarily responsible for the administration of the office. 807. at 291. What the Civil Service Law and the Administrative Code of 1987 provide is that if a vacancy is filled up by the promotion. Civil Service Commission. is essentially within the discretionary power of whomsoever it is vested. the moral character and honesty of private respondent are issues that should be threshed out in an appropriate action before the proper forum. one who is "next in rank" to a vacancy is given preferential consideration for promotion to the vacant position. 178 SCRA 733 [1989]). if not plenary. supra. supra. v. . 20 (3). 143 SCRA 327 [1986]). Subido. Abeleda. Civil Service Commission. Español v. 292. 171 SCRA 744 [1989]). chanroblesvirtualawlibrary chanrobles virtual law library An appointment. Civil Service Commission. 22 SCRA 825 [1968]). Private respondent's competence and her remarkable achievement are things the appointing authority took notice of and which served as basis for her appointment to the contested position. Civil Service Commission. Once a candidate possesses the minimum qualities required by law. chanroblesvirtualawlibrary chanrobles virtual law library SO ORDERED. sufficient discretion.O. the Court resolved to DISMISS the petition for lack of merit. E. Sec. Bk. Central Bank v. After all. Jr. chanroblesvirtualawlibrary chanrobles virtual law library Finally. Civil Service Commission. Luego v. Barrozo v. supra. the concept of "next in rank" does not impose any mandatory or peremptory requirement to appoint the person occupying the next lower position in the occupational group of the office. As it stands. whom to appoint among those qualified is an administrative question involving considerations of wisdom for the best interest of the service which only the appointing authority can decide (Simpao v. 19 (3). until proven otherwise. the person holding the position next in rank thereto "shall be considered for promotion" (P. V.D. Sec. Reyes v. 30 SCRA 498 [1969]). private respondent is presumed innocent and her acts done in good faith. whether to a vacancy or to a newly created position. Indeed. In other words. Civil Service Commission. Santiago. Civil Service Commission. is granted to the appointing authority (Medenilla v. 198 SCRA 487 [1991]). chanroblesvirtualawlibrary chanrobles virtual law library It is markworthy that private respondent was detailed at the CCMC primarily to help in upgrading the level of performance of the said hospital. chanroblesvirtualawlibrary chanrobles virtual law library WHEREFORE. chanroblesvirtualawlibrary chanrobles virtual law library Assuming nonetheless that a vacancy actually occurred that can be filled up only by promotion. finding no grave abuse of discretion on the part of the public respondent.

FLORENDA VILLAREAL. DANILO CABALLES. No. VIRGILIO ESTRADA. J.. ELMER DALIDA. CECILLA CASTILLO. BENJAMIN VALBUENA. BERNARDITA RINO. ROSALINA NOCUM. MARGIE SERRANO. ROSEMARIE VEDEJA. No. RIZALINA VICTORIO. CLARA ALVAREZ. NATIVIDAD NEPOMUCENO. ERLINA MAGALLANES. 1999] ROLANDO ALURA. LORENZA REAL. ANA PALMA. CAROLINA BULACLAC. CATHERINE SAN AGUSTIN. JR. GUIA MORRIS. COURT OF APPEALS. NEDA MAGSULIT. GLICERIA PANGINDIAN. NELSON DULDULAO. MATILDE DINGLE. ENRICO PILANDE. CELIA RONQUILLO. TERESITA LAURENTE. Cariñio of the Department of Education. ROSALINDA DALIDA. JOSE FETALVERO. LUZVIMINDA ESPINO. DAMIAN FETIZANAN. CONRADA ENDRINA. FELIPE ALACAR. ROSALINA JINGCO. MA. LEONOR LACERNA. ROSALIA GARCELINA. ERLINDA SOLAMO. ENRICO REYMUNDO. CAROLINA COLIGADO. ALMA TALAMANTE. March 25. DONATO VALDEMORO. GLORIA CUEVAS. CULTURE AND SPORTS.EN BANC [G. ECHELITA CALMA.. CORAZON GONZALES. TERESITA LAGUMBAY. LEONARDO LIMBO. LIBERTY SISON. [G. Culture and Sports (DECS). ELVIRA ALANO. GINA TIMBAS. EDGARDO LIWANAG. CIVIL SERVICE COMMISSION and THE SECRETARY OF THE DEPARTMENT OF EDUCATION. March 25. HILARIA HALAGO. DEMOCRITO FLORES. 129221. PORFIRIO AUSTRIA. JESUSA CARAIG. LEA POCONG. preventively suspended. WILSON PEREZ. MAXIMA NON. ANACLETA CORRALES. LOIDA IGNACIO. vs. and SECRETARY OF EDUCATION CULTURE AND SPORTS. JESSIE VILLANUEVA. MERCY DE LEON. and EMERITA PIZARRO. NORBERTO ABAD. VICENTE CARRANZA. TERESITA EUGENIO. MYRNA BARLISO. SUSANA BANUA. in decisions issued by him which uniformly read - . ROLANDO CERBO and LORA CLEMENCIA. 1999] LUZVIMINDA DE LA CRUZ. JOSEPHINE PARMISANO. LYDIA QUINTANA. MYRNA VILLAMIN. MARIA ACEJO. respondents. AMELITA MANGAHAS. Petitioners are public school teachers from various schools in Metro Manila who were simultaneously charged. VIOLETA GUANIZO. respondents.R. COURT OF APPEALS. ELENA GUEVARRA. HIPOLITA NATIVIDAD. SUSAN SIERTE. CARMELITA LEGION. GLORIA SALVADOR. LUZ PEREZ. petitioners. CIVIL SERVICE COMMISSION. and eventually dismissed in October 1990 by then Secretary Isidro D. 126183. petitioners vs. NERISSA IGNACIO.: These consolidated petitions[1] are among several petitions filed with this Court arising from the muchpublicized public school teachers' mass actions of September/October 1990. CONCORDIA DE GUZMAN. DECISION BELLOSILLO. SURENA GUNDRAN. ROWENA DEL ROSARIO.R. ESTELA PALILEO. ROSARIO DULDULAO. CORAZON GOMEZ.

