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Macalincag v.

Chang (Paras, 1992) The TC ruled that for a preventive suspension to be implemented, there
are 2 steps: 1) service of a copy of said order on the respondent and 2)
FACTS: Petitioner Carlos signed a formal administrative charge designation of his replacement. It ruled that until an acting municipal
approved by petitioner Macalincag against respondent Chang for treasurer is appointed to replace the respondent, the order of
dishonesty, neglect of duty and acts prejudicial to the best interest of preventive suspension is incomplete and cannot be said to have taken
the service. This was based on the preliminary evaluation of the COA effect.
Report and the affidavit-complaints of Councilor Brillante
This TC’s ruling is untenable.
Petitioner Macalincag issued an Order of Preventive Suspension against
Chang. He also sent a letter to the "Governor, Metro Manila Preventive Suspension is governed by Sec. 41 of PD 8071 (Civil Service
Commission" seeking to implement the order and recommending that Law). Under the said law, designation of the replacement is not a
an Officer-in-Charge be designated from the ranks of qualified Municipal requirement to give effect to the preventive suspension. On the
Treasurers and Assistant Municipal Treasurers in Metro Manila contrary, the Sec. 156 LGC provides for the automatic assumption of
the assistant municipal treasurer or next in rank officer in case of
Respondent Chang filed a petition for prohibition with writ of preliminary suspension of the municipal treasurer.
injunction before the RTC against petitioners Macalincag and Carlos
Thus the Order of Preventive Suspension of respondent Chang became
RTC denied Chang’s application for a writ of preliminary injunction, and effective upon his receipt, which is presumed when he filed a complaint
sustained the power of the Secretary of Finance to issue the Order of in the TC preventing the implementation of such Order. Otherwise
Preventive Suspension stated, the designation of the OFFICER-IN-CHARGE to replace
respondent Chang is immaterial to the effectivity of the latter's
Chang filed an MR raising a new argument by invoking Sec. 8 EO No. suspension. A contrary view would render nugatory the very
392 "Constituting the Metropolitan Manila Authority, providing for its purpose of preventive suspension.
powers and functions and for other purposes." RTC granted Chang's
application for a writ of preliminary injunction, hence, this petition Chang argued that Executive Order No. 39 gave rise to the creation of
the Metropolitan Manila Authority and vested in the President the power
ISSUE: WoN the Secretary of Finance has jurisdiction to issue an Order to appoint municipal treasurers in Metro Manila. As the power to
of Preventive Suspension against the acting municipal treasurer of suspend and remove a municipal official is an incident of the power to
Makati, Metro Manila? YES appoint, he maintained that it is the President who may suspend or
remove him.
Petitioners contend that the Order of Preventive Suspension became
effective upon receipt by respondent Chang and not upon the Under Sec. 8 of Executive Order No. 3922 and laws prior to this, the
designation of an officer-in-charge to replace him; that the Order of power of appointment was made subject to Civil Service Laws and the
Preventive Suspension became effective before the issuance of EO No. approval of the Secretary of Finance. Thus, the intention of the
392 and, thus, can no longer be enjoined because of the transfer of the legislations to follow the Civil Service Laws, Rules and Regulations is
power to suspend from the Secretary of Finance to the President and
that the power to suspend and remove municipal officials is not an 1
incident of the power to appoint. The proper disciplining authority may preventively suspend any subordinate
officer or employee under his authority pending an investigation, if the charge
against such officer or employee involves dishonesty, oppression or grave
Respondent Chang argues that a government officer is not suspended
misconduct, or neglect in the performance of duty, or if there are reasons to
until someone has assumed the post and the officer subject of the
believe that the respondent is guilty of charges which would warrant his
suspension order has ceased performing his official function; that the
removal from service
implementation of the suspension order was overtaken by the issuance
of EO No. 392 creating the Metropolitan Manila Authority and that the 2
All city and municipal treasurers, municipal assessors and their assistants as
power to discipline is vested solely on the person who has the power to well as other officials whose appointment is currently vested upon the
appoint. Metropolitan Manila Commission shall be appointed by the President of the
Philippines, upon recommendation of the Council, subject to the Civil Service
HELD: law, rules and regulations.
unmistakable. ISSUE/HELD
WoN a promotional appointment is covered by the legal
Correspondingly, the power to discipline is vested under Sec. 37 of P.D. prohibition against nepotism - YES
No. 807 in heads of departments, agencies and instrumentalities,
provinces and chartered cities who have original jurisdiction to
investigate and decide on matters involving disciplinary action. Stated Debulgado’s contention
differently, they are the proper disciplining authority referred to in Sec. • The prohibition against nepotic appointments is applicable only
41 of the same law. to original appointments and not to promotional appointments.

The Office of the Municipal Treasurer is unquestionably under the Ratio

Department of Finance as provided for in Sec. 3, P.D. No. 477. Hence,
the Secretary of Finance is the proper disciplining authority to issue the • Sec. 59 of EO 292 provides that “All appointments in the xx city
preventive suspension order. More specifically acting Secretary of xxx governments xxx made in favor of a relative of the
Finance, Macalincag, acted within his jurisdiction in issuing the aforesaid appointing xxx authority, xxx, are hereby prohibited.
order. • The prohibition was cast in comprehensive and unqualified
Even assuming that the power to appoint, includes the power to
discipline, acting Secretary Macalincag as Secretary of Finance is an • It explicitly covers "all appointments", without seeking to
alter ego of the President and therefore, it is within his authority, as an make any distinction between differing kinds or types of
alter ego, to preventively suspend respondent Chang. appointments.
• Section 59 covers all appointments to the national, provincial,
Debulgado v. CSC | Feliciano, J. (1994)
city and municipal government, as well as any branch or
instrumentality thereof and all government owned or controlled
FACTS corporations.
• Mayor Debulgado is the incumbent mayor of San Carlos City. He • Thirdly, there is a list of exceptions set out in Section 59 itself,
appointed his wife Victoria Debulgado as General Services but it is a short list: (a) persons employed in a confidential
Officer. capacity;(b) teachers;(c) physicians; and(d) members of the
• Before her promotion in 1992, she had been in the service of Armed Forces of the Philippines.
the City Government for about 32 years. • The list does not contain words like "and other similar
• On 1 October 1992, Victoria assumed the new post, and positions."
commenced discharging the functions, of General Services
o Thus, the list appears to us to be a closed one, at least
Officer of San Carlos City and receiving the regular salary
closed until lengthened or shortened by Congress.
attached to that position.
• On 16 December 1992, Civil Service Commission received a • Under the IRR, any action denoting movement or progress of
personnel in the civil service shall be known as personnel action.
letter from Congressman Tranquilino B. Carmona calling
attention to the promotional appointment issued by Mayor o Such action shall include promotion, transfer,
Debulgado in favor of his wife. reinstatement, reemployment, detail, secondment,
• The Commission found that Mayor Debulgado was the lawful reassignment, demotion and separation.
husband of the appointee, Victoria, the two (2) having been o All original appointments and personnel actions
married sometime in 1964. shall be in accordance with these Rules and with
• The Commission recalled the approval issued by Director other regulations and standards that may be
Escobia and disapproved the promotion of Victoria upon the promulgated by the Commission.
ground that that promotion violated the statutory prohibition • Both an original appointment and a promotion are particular
against nepotic appointments. species of personnel action.