which failure. 807.R. They initially filed petitions for certiorari with this Court. after a careful evaluation of the records. that petitioners' perceived grievances were no excuse for them not to conduct classes and defy the return-towork order issued by their superiors. Art. Atty. in violation of Presidential Decree 807. CA-G. Petitioners were unhappy with the CSC decision.R.R. in view of the length of time that petitioners had been out of the service by reason of the immediate implementation of the dismissal orders of Secretary Cariño. Gregorio Fabros. gross neglect of duty. (b).[7] The appellate court ruled that the questioned resolutions of the Civil Service Commission finding petitioners guilty of conduct prejudicial to the best interest of the service were based on reasonable and justifiable grounds. 37619-20 dismissing the petitions for lack of merit. The decisions dismissing petitioners were immediately implemented. 1990 filed by their counsel. 32. Culture and Sports against the following public school teachers x x x x based on the report submitted by their respective school principals wherein it was alleged that the above-named teachers participated in the mass action/illegal strike on Sept. which acts constitute grave misconduct. 19-21.R.O. SP No. 37620. Rule XIV of the Omnibus Rules Implementing Book V of E. 37619 and CA-G. the herein respondents are dismissed from Office effective immediately. respectively. Nos. gross violation of Civil Service Law. 111998. Wherefore. Required to explain within a period of not less than 72 hours but not more than 5 days from receipt of the complaint. 1-95. (2).[2] 114435-5506. gross insubordination.This is a motu-propio administrative complaint separately filed by the Secretary of Education. 47. 37. par. Petitioners appealed to the Merit Systems Protection Board (MSPB) and then to the Civil Service Commission (CSC). in a letter of this Office to him dated September 28. respondents failed to submit the same. that the immediate execution of the dismissal orders of Secretary Cariño was sanctioned by Sec. docketed as G. No. No. respondents failed to submit the required answer within the given time up to the present. IX of PD No. However. otherwise known as the Civil Service Decree of the Philippines.[5] and there re-docketed as CA-G. conduct prejudicial to the best interest of the service and absence without official leave (AWOL). 37784. SP Nos. On 29 November 1995 the Special Third Division of the Court of Appeals[6] rendered a joint decision in CA-G. the CSC likewise ordered petitioners' automatic reinstatement in the service without back wages. 1990. of the Administrative Code of 1987 (E.[3] and 116312-19. 1990 and subsequently defied the return-to-work order dated September 17. this Office finds the respondents guilty as charged. is considered a waiver on their part of their right to answer the charges and to controvert the same. In 1993 the CSC found petitioners guilty of “conduct prejudicial to the best interest of the service" for having participated in the mass actions and imposed upon them the reduced penalty of six (6) months' suspension.0. SP Nos. and despite the denial of their request for extension of 30 days within which to submit their answers dated September 25. 1989 of the Civil Service Commission on Guidelines in the Application of Penalty in Administrative Cases. 292) as well as Sec.[8] and Sec. In accordance with Memorandum Circular 30 s. 292. refusal to perform official duty. 1990 issued by this Office.R. SP No. Rules and Regulations and reasonable office regulations. 37808-37014. Their motion for reconsideration having been denied on 15 May .[4] which were all referred to the Court of Appeals pursuant to Revised Administrative Circular No. par.