• The original appointment of a civil service employee and all Director Escobia, CSC Field Office, Bacolod City, that
subsequent personnel actions undertaken by or in respect of appointment become complete. She acquired a vested right
that employee such as promotion, transfer, reinstatement, to that position and cannot, according to petitioners, be
reemployment, etc., must comply with the Implementing Rules removed from that position without due process of law.
including, of course, the prohibition against nepotism in Rule
XVIII. Ratio
• Such appointment must comply with all applicable rules and • That action was not the imposition of an administrative
prohibitions, including the statutory and regulatory prohibition disciplinary measure upon Victoria, nor upon Mayor Debulgado.
against nepotism.
• Career service positions may be filled up only by appointment, • The Commission, in approving or disapproving an appointment,
either permanent or temporary. only examines the conformity of the appointment with
applicable provisions of law and whether the appointee
o A designation of a person to fill it up because it is possesses all the minimum qualifications and none of the
vacant, is necessarily included in the term appointment, disqualifications.
for it precisely accomplishes the same purpose.
• Victoria was afforded an opportunity to be heard when she filed
• Whether in an original or a promotion appointment, may in fact a motion for reconsideration with the Commission and there
be quite loyal and efficient and hard-working; yet that challenged the disapproval by the Commission.
circumstance will not prevent the application of the prohibition
certainly in respect of the original appointment. • Because the promotional appointment in favor of Victoria was a
violation of Section 59, it was null and void as being
• That the prohibition applies quite without regard to the actual contra legem.
merits of the proposed appointee and to the good intentions of
• Section 9 of the Implementing Regulations sets out the principal
the appointing or recommending authority, and that the
legal consequence of an appointment issued in disregard of the
prohibition against nepotism in appointments whether original or
statutory prohibition:
promotional, is not intended by the legislative authority to
penalize faithful service. o Sec. 9. An appointment accepted by the appointee
• In other words, Section 59 insures the objectivity of the cannot be withdrawn or revoked by the appointing
appointing or recommending official by preventing that authority and shall remain in force and effect until
objectivity from being in fact tested. disapproved by the Commission. However, an
appointment may be void from the beginning due to
• Section 59means exactly what it says in plain and ordinary fraud on the part of the appointee or because it was
language: it refers to "all appointments" whether original issued in violation of law.
or promotional in nature. • A void appointment cannot give rise to security of tenure
• It follows that the promotional appointment of Victoria by her on the part of the holder of such appointment.
husband, Mayor Debulgado, falls within the prohibited class of • The Commission is empowered to take appropriate action on all
appointments: appointments and other personnel actions, e.g., promotions.
o Such power includes the authority to recall an
ISSUE/HELD appointment initially approved in disregard of applicable
WoN the CSC committed GADALEJ in recalling and disapproving provisions of Civil Service law and regulations.
the promotional appointment given to Victoria after the • The promotional appointment of Victoria being void "from the
Commission, had earlier approved that same appointment, beginning," the approval issued by Director Escobia did not, as it
without giving an opportunity to Victoria to explain her side on could not, cure the intrinsic vice of that appointment.
the matter. – NO
CSC v. Tinaya | Sandoval-Guttierez, J. (2005)
Debulgado’s Argument
• The promotional appointment of Victoria was approved by FACTS
• Pastor B. Tinaya was issued a permanent appointment as as municipal assessor on November 16, 1993 is permanent - YES
municipal assessor of the Municipality of Tabontabon by
Municipal Mayor Priscilla R. Justimbaste. CSC’s Argument
• On December 1, 1993, the CSC Regional Office approved the • The CA erred in holding that Tinaya’s original appointment as
appointment but only as temporary. municipal assessor on November 16, 1993 is permanent.
o The appointment was made temporary due to
respondent’s non-submission of his service record with Ratio
respect to his three (3)-year work related experience • Under the Constitution, the Civil Service Commission is the
prior to his employment as municipal assessor, as central personnel agency of the government charged with the
required by the CSC Revised Qualification Standards. duty of determining questions of qualifications of merit and
• On the same day his appointment was approved, Tinaya took fitness of those appointed to the civil service.
his oath and assumed the duties of his office. • Under the Civil Service Law, the CSC has the power to
• 15 days after the approval of his appointment, Tinaya married “Approve all appointments, whether original or
Caridad R. Justimbaste, daughter of Mayor Priscilla Justimbaste. promotional, to positions in the civil service, except those
• Meanwhile, Mayor Priscilla Justimbaste was on leave of absence. of presidential appointees, members of the Armed Forces of the
Vice-Mayor Rosario C. Luban was then the Acting Mayor. Philippines, police forces, firemen, and jailguards, and
disapprove those where the appointees do not possess
• On December 1, 1994, after the expiration of Tinaya’s
the appropriate eligibility or required qualifications.”
temporary appointment, Acting Mayor Luban appointed him
anew as municipal assessor effective that day. • To make an appointment fully effective, an appointment to a
civil service position must comply with all legal requirements.
o The appointment was permanent.
o Thus, the law requires the appointment to be submitted
• The CSC Regional Office disapproved Tinaya’s new appointment. to the CSC, which will ascertain, in the main, whether
o But upon appeal by Mayor Priscilla Justimbaste, the the proposed appointee is qualified to hold the position
CSC, in its Resolution, approved Tinaya’s appointment and whether the rules pertinent to the process of
as permanent. appointment were observed.
• On June 4, 1999, Tinaya requested Arturo Juanico to furnish him • The appointing officer and the CSC acting together, though not
a copy of his service record. concurrently but consecutively, make an appointment complete.
o The request was not immediately acted upon. • In acting on the appointment, the CSC determines whether the
o This prompted Tinaya to report the matter to the CSC appointee possesses the appropriate civil service eligibility or
Regional Office with a request to conduct an "on-the- the required qualifications.
spot physical audit" of the municipal employees’ 201 o If the appointee is qualified, the appointment must be
files. approved; if not, it should be disapproved.
• As scheduled, the CSC’s Personnel Inspection and Audit Division • Here, Tinaya’s original permanent appointment as municipal
conducted an audit and found, among others, that the matter of assessor was approved as temporary by CSC pending his
the delay in the release of Tinaya’s service records has become submission of the required service record of his three (3)-year
moot since his request was already acted upon; and that his work experience in real property assessment or in any related
appointment as municipal assessor on December 1, 1994 was field prior to his appointment, as required by the CSC.
issued in violation of the law on nepotism and, therefore, should
be recalled.
o It was only on December 1, 1994, after his temporary
appointment expired on that day, that he was able
• The CSC Regional Office Order recalling respondent’s
to submit the required paper.
• The CSC merely complied with the Constitutional and statutory
mandate to determine whether Tinaya was qualified.
• And due to his failure to submit the required service
WoN the CA erred in holding that Tinaya’s original appointment
record as proof of his qualification, the CSC did not err in June 26, 1998 | Martinez
approving his original appointment as temporary.