in the alternative. and the imposition of additional teaching loads and longer teaching hours.R. 129221.R.[14] Stare decisis et non quieta movere." In Rolando Gan v. like any . Meanwhile.1997.R. award of back wages for the period of three (3) years when they were not allowed to work while awaiting resolution of their appeals by the MSPB and CSC. Their motion for reconsideration having been denied in the resolution of 20 August 1996. the strikers perceived to be the unjust or prejudicial implementation of the salary standardization law insofar as they were concerned. it will adhere to that principle and apply it to all future cases where the facts are substantially the same. 126183 and 129221 involving as they did common questions of fact and law. carried out for essentially economic reasons -.[11] The appellate court rejected petitioners' contention that they should not have been penalized for participating in the September/October 1990 mass actions because they were merely exercising their constitutional right to free assembly. constituting as they did. Moreover petitioners insist that the mass actions of September/October 1990 were not "strikes" as there was no actual disruption of classes. on 24 April 1998 the Tenth Division of the Court of Appeals[10] rendered a joint decision in CA-G. No.R.[9] petitioners then appealed by certiorari to this Court on 26 June 1997. 37784 and Nos. Jr. a concerted and unauthorized stoppage of or absence from work which it was said teachers' sworn duty to perform. deducting the period of six (6) months' suspension eventually meted them. Nos. docketed as G.[15] As early as 18 December 1990 we have categorically ruled in the consolidated cases of Manila Public School Teachers Association v.[13] petitioners then filed a petition for review on certiorari with this Court on 1 October 1996. undertaken for essentially economic reasons. Civil Service Commission.[12] wherein this Court ruled that the public school teachers' mass actions of September/October 1990 were "to all intents and purposes a strike x x x constitut[ing] a concealed and unauthorized stoppage of. work which it was the teachers' duty to perform. The petitions must be denied in view of previous rulings of this Court already settling all the issues raised by petitioners. 126183. By resolution of 7 October 1997 we granted petitioners' motion for the consolidation of G.[18] we denied the claim that the teachers were thereby denied their rights to peaceably assemble and petition the government for redress of grievances reasoning that this constitutional liberty to be upheld. the non-payment or delay in payment of various fringe benefits and allowances to which they were entitled. Laguio Jr. among other grievances. Petitioners contend that the Court of Appeals grievously erred in affirming the CSC resolutions finding them guilty of conduct prejudicial to the best interest of the service when their only "offense" was to exercise their constitutional right to peaceably assemble and petition the government for redress of their grievances. No." Petitioners' contention that Secretary Cariño's decision to dismiss them was not supported by evidence was likewise rejected in view of petitioners' admissions and/or failure to refute the factual finding that petitioners actually joined the mass actions based on the report of absences submitted by their respective school principals. In so ruling the Court of Appeals cited Manila Public School Teachers Association v. Isidro Cariño[17] that the mass actions of September/October 1990 staged by Metro Manila public school teachers "amounted to a strike in every sense of the term. Petitioners therefore ask for exoneration or.to protest and pressure the Government to correct what. Hon. Laguio.[16] and Alliance of Concerned Teachers v. docketed as G. or absence from. It is a very desirable and necessary judicial practice that when a court has laid down a principle of law as applicable to a certain state of facts. SP No. Stand by the decisions and disturb not what is settled. 37808-14 likewise dismissing the petitions for lack of merit.

We again stressed that the teachers were penalized not because they exercised their right to peaceably assemble but because of the manner by which such right was exercised. The issue of whether back wages may be awarded to teachers ordered reinstated to the service after the dismissal orders of Secretary Cariño were commuted by the CSC to six (6) months' suspension is already settled.that the rights of free expression and assembly could not be lightly disregarded as they occupy a preferred position in the hierarchy of civil liberties . the CSC or even the Supreme Court . .. we have likewise already ruled in the Rolando Gan case[21] that the PBM ruling .[22] We affirmed the foregoing rulings in Bagana v.not the DECS. no one . i.[19] With respect to our ruling in PBM Employees Organization v. abandoning their classes and refusing to go back even after they had been ordered to do so. at the very least. must be exercised within reasonable limits so as not to prejudice the public welfare. they committed acts prejudicial to the best interest of the service by staging the mass protests on regular school days. Court of Appeals[24] we added that the persistent refusal of the striking teachers to call the mass actions by the conventional term "strike" did not erase the true nature of the mass actions as unauthorized stoppages of work the purpose of which was to obtain a favorable response to the teachers' economic grievances. We held in Bagana that the Court of Appeals committed no reversible error in affirming the CSC resolutions finding the teachers guilty of conduct prejudicial to the best interest of the service and imposing penalties of six (6) months' suspension without pay. Besides being a purely factual assertion which this Court cannot take cognizance of in a petition for review.e. Inc. Philippine Blooming Mills Co.other liberty. But the public school teachers in the case of the 1990 mass actions did not exercise their constitutional rights within reasonable limits. going on unauthorized and unilateral absences thus disrupting classes in various schools in Metro Manila which produced adverse effects upon the students for whose education the teachers were responsible. Court of Appeals[23] by denying a similar petition filed by another group of teachers who participated in the 1990 mass actions but who claimed to have been merely exercising their constitutional right to free assembly.. petitioners ask that in the event their exoneration is not decreed they be awarded back wages for the period when they were not allowed to work by reason of the supposed unjustified immediate implementation of the dismissal orders of Secretary Cariño while awaiting resolution of their appeals by the MSPB and CSC. Had the teachers availed of their free time recess.[20] invoked by petitioners. weekends or holidays .could have held them liable for their participation in the mass actions. be equated with the freedom of assembly and to petition the government for redress of grievances. But herein petitioners contend that classes were not actually disrupted because substitute teachers were immediately appointed by Secretary Cariño.to dramatize their grievances and to dialogue with the proper authorities within the bounds of law. In Bangalisan v. Considering the foregoing. As an alternative prayer.. the fact that the prompt remedial action taken by Secretary Cariño might have partially deflected the adverse effects of the mass protests did not erase the administrative liability of petitioners for the intended consequences thereof which were the very reason why such prompt remedial action became necessary. On the contrary. we find that respondent Court of Appeals did not err in sustaining the CSC resolutions finding petitioners guilty of conduct prejudicial to the best interest of the service.was not applicable to defend the validity of the 1990 mass actions because what were pitted therein against the rights of free expression and of assembly were inferior property rights while the higher consideration involved in the case of the striking teachers was the education of the youth which must. after classes.

Petitioners do not deny. Having been found to have actually participated in the illegal mass actions although found answerable for a lesser offense.In Bangalisan v. those in Bangalisan were also teachers who participated in the 1990 mass actions for which they were dismissed by Secretary Cariño but ordered merely suspended for six (6) months by the Civil Service Commission. in which case the same shall be executory only after confirmation by the Secretary concerned. the same is authorized by Section 47. 292. Abellera v. for having participated in the 1990 illegal mass actions. In Jacinto v.. thus: "The Secretaries and heads of agencies and instrumentalities. rules and regulations. thus warranting an award of back wages the Court said As to the immediate execution of the decision of the Secretary against petitioners. Neither could petitioners be considered to have been exonerated from the charges levelled against them by Secretary Cariño from the mere fact that they were found guilty only of conduct prejudicial to the best interest of the service by the CSC. petitioners could not be considered as fully innocent of the charges against them. etc. their prayer for back wages must be denied conformably with . their unjustified abandonment of classes to the prejudice of their students but granted the claim of Merlinda Jacinto who was absent because of illness. It must be remembered that Secretary Cariño charged petitioners with grave misconduct. Like herein petitioners. Thus having given cause for their supension. Clearly the CSC decision did not proceed from a finding that petitioners did not commit the acts complained of. immediate implementation even pending appeal was clearly sanctioned by the aforequoted provision of the Administrative Code of 1987. On a plea that the immediate implementation of the dismissal orders of Secretary Cariño was unjustified. Peralta[28] being cases which involved the unjustified immediate execution of the dismissal orders of the then Civil Service Commissioner pending appeal to the Civil Service Board of Appeals are therefore not applicable to justify petitioners' prayer. In case the decision rendered by a bureau or office is appealable to the Commission. namely. two (2) circumstances necessary for the grant of back wages in administrative disciplinary cases. And since it was already the final dismissal orders of Secretary Cariño which were being carried out. nay they even admit. having participated in the 1990 mass actions. City of Baguio[27] and Bautista v. the same shall be executory except when the penalty is removal. The cases cited by petitioners to support their prayer for back salaries.[26] Hence. Their decision shall be final in case the penalty imposed is suspension for not more than thirty days or fine in an amount not exceeding thirty days' salary.. paragraph (2). Court of Appeals[31] we again denied the claim for back wages of teachers found to have given cause for their suspension. of Executive Order No. the immediate execution of the dismissal orders could not be considered unjustified. being legal. On appeal the CSC while affirming the factual finding that petitioners indeed participated in the mass actions found them liable only for conduct prejudicial to the best interest of the service. i.e. gross neglect of duty.[30] Thus in Bangalisan we denied the claim for back wages of those teachers who were found to have actually participated in the 1990 mass actions but granted the claim of one Rodolfo Mariano who was absent only because he attended the wake and interment of his grandmother. provinces. Court of Appeals[25] we resolved the issue in the negative on the ground that the teachers were neither exonerated nor unjustifiably suspended. gross violation of civil service law.[29] Being found liable for a lesser offense is not equivalent to exoneration. cities and municipalities shall have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction.

of the Department of Public Works and Highways (DPWH) by the Regional Director. 110276 July 29. protested the appointment in a letter 4addressed to the Regional Director of the DPWH. Senior Civil Engineer in the Design and Planning section of the Cagayan South Engineering District. Petitioner then appealed to the Merit System Protection Board (MSPB) of the Civil Service. CARONAN. in which he complained that the candidates for promotion had not been fairly evaluated by the DPWH Central Review Board as their direct supervisors were never consulted. chanroblesvirtualawlibrary chanrobles virtual law library The Secretary of DPWH approved the recommendation. 1990. 3 chanrobles virtual law library Private respondent Severino G. J. No. HON. No costs. 1994 ORLANDO G. 2. the petitions are DENIED and the assailed Decisions of the Court of Appeals dated 29 November 1995 and 24 April 1996 are AFFIRMED. chanroblesvirtualawlibrary chanrobles virtual law library . Cagayan South Engineering District. Caronan. He alleged that the complaints committee of the DPWH erred in (1) its interpretation of the next-in-rank principle. dismissing petitioner Orlando Umoso's appeal from the decision of the Merit System Protection Board 2. on May 7. WHEREFORE. Tuguegarao. Petitioner moved for a reconsideration but his motion was denied in a resolution dated October 5. chanroblesvirtualawlibrary chanrobles virtual law library Petitioner is a Senior Civil Engineer who was promoted to the position of Supervising Civil Engineer I in the office of the District Engineer. issued a Memorandum 5for the DPWH Department Secretary. CIVIL SERVICE COMMISSION and SEVERINO G. MENDOZA. Respondents. Cagayan. recommending that Caronan's protest be upheld and petitioner Umoso be appointed to the position of Senior Civil Engineer to be vacated by the respondent Caronan. 1990. UMOSO. DPWH Regional Office No. upholding the appointment of private respondent Severino Caronan as Supervising Civil Engineer I by the Secretary of the Department of Public Works and Highways.: This is a petition for certiorari to set aside the Resolution 1of respondent Civil Service Commission (CSC). Petitioner. Private respondent claimed that he was entitled to preferential consideration. SO ORDERED. in considering protestant/private respondent as more senior than the protestee/petitioner in the service and (2) in failing to give due consideration to the recommendation of the District Engineer's placement and evaluation committee. vs. being the employee next in rank in the Planning and Design Section where the contested position belongs.R. EN BANC G.settled rulings of this Court. chanroblesvirtualawlibrary chanrobles virtual law library The letter/protest of private respondent was referred to the complaints committee of the DPWH which.