• With respect to CSC’s recall of Tinaya’s new permanent Facts:
appointment dated December 1, 1994 by reason of nepotism, On 1992, petitioner Zosimo M. Dimaandal, then holding the position of
we find the same in order. Supply Officer III, was designated Acting Assistant Provincial Treasurer
• Before Tinaya married Caridad Justimbaste, daughter of then for Administration by then Governor Vicente A. Mayo of Batangas.
Mayor Priscilla Justimbaste, on December 16, 1993, the latter Pursuant to the designation, petitioner filed a claim for the difference in
appointed him municipal assessor. The appointment was salary and Representation and Transportation Allowance (RATA) of
permanent. Assistant Provincial Treasurer and Supply Officer III for the whole year
of 1993 in the total amount of P61,308.00.
o As stated earlier, the CSC approved it as temporary.
• On December 1, 1994, Acting Mayor Luban extended to Tinaya However, the Provincial Auditor disallowed in audit P52,908.00 of the
(already the son-in-law of Mayor Justimbaste) a claim. Petitioner was required to refund the said amount.
permanent appointment after his original temporary
appointment expired. Petitioner appealed to the respondent Commission on Audit.

• This new appointment was initially disapproved by the CSC but Petitioner: De facto officers are entitled to salary for services actually
Tinaya’s mother-in-law, Mayor Justimbaste, appealed to rendered. He may be considered as a de facto officer by reason of
the CSC Regional Office. services rendered in favor of the Province of Batangas.
• Being then the incumbent mayor, she was the chief of Tinaya
and deemed to have recommended him to Vice-Mayor Commission On Audit: Petitioner was merely designated as an
Luban to be appointed as municipal assessor. Assistant Provincial Treasurer for Administration in addition to his
regular duties. As such, he is not entitled to receive an additional salary.
• Verily, such appointment is in violation of Section 59, Chapter 8
He is likewise not entitled to receive the difference in RATA considering
of the Civil Service Law, which provides:
that the party designating him to such position is not the "duly
competent authority," provided for under Section 471 of the Local
"SEC. 59. Nepotism. – (1) Appointments in the national, Government Code. Therefore, petitioner is not entitled to the amount of
provincial, city and municipal governments or in any branch or P61,308.00.
instrumentality thereof, including government-owned or
controlled corporations, made in favor of a relative of the Issue:
appointing or recommending authority, or of the chief of WON petitioner can still claim the salary and RATA differential on the
the bureau or office, or of the persons exercising ground that he actually performed the functions pertaining to the office
immediate supervision over him, are hereby prohibited. of Acting Assistant Provincial Treasurer despite the fact that the
Governor of Batangas had no authority to designate him to the said
As used in this Section, the word ‘relative’ and members of the position. – NO.
family referred to are those related within the third degree
either of consanguinity or of affinity. Held:
Section 471(a) of the Local Government Code and Section 2077 of the
Revised Administrative Code do not authorize the Provincial Governor to
• The CSC has the power to recall an appointment in violation of
appoint nor even designate a provincial officer temporarily in cases of
civil service law, rules and regulations.
temporary absence or disability or a vacancy in a provincial office. That
• The CSC is empowered to take appropriate action on all power resides in the President of the Philippines or the Secretary of
appointments and other personnel actions and that such power Finance.
"includes the authority to recall an appointment initially
approved in disregard of applicable provisions of the Civil What was extended to petitioner by Governor Mayo was merely a
Service law and regulations." designation, not an appointment. While an appointment is the selection
by the proper authority of an individual who is to exercise the powers
Dimaandal vs. Commission on Audit and functions of a given office, designation merely connotes an
imposition of additional duties, usually by law, upon a person already in whose appointments are not otherwise provided for by law, and
the public service by virtue of an earlier appointment. those whom he may be authorized by law to appoint", since it
was Congress through the questioned proviso and not the
The right to the salary of an Assistant Provincial Treasurer is based on President who appointed the Mayor to the subject posts; and,
the assumption that the appointment or designation thereof was made • Sec. 261, par. (g), of the Omnibus Election Code for the reason
in accordance with law. Considering that petitioner's designation was that the appointment of respondent Gordon to the subject posts
without color of authority, the right to the salary or an allowance due was within the prohibited 45-day period prior to the 11 May
from said office never existed. In the absence of such right, there can 1992 Elections.
be no violation of any constitutional right nor an impairment of the
obligation of contracts clause under the Constitution, as alleged by Issue: Whether the proviso in question violates the constitutional
petitioner. proscription against appointment or designation of elective officials to
other government posts – YES.
The nature of petitioner's designation and the absence of authority of
the Governor to authorize the payment of the additional salary and Held: Section 7 of Article IX-B of the Constitution expresses the policy
RATA without the appropriate resolution from the Sangguniang against the concentration of several public positions in one person, so
Panlalawigan do not make him a de facto officer. A de facto officer is that a public officer or employee may serve full-time with dedication and
defined as one who derives his appointment from one having colorable thus be efficient in the delivery of public services. It is an affirmation
authority to appoint, if the office is an appointive office, and whose that a public office is a full-time job.
appointment is valid on its face.
• The first paragraph of this constitutional provision prohibits
Petitioner's claim that his subsequent appointment retro-acts to his appointment or designation of an elective official to the
assumption of office is not confirmed by the express phraseology of the government post, except those particularly recognized in the
appointment itself. Thus, the subsequent appointment cannot justify Constitution itself.
petitioner's retention of the excess amount of P61,308.00. • The second paragraph authorizes holding of multiple offices by
an appointive official when allowed by law or by the primary
Flores vs. Drilon (June 22, 1993 | Bellosillo) functions of his position. The exemption allowed to appointive
officials in the second paragraph cannot be extended to elective
Facts: Mayor Richard J. Gordon of Olongapo City was appointed officials who are governed by the first paragraph.
Chairman and Chief Executive Officer of the Subic Bay Metropolitan o In the case before us, the subject proviso directs the
Authority (SBMA) pursuant to Section 13, paragraph (d), of R.A. 7227, President to appoint an elective official, i.e., the Mayor
otherwise known as the "Bases Conversion and Development Act of of Olongapo City, to other government posts (as
1992. Chairman of the Board and Chief Executive Officer of
SBMA). Since this is precisely what the constitutional
The proviso in Sec. 13, paragraph (d), of R.A. 7227 states, "Provided, proscription seeks to prevent, it needs no stretching of
however, That for the first year of its operations from the effectivity of the imagination to conclude that
this Act, the mayor of the City of Olongapo shall be appointed as the the proviso contravenes Section 7, first paragraph,
chairman and chief executive officer of the Subic Authority," Article IX-B, of the Constitution.

Petitioners claims that the said proviso infringes on the following Congress did not contemplate making the subject SBMA posts as ex
constitutional and statutory provisions: officio or automatically attached to the Office of the Mayor of Olongapo
• Sec. 7, first par., Art. IX-B, of the Constitution, which states City without need of appointment.
that "[n]o elective official shall be eligible for appointment or • The phrase "shall be appointed" unquestionably shows the intent
designation in any capacity to any public officer or position to make the SBMA posts appointive and not merely adjunct to
during his tenure," because the City Mayor of Olongapo City is the post of Mayor of Olongapo City. Had it been the legislative
an elective official and the subject posts are public offices; intent to make the subject positions ex officio, Congress would
• Sec. 16, Art. VII, of the Constitution, which provides that "[t]he have, at least, avoided the word "appointed" and, instead, "ex
President shall . . .appoint all other officers of the Government officio" would have been used.
While the conferment of the appointing power on the President is a
perfectly valid legislative act, the proviso limiting his choice to only one SANGGUNIANG BAYAN OF SAN ANDRES V CA (1998)
is an encroachment on his prerogative.
• The power of choice is the heart of the power to appoint. Hence, FACTS: Antonio was elected barangay captain, then president of the
when Congress clothes the President with the power to appoint Association of Barangay Captains in their municipality. Because of this,
an officer, it cannot at the same time limit the choice of the he was appointed by the President as member of the Sangguniang
President to only one candidate. Bayan of their municipality. Meanwhile, the DILG Secretary issued a
o In the case at bar, while Congress willed that the ruling declaring as void the election of the president of the Federation of
the Association of Barangay Captains in the province for lack of quorum.
subject posts be filled with a presidential appointee for
To fill the vacancy, he designated Antonio as temporary member of the
the first year of its operations from the effectivity of R.A.
Sangguniang Panlalawigan. Because of this, Antonio tendered his
7227, the proviso nevertheless limits the appointing
resignation as member of the Sangguniang Bayan. The resignation was
authority to only one eligible, i.e., the incumbent Mayor
addressed to the mayor and copies were furnished to the governor, the
of Olongapo City.
municipal treasurer, and the DILG. No action was taken on the said
o Since only one can qualify for the posts in question, the
resignation however. To fill the vacancy in the Sangguniang Bayan, the
President is precluded from exercising his discretion to
governor appointed Aquino, then vice-president of the ABC as its new
choose whom to appoint. Such supposed power of
member. Antonio did not object to the said appointment. He also
appointment, sans the essential element of choice, is no
commenced to perform his functions as member of the Sangguniang
power at all and goes against the very nature itself of
• While it may be viewed that the proviso merely sets the However, the ruling of the DILG Secretary was reversed. As a
qualifications of the officer during the first year of operations of consequence, Antonio was removed from the Sangguniang
SBMA, i.e., he must be the Mayor of Olongapo City, it is Panlalawigan. Eight months after the said removal, Antonio wrote to the
manifestly an abuse of congressional authority to prescribe members of the Sangguniang Bayan informing them of his intention to
qualifications where only one, and no other, can qualify. re-assume his previous post. The Sangguniang Bayan refused to allow
o Such enactment effectively eliminates the discretion of him to re-assume on the ground that he had already resigned from the
the appointing power to choose and constitutes an said office, and in the alternative, that he had already voluntary
irregular restriction on the power of appointment. relinquished it by abandonment (non-user). Antonio disagrees on the
ground that his resignation was not accepted and was therefore not
The ineligibility of an elective official for appointment remains all effective, and that he did not abandon his office as he only performed
throughout his tenure or during his incumbency. He may however resign duties in addition to his former duties when he accepted his new post
first from his elective post to cast off the constitutionally-attached (i.e. he acted concurrently as member of both sanggunians).
disqualification before he may be considered fit for appointment. His
appointment, however, does not automatically forfeit his elective office. ISSUES:
It is merely considered as invalid in view of his disqualification or lack of
eligibility. (1) WON acceptance of a resignation is necessary to make the
• As incumbent elective official, respondent Gordon is ineligible for resignation effective (YES), and
appointment to the position of Chairman of the Board and Chief
Executive of SBMA. Hence, his appointment thereto pursuant to (2) WON non-user is a form of voluntary relinquishment of an office
a legislative act that contravenes the Constitution cannot be (YES)
sustained. He however remains Mayor of Olongapo City, and his
acts as SBMA official are not necessarily null and void. He may HELD:
be considered a de facto officer.
1. Yes. Acceptance of a resignation is necessary to make the resignation
• Any and all per diems, allowances and other emoluments which
may have been received by respondent Gordon pursuant to his
appointment may be retained by him. In Ortiz vs. COMELEC, we defined resignation as the "act of giving up or
the act of an officer by which he declines his office and renounces the Abandonment springs from and is accompanied by deliberation and
further right to use it. It is an expression of the incumbent in some freedom of choice. Its concomitant effect is that the former holder of an
form, express or implied, of the intention to surrender, renounce, and office can no longer legally repossess it even by forcible reoccupancy.
relinquish the office and the acceptance by competent and lawful
authority." To constitute a complete and operative resignation from Clear intention to abandon should be manifested by the officer
public office, there must be: (a) an intention to relinquish a part of the concerned. Such intention may be express or inferred from his own
term; (b) an act of relinquishment; and (c) an acceptance by the proper conduct. Thus, the failure to perform the duties pertaining to the office
authority. The last one is required by reason of Article 238 of the must be with the officer's actual or imputed intention to abandon and
Revised Penal Code.3 relinquish the office. Abandonment of an office is not wholly a matter of
intention; it results from a complete abandonment of duties of such a
The records are bereft of any evidence that private respondent's continuance that the law will infer a relinquishment. Therefore, there are
resignation was accepted by the proper authority. From the time that he two essential elements of abandonment: first, an intention to abandon
was elected as punong barangay up to the time he resigned as a and, second, an overt or "external" act by which the intention is carried
member of Sangguniang Bayan, the governing law was B.P. 337 or the into effect.
Local Government Code of 1983. While said law was silent as to who
specifically should accept the resignation of an appointive member of We agree with petitioner. Indeed, the following clearly manifest the
the Sangguniang Bayan, Sec. 6 of Rule XIX of its implementing rules intention of private respondent to abandon his position: (1) his failure to
states that the "[r]esignation of sanggunian members shall be acted perform his function as member of the Sangguniang Bayan, (2) his
upon by the sanggunian concerned, and a copy of the action taken shall failure to collect the corresponding remuneration for the position, (3) his
be furnished the official responsible for appointing a replacement and failure to object to the appointment of Aquino as his replacement in the
the Ministry of Local Government. The position shall be deemed vacated Sangguniang Bayan, (4) his prolonged failure to initiate any act to
only upon acceptance of the resignation." reassume his post in the Sangguniang Bayan after the Supreme Court
had nullified his designation to the Sangguniang Panlalawigan.