8 chanrobles virtual law library Petitioner Umoso moved a second time for reconsideration of the MSPB decision. To hold the view that the Secretary has no authority to review the appointment issued by a Regional Director to second level position in a Department would create a false impression that the Secretary and the Regional Director are of the same rank. This is in line with a number of Supreme Court decisions upholding the discretion of the appointing authority on matters of appointment. 1993. The authority of the Regional Director to appoint is merely a delegated function. the MSPB denied petitioner's motion for lack of merit and sustained the appointment of private respondent Caronan to the position of Supervising District Engineer. chanroblesvirtualawlibrary chanrobles virtual law library In its Resolution No. 9 chanrobles virtual law library Petitioner Umoso then appealed 10to the Civil Service Commission (CSC). on the basis of which it rendered a decision on June 28. He claims that he is qualified and that he is the "next-in-rank. Contrary to the allegation of Umoso. chanroblesvirtualawlibrary chanrobles virtual law library As protestant Caronan. 12 chanrobles virtual law library Petitioner alleges grave abuse of discretion on the part of the Civil Service Commission. 1992. the approval of his appointment to the said position has not reached a semblance of finality which may vest in him the right to a security of tenure. chanroblesvirtualawlibrary chanrobles virtual law library On January 31. when Caronan protested the appointment of Umoso to the position of SCE I issued by the Regional Director and the DPWH Secretary gave due course to the protest by ordering the appointment of protestant Caronan in lieu of Umoso. DPWH. the Secretary of DPWH is merely exercising his power and authority as Head of the Department. his appointment to said contested position should not be disturbed. In its decision it stated: Considering. the CSC ruled that the Secretary of Public Works and Highways has ultimate power to appoint: The power of the Secretary to appoint can however be delegated to the Regional Directors. among others. having taken cognizance of Caronan's nine (9) years of direct exposure/experience in the Planning and Design Section where the contested position is located." Above all he contends that in fact his appointment was . the action of the Regional Director can be reviewed and set aside by the Secretary who is the source of the delegated power.The MSPB made a comparative study of the qualifications of Umoso and Caronan. that Caronan is the choice of the Secretary. He alleged that the appointing authority in the regional sector is lodged in the Regional Director and not in the Department Head/Secretary. the appointment of Caronan as Supervising Civil Engineer I must be upheld. who is the choice of the Secretary of DPWH. therefore. of administrative control and supervision over the personnel thereat including appointment. therefore his appointment by the Regional Director should be upheld. Inherent in his position is the power. clearly meets the requirements for permanent appointment to the contested position. 93-748 11dated February 26. 1991. As such. in view of the timely protest of Caronan. It held that the Secretary has administrative supervision and control over the entire department including the power to review appointments issued by the DPWH Regional Director. chanroblesvirtualawlibrary chanrobles virtual law library Thus. 7dismissing the appeal of petitioner Umoso for lack of merit. raising as sole issue whether or not the DPWH Secretary has the authority to set aside an appointment made by the Regional Director of an appointee who meets the qualifications required by the position.

A. Indeed. showing the following: EDUCATION: . such recommendation was nonetheless subject to review and approval by the Department Secretary. 13 chanrobles virtual law library While preferential consideration is accorded the "next-in-rank" employee in the event of a vacancy for a higher position. It is the Secretary's adoption of the Committee's endorsement in favor of private respondent which constituted the authoritative determination or choice of the employee who will occupy the contested position. 1080 (Civil Engineer) Based on these qualifications. which recommendations were upheld by the Regional Director. the appointing power is vested in the Department Head/Secretary. however. the Qualifications Standards of the DPWH prescribes the following minimum requirements for the contested position (Supervising Civil Engineer I) 18. to wit: EDUCATION . such consideration does not serve to ensure appointment in his favor. The rule neither grants a vested right to the holder nor imposes a ministerial duty on the part of the appointing authority to promote such person to the next higher position. whose recommendations were approved by the Regional Director. prepared a manning list of recommendees for the positions in the Regional Offices of Region II and had to submit the list to the DPWH Secretary for approval. revision. modification and reversal of the Department Secretary. the DPWH Review Board. even if petitioner was recommended to the contested position by the Selection and Placement Committee and the Central Review Board.R. that fact alone does not impose on the appointing authority the duty to appoint petitioner. Such power. The determinations of both bodies as delegates of the DPWH Secretary in the matter of personnel actions are tentative in nature. it has been declared time and again that even if petitioner occupies a "next-in-rank" position. 15Thus.Bachelor's degree in Civil Engineering EXPERIENCE . The rule in the civil service is that appointment. 14 chanrobles virtual law library Secondly. to the approval. 16In the analogous case of Ernesto Perez v. Merit System Protection Board.One (1) year of responsible experience in professional civil engineering work ELIGIBILITY . in its decision. the MSPB. may be delegated to the regional director subject. 17this Court stated: The determination of the DPWH Regional Office in Sorsogon that petitioner was qualified for the contested position did not preclude the Committee from overturning the same.endorsed by the Selection and Placement Committee and the Central Review Board. In the case at bar. however. chanroblesvirtualawlibrary chanrobles virtual law library First of all. which is essentially within the discretionary power of whosoever it is vested. chanroblesvirtualawlibrary chanrobles virtual law library We find this petition without merit. is subject only to the condition that the appointee should possess the qualifications required by law. prepared a comparative study of the qualifications of the contestants Umoso and Caronan. pursuant to the Reorganization Guidelines.

who is the choice of the Secretary of DPWH. to wit: Laborer (3/16/66-12/31/66). clearly meets the requirements for permanent appointment to the contested position should not be disturbed. ELIGIBILITY: Appellant Umoso possesses R. has been in the government service for ten (10) years during which period he held the following positions in the DPWH: Associate Civil Engineer (6/8/78-1/7/79). the Civil Service Commission has no alternative but to attest to the appointment in accordance with the Civil Service Law. 1993 is AFFIRMED. EXPERIENCE: Appellant Umoso has been in the government service for eighteen (18) years. Associate Civil Engineer (12/1/78-12/31/80). Civil Engineer (1/1/81-9/30/82). Civil Engineer Aide I (9/16/74-6/30/75). Appellee Caronan has R. chanroblesvirtualawlibrary chanrobles virtual law library SO ORDERED. However. and Senior Civil Engineer (10/1/82-1/1/89) at the DPWH. Civil Engineer (1/8/79-1/15/80) and Senior Civil Engineer (1/16/80-present). in dismissing the appeal of petitioner Umoso. 20The Commission has no authority to revoke an appointment on the ground that another person is more qualified for a particular position. the petition for certiorari is hereby DISMISSED for lack of merit. since between Caronan and Umoso the former was chosen by the Department Secretary of the DPWH. hold: As protestant Caronan. may only approve or disapprove the appointment after determining whether or not the appointee possesses the appropriate Civil Service eligibility and the required qualifications. 22 chanrobles virtual law library WHEREFORE. Construction Foreman (1/1/76-11/30/78). on the other hand. under P. The resolution issued by the Civil Service Commission dated February 26. Survey Aide (1/1/67-2/15/70) at the National Irrigation Administration. 807. No. chanroblesvirtualawlibrary chanrobles virtual law library Appellee Caronan.Appellant Umoso is a Bachelor of Science in Civil Engineering graduate.A. 21Correctly then did the CSC. Civil Engineer II (7/1/75-12/31/75). EN BANC . 19 chanrobles virtual law library It is evident that both aspirants sufficiently meet the qualification requirements for permanent appointment to the contested position. 1080 (Civil Engineer) eligibility. holding these positions for specified periods. This is in line with a number of Supreme Court decisions upholding the discretion of the appointing authority on matters of appointment. while protestee Caronan is Bachelor of Science in Civil Engineering graduate with 24 units leading to Master in Public Administration (MPA).A. 1080 (Civil Engineer) eligibility. The Commission.D.

BELLOSILLO. Cashier II of the Department of Environment and Natural Resources (DENR).: The primordial purpose of our civil service laws is to establish and maintain a merit system in the selection of public officers and employees without regard to sex.. petitioner Alexis D. Isidro was succeeded a year later by Eleanor Villarico who served until 1990. TOMAS. Prila notified Mancita that her services were being terminated effective at the close of office hours on 1 July 1985 on the ground that the Office of MDC was abolished as a result of the reorganization of the local government of Pili. was appointed Officer-inCharge of the Municipal Budget Office of Pili. social status or political affiliation. STO. HON. the authority to appoint the Budget Officers of the different local government units devolved upon the Secretary of the Budget. was temporarily appointed Municipal Budget Officer of Pili by Secretary Guillermo N. where tenurial rights are subject to the whims of officialdom. As a result. RAMON P. or for more than a year. Nacario who was then the Municipal Budget Officer was appointed MPDC on 10 June 1985 to take effect on 1 July 1985. On 1 January 1985 the Joint Commission on Local Government Personnel Administration approved the reorganization plan and staffing pattern of the Municipality of Pili. No. He was later replaced by Francisco Deocareza. the former Budget Officer of Naga City. On 14 March 1983 when the Local Government Code took effect. 38 creating and organizing the Office of MPDC. the office was renamed Municipal Planning and Development Coordinator (MPDC). San Luis. the former Municipal Budget Officer of Baao.G. JR.. color. in a permanent capacity. which included the local Budget Office.R. ERENETA. JR. PATRICIA A. 110954 May 31. When control over the Local Government Officers Services was returned to the . 3 In a letter dated 17 June 1985 Mayor Anastacio M. was nationalized and placed under the Department of Budget and Management. petitioners. 4 Nacario was replaced by Digna Isidro as Municipal Budget Officer. Mancita was appointed Municipal Development Coordinator (MDC) of Pili. Juan Batan. 1995 DELFIN N. On 1 August 1980 Filomena R. and PRESCILLA B. In the meantime. 1 On 28 March 1983 the Sangguniang Bayan of Pili approved Resolution No. owing to the lack of a qualified candidate that the Secretary of the Budget could appoint. Camarines Sur. AND ALEXIS D. When Villarico resigned on 1 March 1990 the Budget Office became vacant until 30 September 1991. Camarines Sur. vs. respondents. DIVINAGRACIA. In 1988 the Local Government Officers Services. Private respondent Prescilla B. 2 Mancita held over the position until 1985. SAN LUIS. J. Carague of the Department of Budget and Management. But there are times when appointments to public office are dominated by partisan favoritism and patronage. in the same capacity. 5 On 1 October 1991. NACARIO.