Under established jurisprudence, resignations, in the absence of
statutory provisions as to whom they should be submitted, should be On the other hand, the following overt acts demonstrate that he had
tendered to the appointing person or body. Private respondent, effected his intention: (1) his letter of resignation from the Sangguniang
therefore, should have submitted his letter of resignation to the Bayan, (2) his assumption of office as member of the Sangguniang
President or to his alter ego, the DILG secretary. Although he Panlalawigan, (3) his faithful discharge of his duties and functions as
supposedly furnished the latter a copy of his letter, there is no showing member of said Sanggunian, and (4) his receipt of the remuneration for
that it was duly received, much less, that it was acted upon. The third such post.
requisite being absent, there was therefore no valid and complete

2. Yes. Non-user is a form of voluntary relinquishment of an office. MATHAY V CSC (1999)

Abandonment of an office has been defined as the voluntary FACTS: The City Council passed an ordinance creating an Electrical
relinquishment of an office by the holder, with the intention of Division under the Engineering Department. New positions were
terminating his possession and control thereof. Indeed, abandonment of created. Among these was the position of Electrical Engineer V, for
office is a species of resignation; while resignation in general is a formal which there were two contenders: Tabernilla and Enriquez. Both were
relinquishment, abandonment is a voluntary relinquishment through part of the Electrical Division previously under the city government but
nonuser. Nonuser refers to a neglect to use a privilege or a right which was transferred to the Bureau of Fire Protection. Tabernilla was
(Cyclopedic Law Dictionary, 3rd ed.) or to exercise an easement or an Engineer II while Enriquez was Engineer III. In keeping with the city’s
office (Black's Law Dictionary, 6th ed.). policy of giving preferential treatment to its residents, the Mayor
appointed Tabernilla. Enriquez protested on the ground that the Civil
Service Commission requires that the occupant of the said position be a
3 holder of a bachelor’s degree in electrical enginnering. Tabernilla only
Article 238 of the Revised Penal Code: Any public officer who, held an associate’s degree. The mayor countered that the ordinance
before the acceptance of his resignation, shall abandon his office to the merely required that the appointee be a professional electrical engineer.
detriment of the public service shall suffer the penalty of arresto mayor.
ISSUE: WON an LGU can impose as a qualification for employment a Official Gazette. Thus it was never in force or in effect and cannot be the
requirement that is below the minimum required by the Civil Service basis for the creation of CSUs.
On June 4, 1990, the Civil Service Commission issued Memorandum
HELD: No. An LGU cannot impose as a qualification for employment a Circular No. 30, directing all Civil Service Regional or Field Offices to
requirement that is below the minimum imposed by the Civil Service recall, revoke and disapprove within one year from issuance of the said
Commission. If it does so, the CSC can revoke the appointment. Memorandum, all appointments in CSUs created pursuant to Presidential
Decree No. 51 on the ground that the same never became law. Among
The petitioner asseverates, however, that the said resolutions were void those affected by the revocation of appointments are Eduardo Tan etc.
and were issued in violation of due process; hence, they could never
become final, and they could be attacked directly or collaterally even For Quezon City CSU employees, the effects of the circular were
after the time of appeal or review has lapsed. According to him, the CSC temporarily cushioned by the enactment of City Ordinance No. NC-140,
had no jurisdiction or authority to revoke or cancel an appointment to a Series of 1990, which established the Department of Public Order and
civil service position after its Regional Office had approved the same and Safety ("DPOS").
the appointed had assumed the new position.
Section 3 of the Ordinance provides:
We cannot subscribe to petitioner's theory. Under Section 12 (11) of Sec. 3. The present personnel of the Civil Security Unit, Traffic
Book V of Executive Order No. 292, otherwise known as the Management Unit, Anti-Squatting and Surveillance and Enforcement
"Administrative Code of 1987," the CSC has the power to "[h]ear and Team, and Disaster Coordinating Council are hereby absorbed into the
decide administrative cases instituted before it directly or on appeal, department of public order and safety established under Section one
including contested appointments, and review decisions and actions of hereof to be given appropriate position titles without reduction in salary,
its agencies and of the agencies attached to it." Moreover, Section 20, seniority rights and other benefits. Funds provided for in the 1990
Rule VI of the Omnibus Rules Implementing Book V Executive Order No. Budget for the absorbed offices shall be used as the initial budgetary
292 and Other Pertinent Civil Service Laws provides that allocation of the Department.
notwithstanding the initial approval of an appointment, the same may
be recalled for "[v]iolation of other existing Civil Service laws, rules and Despite the provision on absorption, the regular and permanent
regulations." As held in Debulgado v. Civil Service Commission,16 the positions in the DPOS were not filled due to lack of funds for the new
CSC is empowered to take appropriate action on all appointments and DPOS and the insufficiency of regular and permanent positions created.
other personnel actions and that such power "includes the authority to
recall an appointment initially approved in disregard of applicable Mayor Brigido R. Simon remedied the situation by offering Eduardo Tan
provisions of Civil Service law and regulations." etc contractual appointments for the period of June 5, 1991 to
December 31, 1991. The appointments were renewed by Mayor Simon
Accordingly, it cannot be said that the CSC did not have jurisdiction or for the period of January 1, 1992 to June 30, 1992.
gravely abused its discretion in recalling the appointment of
TABERNILLA, which was issued in violation of existing civil service rules On May 11, 1992, Ismael A. Mathay, Jr. was elected Mayor of Quezon
prescribing a Bachelor's Degree in Engineering as one of the minimum City. On July 1, 1992, Mayor Mathay again renewed the contractual
qualifications for the questioned position. appointments of Eduardo Tan etc effective July 1 to July 31, 1992. Upon
their expiry, these appointments, however, were no longer renewed.
Ismael Mathay v CA and CSC (December 1999, Ynares Santiago)
Eduardo Tan etc complained said nonrenewal of their appointments to
Facts: During his term as Mayor of Quezon City, Mr. Brigido R. Simon
the CSC. The CSC issued separate resolutions holding that the
appointed 16 people (Eduardo Tan etc) to positions in the Civil Service
reappointment of private respondents to the DPOS was automatic,
Unit ("CSU") of the local government of Quezon City. Civil Service Units
pursuant to the provision on absorption in Quezon City Ordinance No.
were created pursuant to Presidential Decree No. 51 which was
NC-140, Series of 1990, and ordered the reinstatement of Eduardo Tan
allegedly signed into law on November 15 or 16, 1972.
etc. The CA agreed with the CSC and dismissed Mathay’s petition for
On February 23, 1990, the Secretary of Justice rendered Opinion No.
33, stating that Presidential Decree No. 51 was never published in the
ISSUE: WON the Court of Appeals erred when it ruled that respondent
Civil Service Commission has the authority to direct him to "reinstate" When the Civil Service Commission ordered the reinstatement of
Eduardo Tan etc in the DPOS -- YES Eduardo Tan etc, it technically issued a new appointment. This task, i.e.
of appointment, is essentially discretionary and must be performed by
HELD: First the SC said that the law applicable in this case is B.P. 337 the officer in which it is vested, which in this case is the local chief
or the old Local Government Code because the current code was not yet executive.
enacted at the time the material events of this case transpired.
Conrado de rama v CA (Ynares-Santiago, 2001)
Under the old local government code, the power to appoint rests
exclusively with the local chief executive. The power of the city council Facts:
or sanggunian, on the other hand, is limited to creating,consolidating Upon his assumption to the position of Mayor of Pagbilao, Quezon,
and reorganizing city officers and positions supported by local funds. petitioner Conrado L. de Raffia wrote a letter dated July 13, 1995 to the
The city council has no power to appoint. Civil Service Commission (or CSC), seeking the recall of the
appointments of 14 municipal employees Eladio Martinez etc.