503). 11 While the petition of Mancita was pending with us. Sto. docketed as Civil Case No. Jr. Mancita was in fact qualified for the newly-created position of MPDC since the powers and duties of the two positions were essentially the same. Mayor Divinagracia explained the factual circumstances behind the ouster of Mancita and the resulting appointment of Nacario to the position of MPDC. 12 On 15 March 1993 Mayor Divinagracia wrote to CSC Chairperson Patricia A. 7160 as implemented by E. Padilla we granted the petition and held that the lower court had no jurisdiction over the case since all decisions. orders and resolutions of the Civil Service Commission were subject to review only by this Court on certiorari under Rule 65 of the Rules of Court. Nacario sent a query to public respondent Commission asking about her status as a permanent employee of the Municipality of Pili after she had accepted the position of MPDC. rising from the ranks until he was appointed Cashier II based in Legaspi City.O. 90-657. holding that the Office of the Municipal Development Coordinator was abolished by the Local Government Code of 1991 and not by the reorganization of the Municipality of Pili as claimed by Mayor Prila. Presiding Judge Ceferino P.local government units by virtue of the Local Government Code of 1991 (R. 8 On 20 June 1989 the MSPB declared her separation from the service illegal. Divinagracia. this time in a permanent capacity. arguing that San Luis was validly appointed by the . Justice Teodoro R. On 8 November 1990 private respondent Prescilla B. In a letter dated 8 December 1992 public respondent opined that the reinstatement of Mancita to the position of MPDC was not a valid cause for Nacario's termination. Mayor Delfin N. 31 issued a temporary restraining order enjoining the implementation of the questioned CSC resolution and set the date for the hearing of the application for preliminary injunction. Tomas. Sto. According to the MSPB. Barcinas of Br. Mancita then filed a special civil action for certiorari under Rule 65 before this Court questioning the denial of her motion. Mancita appealed her termination to the Merit Systems and Protection Board (MSPB). Her motion was denied. the position he was holding when appointed Municipal Budget Officer of Pili. The MSPB ordered Mayor Divinagracia to reinstate Mancita to the position of MPDC or to an equivalent position. Mayor Divinagracia informed private respondent Nacario that she was being relieved of her position as MPDC effective 16 November 1990 in order to comply with the MSPB decision to reinstate Mancita as MPDC. 6 San Luis started in the career civil service in 1977 as a casual clerk in the DENR. 9 The decision of MSPB was appealed by Mayor Divinagracia to the Civil Service Commission but the appeal was dismissed on 16 July 1990 per CSC Resolution No. and to pay her backwages from the date of her separation. 90-657. Elium Banda. 31. P-17819. Mayor of Pili. Mancita. Divinagracia. Br.. against CSC Chairperson Patricia A. Nacario filed a Petition for Declaratory Relief and Prohibition with Preliminary Injunction with the Regional Trial Court of Pili. Regional Director of CSC in Region 5. Tomas seeking a reconsideration of her opinion of 8 December 1992. Through Mr. 10 On 15 October 1990. Mancita filed a motion to dismiss on the ground that the trial court had no jurisdiction over the subject matter. by petitioner Delfin N. and Filomena R. San Luis was reappointed to the same position on 22 June 1992.A. praying for the annulment of CSC Resolution No. 7 Meanwhile. and since she was the former Municipal Budget Officer she had the right to return to that position.

upon motion of petitioners.O. 15 According to petitioners. 93-1996 denying the request of Mayor Divinagracia for a reconsideration. entitled to security of tenure. in her own words. to his former position once his appointment is subsequently disapproved. Jr. San Luis was also denied his right to be heard when public respondent ordered him to vacate his position without affording him an opportunity to contest the claim of Nacario thus violating his constitutional right to due process. San Luis cannot hold on to the position of Municipal Budget Officer. Nacario maintains that her "acceptance" of the position of MPDC which she admits is of the same rank. 13. 13 On 27 May 1993 public respondent issued CSC Resolution No. On 5 October 1993. in a chain of promotions. In fact. grade and level. Rule VI. 18 We deny the petition. Nacario who is protected by law in her security of tenure should be reinstated thereto. On the other hand. salary grade and level was motivated by her respect for Mayor Prila who was then her superior. of the Omnibus Rules Implementing Book V of E. 292. 16 Upon the other hand. 13.O. respondent Prescilla B. Rule VI. They submit that the term "chain of promotions" must not be interpreted in a literal. 93-1996 be nullified for having been issued with grave abuse of discretion. otherwise known as the Revised Administrative Code of 1978 in directing the restoration of Nacario to her former position. Tomas and Ereneta. 292. private respondent claims that she did not voluntarily apply for transfer from the Budget Office to the Office of MPDC but was constrained to "accept" the new position because of Mayor Prila. 13 mandates the return of an appointee. 13. . public respondents Sto. Public respondent relied on Sec. No. 17 For their part. she applied for the position of Budget Officer with the Department of Budget and Management while she was MPDC indicating that she did not abandon or relinquish her former position as alleged by petitioners. rigid and narrow sense but must be construed liberally in favor of private respondent who merely accepted the position of MPDC to accommodate her superior unaware that her new appointment thereto would be infirmed. of the Omnibus Rules Implementing Book V of E. Petitioners further contend that Nacario was deemed to have vacated her position as Budget Officer when she accepted her appointment as MPDC considering that there were several appointments made to the Budget Office in the past eight (8) years since her transfer. insist on the application to the present case of the automatic reversion rule provided under Sec. Upholding Nacario's right to security of tenure the CSC held that the reinstatement of Mancita to the position of MPDC could not be a valid cause for the termination of Nacario. according to her. 292) does not apply to the present case because the rule covers only appointments in a chain of promotions and not where a public officer was merely transferred to another position of the same rank. of the Omnibus Rules Implementing the Revised Administrative Code (E..Secretary of the Budget and confirmed by the CSC. Petitioners have come to us for relief praying that CSC Resolution No. Sec. Rule VI. 14 Petitioners contend that Sec. this Court issued a status quo ante order enjoining the enforcement of the questioned CSC order.O. "a passive participant in the movement of personnel" in the municipal government of Pili having acted as a "subservient public official" in assuming the position of MPDC. Petitioner Alexis D. hence. She was.

Moreover.20 per annum 21 as Budget Officer to P27. 292 provides that — Sec. The disapproval of the appointment of a person proposed to a higher position invalidates the promotion of those in lower positions and automatically restores them to their former positions. Under the aforecited section. Sec. 26 as in the instant case..732.00 per annum 22 as MPDC. 20 A careful examination of the qualifications. par. the Human Resource Management Officer of Pili. salary grade and level. 13 of the Omnibus Rules Implementing Book V of E. If not. Omnibus Rules Implementing Book V of E. the movement of Nacario from the Budget Office to the Office of MPDC cannot be considered a promotion for the term connotes an increase in duties and responsibilities as well as a corresponding increase in salary. 5. It is also interesting to note that there was. the other two (2) requisites are not also present. 292. from P30. the appointments of the parties concerned were not simultaneously submitted to the CSC for approval — the appointment (permanent) of Nacario was approved by the CSC on 13 June 1985 while the appointment (permanent) of San Luis was approved by the CSC on 9 February 1993 — and. To start with. the ouster of Nacario from the Office of MPDC was a result of the MSPB decision directing the reinstatement of Mancita and not because the CSC disapproved her appointment as MPDC. there must first be a series of promotions. this Court shall depart from such interpretation when it is clearly erroneous 25 or when there is no ambiguity in the rule. 475 and 476 of the Local Government Code of 1991 shows that the latter office is not burdened with more duties and responsibilities than the former. ordinary and popular meaning. i.505. The essential requisites prescribed under Sec. 19 Conformably therewith. Martus. par. Rule VII. all appointments are simultaneously submitted to the CSC for approval.O. we find the movement of Nacario one of lateral transfer. However.Sec. 13 by the CSC is entitled to great weight and respect. 3. 3. the CSC disapproves the appointment of a person proposed to a higher position. a reduction in the basic salary of Nacario. 13 do not avail in the case at bench. who certified that per Position Allocation List (PAL) of the municipality the Budget Officer and MPDC are of equal level. While the contemporaneous construction of Sec.O. then private respondent is entitled to be protected in her security of tenure. 5. 23 This was attested to by Vilma J. 24 Aside from the lack of a series of promotions.e. private respondent admitted in her comment and in her memorandum that the position of Budget Officer and MPDC were of the same rank. of Rule VII provides that — . powers and duties of a Budget Officer and an MPDC provided under Secs. on the contrary. second. the affected persons are entitled to the payment of salaries for services actually rendered at a rate fixed in their promotional appointments. 13. All appointments involved in a chain of promotions must be submitted simultaneously for approval by the Commission. and third. and yield to the letter of the law taking its terms in their plain. before a public official or employee can be automatically restored to her former position. 27 Let us now examine whether the lateral transfer of private respondent was validly made in accordance with Sec.

Lopez 31 we distinguished between a transfer and a promotion and laid down the prerequisites of a valid transfer thus — A transfer is a "movement from one position to another which is of equivalent rank. without break in service. It was only seven (7) days after Nacario's appointment when Mayor Prila informed Mancita that her services were being terminated. (emphasis supplied) According to Nacario she never applied or sought appointment by transfer to the position of MPDC since she even had no prior knowledge of her appointment. and is usually accompanied by an increase in salary" . this did not discourage her from trying to regain her former position. Simply put. Mayor Prila was so determined in terminating Mancita that he conveniently pre-arranged her replacement by Nacario. Although Nacario continued to discharge her duties. Undaunted. regardless of the laws and regulations governing the civil service. . Private respondent was the Budget Officer of Pili for almost eight (8) years from August 1980 until her transfer in July. Although Nacario was not informed of the reasons therefor she did not complain to the mayor or appeal her case to the CSC if in fact the same was not made in the interest of public service. She was not however successful. upon assumption of office. Nacario did not question her transfer because she revered the mayor and did not in any way intend to displease him. Even as early as 1968. no permanent transfer can take place unless the officer or employee is first removed from the position held. the employee concerned shall be informed of the reasons therefor. even those permanent appointees who are more secured and protected in their tenurial right. (emphasis provided) . Victory at the polls should not be taken as authority for the commission of such illegal acts. 1988. 29 we held that — There are altogether too many cases of this nature. advancement or reduction or a transfer that aims to "lure the employee away from his permanent position. If the employee believes that there is no justification for the transfer." cannot be done without the employees' consent. For that would constitute removal from office. A transfer that results in promotion or demotion." Promotion is the "advancement from one position to another with an increase in duties and responsibilities as authorized by law. In Sta. which was not even vacant at that time. 30 Nacario appeared to be satisfied with her work and felt fulfilled as Budget Officer until Mayor Prila appointed her MPDC to fill up the position. For it is not common among local officials. 28 She assumed the new position only in order to comply with the move of Mayor Prila to supposedly "reorganiz