Thus, the power to appoint cannot be usurped by the city council or
sanggunian through the simple expedient of enacting ordinances that According to Raffia, the appointments of the said employees were
provide for the "absorption" of specific persons to certain positions. "midnight" appointments of the former mayor, Ma. Evelyn S. Abeja,
done in violation of Article VII, Section 15 of the 1987 Constitution,
In this case, section 3 of the assailed Ordinance is invalid for being which provides:
inconsistent with B.P. 337 because the ordinance directs the absorption
of the personnel of the defunct CSU into the new DPOS. The Ordinance Section 15. Two months immediately before the next presidential
refers to personnel and not to positions. Hence, the city council or elections and up to the end of his term, a President or Acting President
sanggunian, through the Ordinance, is in effect dictating who shall shall not make appointments, except temporary appointments to
occupy the newly created DPOS positions, which is contrary to the clear executive positions when continued vacancies therein will prejudice
provision in the old code providing that the power to appoint is vested in public service or endanger public safety.
the local chief executive.
While the matter was pending before the CSC, three of the 14
WON the CSC acted outside the ambit of its powers? YES employees, namely: Elsa Marino, Morell Ayala, and Flordeliza Oriazel,
The Civil Service Commission's power is limited to approving or filed with the CSC a claim for payment of their salaries, alleging that
disapproving an appointment. It does not have the authority to direct although their appointments were declared permanent by Conrado
that an appointment of a specific individual be made. Once the Civil Gulim, Director II of the CSC Field Office based in Quezon, petitioner de
Service Commission attests whether the person chosen to fill a vacant Rama withheld the payment of their salaries and benefits pursuant to
position is eligible, its role in the appointment process necessarily ends. Office Order No. 95-01
The Civil Service Commission cannot encroach upon the discretion
vested in the appointing authority. The Legal and Quasi-Judicial Division of the CSC issued an Order finding
that since the claimants-employees had assumed their respective
The Civil Service Commission argues that it is not substituting its positions and performed their duties pursuant to their appointments,
judgment for that of the appointing power and that it is merely they are therefore entitled to receive the salaries and benefits
implementing Section 3 of Ordinance NC-140. appurtenant to their positions. Citing Rule V, Section 10 of the Omnibus
Rule which provides, in part, that "if the appointee has assumed the
The Ordinance refers to the "personnel of the CSU", the identities of duties of the position, he shall be entitled to receive his salary at once
which could not be mistaken. The resolutions of the Civil Service without awaiting the approval of his appointment by the Commission,"
Commission likewise call for the reinstatement of named individuals. the CSC Legal and Quasi-Judicial Division ruled that the said employees
There being no issue as to who are to sit in the newly created DPOS, cannot be deprived of their salaries and benefits by the unilateral act of
there is therefore no room left for the exercise of discretion. The the newly-assumed mayor.
appointing authority is not bound to appoint anyone recommended by
the sanggunian concerned, since the power of appointment is a The CSC also subsequently denied Raffia’s petition to recall the said 14
discretionary power. employees.
• It declared that the appointments of the said employees were elective officials from making appointments during the last days of his
issued in accordance with pertinent laws. Thus, the same were or her tenure. Raffia certainly did not raise the issue of fraud on the part
effective immediately, and cannot be withdrawn or revoked by of the outgoing mayor who made the appointments. Neither did he
the appointing authority until disapproved by the CSC. allege that the said appointments were tainted by irregularities or
• The CSC also dismissed petitioner's allegation that these were anomalies that breached laws and regulations governing appointments.
"midnight" appointments, pointing out that the Constitutional His solitary reason for recalling these appointments was that they were,
provision relied upon by petitioner prohibits only those to his personal belief, "midnight appointments" which the outgoing
appointments made by an outgoing President and cannot be mayor had no authority to make.
made to apply to local elective officials. Thus, the CSC opined,
"the appointing authority can validly issue appointments until Perhaps realizing the weakness of his arguments, albeit belatedly, Raffia
his term has expired, as long as the appointee meets the filed a supplement to the appeal and motion for reconsideration where,
qualification standards for the position." for the very first time, he alleged that the appointments were fraught
• The CSC upheld the validity of the appointments on the ground with irregularities for failing to comply with CSC rules and regulations.
that they had already been approved by' the Head of the CSC
Field Office in Lucena City, and for Raffia's failure to present The CSC and CA simply dismissed Raffia’s allegations and documents
evidence that would warrant the revocation or recall of the said attached to the supplemental pleading for they did not constitute new
appointments. evidence that a court, board or tribunal may entertain.

Upon Raffia’s Motion for Reconsideration, the CSC affirmed its decision, According to the SC, while there is no question that parties may file
citing Aquino v Comelec and saying that supplemental pleadings to supply deficiencies in aid of an original
once an appointment is issued and the moment the appointee assumes pleading, but which should not entirely substitute the latter. But
a position in the civil service under a completed appointment, he supplemental pleadings must be with reasonable notice, and it is
acquires a legal not merely equitable right (to the position),which is discretionary upon the court or tribunal to allow the same or not. Thus,
protected not only by statute, but also by the Constitution, and cannot the CSC was under no obligation to admit the supplemental pleading, or
be taken away from him either by revocation of the appointment, or by even to consider the averments therein.
removal, except for cause, and with previous notice and hearing.
Also, a supplemental pleading must state transactions, occurrences or
Raffia filed a petition for certiorari before the court of appeals assailing events which took place since the time the pleading sought to be
the CSC’s decision. The CA affirmed the CSC ruling, on the ground that supplemented was filed. In the instant case, petitioner alleged fraud and
Republic Act No. 7041 does not provide that every appointment to the irregularities that supposedly occurred contemporaneous to the
local government service must be made within four (4) months from execution of the appointments. They should have been raised at the
publication of the vacancies, citing Section 80 of the said Act. very first opportunity. They are not new events which petitioner could
not have originally included as grounds for the recall of the
Likewise, neither did the CSC's own Circular Order No. 27, Section 7, appointments.
Series of 1991, require that vacant positions published in a government
quarterly must be filled up before the advent of the succeeding quarter. Accordingly, the CSC, as well as the Court of Appeals, properly found
that the allegations in Raffia’s supplemental pleading did not constitute
WON the CSC and CA should have given credence to Raffia’s "new evidence" that can be the proper subject of a supplemental
supplemental pleading? NO pleading. These were old facts and issues which he failed to raise
earlier. Consequently, the CSC and the Court of Appeals did not err in
The records reveal that when the petitioner brought the matter of refusing to give credence to the supplemental pleading.
recalling the appointments of the fourteen (14) private respondents
before the CSC, the only reason he cited to justify his action was that The grounds for the recall of the appointments that Raffia raised in his
these were "midnight appointments" that are forbidden under Article supplemental pleading to the consolidated appeal and motion for
VII, Section 15 of the Constitution. However, the CSC ruled, and reconsideration are that: (1) the rules on screening of applicants based
correctly so, that the said prohibition applies only to presidential on adopted criteria were not followed; (2) there was no proper posting
appointments. In truth and in fact, there is no law that prohibits local of notice of vacancy; and (3) the merit and fitness requirements set by
the civil service rules were not observed. These are grounds that he
could have stated in his order of recall, but which he did not. Neither did authority, and if the appointee has assumed the duties of the position,
he raise said grounds in his original appeal, but only by way of a he shall be entitled to receive his salary at once without awaiting the
supplemental pleading. Failure of Raffia to raise said grounds and to approval of his appointment by the Commission. The appointment shall
present supporting documents constitute a waiver thereof, and the remain effective until disapproved by the Commission. In no case shall
same arguments and evidence can no longer be entertained on appeal an appointment take effect earlier than the date of its issuance.
before the CSC, nor in the Court of Appeals, and much less in a petition Section 20 of Rule VI also provides:
for review before the Supreme Court. Raising of these factual issues for Sec. 20. Notwithstanding the initial approval of an appointment, the
the first time in a pleading which is supplemental only to an appeal is same may be recalled on any of the following grounds:
barred by estoppel. (a) Non-compliance with the procedures/criteria provided in the
agency's Merit Promotion Plan;
WON the petition for recall by Raffia should have prospered? NO (b) Failure to pass through the agency's Selection/Promotion Board;
(c) Violation of the existing collective agreement between management
A thorough perusal of the records reveal that the CSC's ruling is and employees relative to promotion; or
supported by the evidence and the law. The fourteen (14) employees (d) Violation of other existing civil service law, rules and regulations.
were duly appointed following two meetings of the Personnel Selection
Board held on May 31 and June 26, 1995. There is no showing that any Accordingly, the appointments of the 14 employees may only be
of the private respondents were not qualified for the positions they were recalled on the above-cited grounds. And yet, the only reason advanced
appointed to. Moreover, their appointments were duly attested to by the by Raffia to justify the recall was that these were "midnight
Head of the CSC field office at Lucena City. By virtue thereof, they had appointments." The CSC correctly ruled, however, that the constitutional
already assumed their appointive positions even before Raffia himself prohibition on so-called "midnight appointments," specifically those
assumed his elected position as town mayor. Consequently, their made within two (2) months immediately prior to the next presidential
appointments took effect immediately and cannot be unilaterally elections, applies only to the President or Acting President.
revoked or recalled by Raffia.
LAMEYRA v. PANGILINAN (Gonzaga-Reyes, J.; January 18, 2000)
Upon the issuance of an appointment and the appointee's assumption of
the position in the civil service, "he acquires a legal right which cannot FACTS: Pedro Lameyra, a permanent employee of the Municipality of
be taken away either by revocation of the appointment or by removal Famy, Laguna was dismissed from his services as janitor/messenger by
except for cause and with previous notice and hearing." the subsequent Mayor due to insubordination and AWOL.

The person assuming a position in the civil service under a completed • He claimed that he was unlawfully terminated without
appointment acquires a legal, not just an equitable, right to the position. just cause, without any prior written notice of the charges and
This right is protected not only by statute, but by the Constitution as without investigation and hearing, in violation of his security of
well, which right cannot be taken away by either revocation of the tenure and dues process. He also alleged that the act of Mayor
appointment, or by removal, unless there is valid cause to do so, Pangilinan was an act of political vengeance as he was publicly
provided that there is previous notice and hearing. known to have voted for his political rival during the 1995
Rule V, Section 9 of the Omnibus Implementing Regulations of the
Revised Administrative Code specifically provides that "an appointment • Mayor Pangilinan claimed that Lameyra was always late,
accepted by the appointee cannot be withdrawn or revoked by the did not attempt to justify his AWOL,a nd continuously failed to
appointing authority and shall remain in force and in effect until report for work. The Mayor also claimed that Lameyra falsified
disapproved by the Commission." Thus, it is the CSC that is authorized public documents involving the daily time log book. The CSC
to recall an appointment initially approved, but only when such affirmed the action of the Municipal Mayor.
appointment and approval are proven to be in disregard of applicable
provisions of the civil service law and regulations. • On the other hand, Lameyra alleged that upon the
advice of the CSC in Sta. Cruz, Laguna, he reported for work at
Moreover, Section 10 of the same rule provides: the offce of the Vice-Mayor, as he was not allowed by the
Sec. 10. An appointment issued in accordance with pertinent laws and Personnel Officer, Benito Vicencio, to sign his name in the log
rules shall take effect immediately upon its issuance by the appointing book. The respondents claim that the affidavits which Lameyra
submitted before the CSC were readily available to him and employer until the final disposition of her case. Three years later, she
were no longer admissible at a late stage to set aside the was acquitted for failure of the prosecution to prove any act establishing
judgment. CA affirmed the resolution of the CSC. her complicity in the crime and her immediate release from detention
was ordered.
• The City Govt of Makati later on changed its policy by
• W/N the affidavits that he served at the Vice-Mayor’s office can issuing a memorandum that absence for more than one year
be considered as newly discovered evidence warranting the without official leave would result in the dismissal of the erring
reconsideration of his case? – YES. It should be noted that the employee. Unexpectedly, she was dropped from the rolls of
first opportunity that Lameyra had to contest the sufficiency of municipal employees for having been absent from work for more
the evidence to support his dismissal was when he filed his MR than one year without official leave. Her suspension was without
from the Resolution of the CSC as there was no notice and prior notice and without her knowledge, nor was any
hearing when he was dropped from the rolls. opportunity given her to correct the omission of an application
for leave of absence. She was denied reinstatement but both the
• W/N an officer or employee who has been on AWOL can be CSC and the CA ordered her immediate reinstatement with back
dropped from the rolls of employees without prior notice? – YES. wages form the date she presented herself for reassumption of
Civil Service Memorandum Circular No. 12-1994 Sec.2.1 a that duties.
“An officer or employee who is continuously absent without
approved leave (AWOL) for at least thirty calendar days shall be • City Govt: Galzote should have still gone through the
separated from the service or dropped from the rolls without formalities of applying for a leave of absence despite her
prior notice. He shall, however, be informed of his separation detention. The trial court held that the meaning of her
from the service not later than five days from its effectivity suspension “until the final disposition of her case” is that should
which shall be sent to his address appearing in his 201 files.” her case be dismissed she should be reinstated to her position
with payment of back wages. She did not have to apply for
It is clear from the above provision that no prior notice is leave of absence since she was already suspended by her
required to drop from the rolls an employee who has been employer until her case would be terminated.
continuously absent without approved leave (AWOL) for at least
thirty calendar days. His dismissal was based on certification of ISSE/HELD:
the Personnel Officer that Lameyra did not report for work and
did not submit any proof that he actually filed an application for • W/N she may be considered absent without leave or to have
leave nor presented any approved leave application for leave. abandoned her job as to justify her being dropped from the
service for not filing a formal application for leave? – NO.
In equity, and in proper compliance with the requirements of
due process, Lameyra should be given a last full opportunity t • Is a government employee who has been ordered arrested and
prove his contention that the termination of his services was detained for a non-bailable offense and for which she was
illegal. suspended for her inability to report for work until the
termination of her case, still required to file a formal application
DISPOSITIVE: Reversed and case remanded for further proceedings. for leave of absence to ensure her reinstatement upon her
acquittal and thus protect her security of tenure? – NO. She is
considered to be on approved automatic leave of absence.

CITY GOVT OF MAKATI v. CSC(Bellosillo, J.; February 6, 2002) • Will her prolonged absence from office for more than one year
automatically justify his being dropped from the rolls without
FACTS: Eusebia Galzote was a clerk in the City Govt of Makati when she prior notice despite his being already placed under suspension
was arrested without warrant on a charge of kidnapping for ransom with by his employer until the termination of his case finally resulting
physical injuries and detained for more than 3 years until she was in her acquittal for lack of evidence? – NO.
acquitted for lack of evidence. Three days after her arrest and since she
could not report for work, she was suspended from office by her RATIO:
Estoppel on the part of the City Govt The holding of the CSC that Galzote was on automatic leave of absence
during the period of her detention must be sustained. The CSC is the
The Court held that the official communication advising her suspension constitutionally mandated central personnel agency of the Govt. The
should be taken as an equivalent of a prior approved leave of absence Admin Code of 1987 further empowers the CSC to “prescribe, amend,
since it was her employer itself which placed her under suspension and and enforce rules and regulations for carrying into effect the provisions
thus excused her from further formalities in applying for such leave. of the Civil Service Law and other pertinent laws,” and for matters
Moreover, the arrangement bound the City Govt to allow Galzote to concerning leave of absence.
return to her work after the termination of her case if acquitted of the
criminal charge. This pledge sufficiently served as legitimate reason for As a general rule, Sec. 20 (now Sec.52), and Sec. 35 (now Sec. 63) of
her to altogether dispense with the formal application for leave. the Civil Service Rules require an approved leave of absence to avoid
being an AWOL. However, there are other means of seeking and
AWOL means the employee leaving or abandoning his post without granting an approved leave of absence than filing an application
justifiable reason and without notifying his employer. In the instant therefor, one of which is the CSC recognized rule of automatic leave of
case, Galzote had a valid reason for failing to report for work as she was absence under specified circumstances such as instances of force
detained without bail. Further, she had no time to attend to the majeure.
formality of filing a leave application due to her arrest and detention.
Sec. 20 of the CSC Rules allows absences even without prior approved
City Govt claims that pursuant to its memorandum dropping an leaves in case of illness. Obviously, illness cannot be scheduled and is
employee who has been absent for more than one year without official beyond the control of the absent employee so that contingency upon the
leave, the suspension order was void, since there was no pending needs of the service would be irrelevant. It is enough that ht employer
administrative charges against Galzote and so she was not excused be informed of the absent employee’s illness which information is the
from filing an application for leave. effective substitute for a prior leave application. Thus, in these items of
force majeure, the employee is excused from filing an application for
The Court held that the employer should have considered her as being leave of absence provided that he informs the employer of the
on leave of absence without pay and their ER-EE relationship merely unfortunate event underlying his absence.
deemed suspended, not severed. This is in consonance with the labor
concept that the ER-EE relationship is merely suspended wherein Significantly, the rule on automatic leave of absence is part and parcel
laborers would have no work to perform for causes not attributable to of the authority to drop employees from the rolls under Sec. 35 of the
them. CSC Rules for it tempers the exercise of such authority where the
absences are beyond the control of the concerned employee. The CSC
The Court, however, could not nullify the City Govt’s suspension order, has the power to allow exemption form prior filing of leave application.
for as was held, a void act though in a law a mere scrap of paper This power logically flows from the task of the CSC to regulate civil
nonetheless confers legitimacy upon past acts or omissions done in service in the country as ordained in the Constitution and mandated in
reliance thereof. Hence, the City Govt is estopped from claiming that its the Admin Code of 1987. The CSC Rules do not limit the powers of the
order of suspension is void or that it did not excuse Galzote from filing CSC in this regard to cases of illness only. With reasonableness as the
an application for leave on account of her incarceration. standard, the CSC is far from being presumptuous when it states that
other instances of force majeure (such as the arrest and detention of a
Lack of Due Process civil servant for a crime she did not commit) may excuse the prior filing
of an approved leave of absence. This determination is an exercise of
There was no due process as the memorandum dropping Galzote from the CSC’s constitutional mandates.
the rolls should have been sent to her at the Rizal Provincial jail where
she had been detained and where she could have received it. As ruled in CSC’s Power to Interpret its Own Rules
Gonzales v. CSC, where the petitioner knows the actual whereabouts of
the respondent, the notice should be served to that place and not As properly noted, CSC was only interpreting its own rules on leave of
merely by publication. absence and not a statutory provision in coming up with this uniform
rule. CSC has the power to interpret its own rules and any phrase
Automatice Leave of Absence contained in them with its interpretation significantly becoming part of
the rules themselves. “Since the commission is an instrumentality of the
state, exercising delegated powers, its orders are of the same force as compliance with the same, it designated Pastor head of the
would be a like enactment by the Legislature. It therefore follows that Pasig City Hall Annex. Pastor asked the CSC for a clarification of
the interpretation officially placed on the order or rule by the its Resolution. She alleged that there was no position of "Head
commission becomes a part of the rule. Further, the rule is susceptible of Pasig City Hall Annex" in the plantilla of the city government
of no other interpretation.” (West Texas v. Panhandle) nor an ordinance creating the Office of Pasig City Hall Annex
which was in fact a small bungalow-type building manned by 1
Under RA 6656 (An Act to Protect the Security of Tenure of Civil Service representative each from about 5 departments who report
Officers and Employees in the Implementation of government directly to their respective Department Heads at the Pasig City
Reorganization) and RA 7160 (LGC), civil servants who are found Hall. In its Resolution dated 20 May 1997, the CSC found
illegally dismissed or retrenched are entitled to full pay for the period of Pastor's reassignment to the Pasig City Hall Annex to be not in
their separation. compliance with its decision. It held that the so-called Pasig City
Hall Annex was not a department of the City Government of
Pastor v. City of Pasig Pasay but a mere extension of the City Hall. The CSC also cited
the fact that under Municipal Ordinance 01-92 of the City, it was
Facts: Remedios Pastor was appointed as Budget Officer of the the Vice-Mayor who was Officer-in-Charge of the extension
Municipality (now City) of Pasig on 1 May 1986. The Department of office. The CSC ordered further reassignments of Pastor to other
Budget and Management confirmed her appointment. offices be stopped "since [she] has been out of her official
station as Budget Officer for such a long time."
• On 6 July 1992, she was reassigned by the newly elected Mayor
of Pasig, Vicente P. Eusebio, to the Office of the Municipal • Mayor Eusebio moved for reconsideration. The CSC denied his
Administrator pending investigation of reports against her motion. The CSC held that the position of Head of the Pasig City
concerning the issuance of Advice of Allotments by her. On 6 Hall Annex was not equivalent to the position of City Budget
March 1995, Mayor Eusebio issued another memorandum Officer because the Annex was not a line department. Pastor
(Memorandum Order 06-95) directing Pastor to conduct an in- then wrote Mayor Eusebio informing him of her intention to
depth evaluation/study of the operations of the Pasig City Hall resume her duties as City Budget Officer. She was advised,
Annex. however, to wait because the city government intended to
appeal the decision of the CSC.
• On 20 October 1995, after three years with no case filed against
her regarding the charge that she had issued Advice of • The City of Pasig then filed with the CA a petition, denominated
Allotments without sufficient cash collections, she filed a for "writ of certiorari," under Rule 43 of the 1997 Rules of Civil
complaint with the Civil Service Commission (CSC), asking for Procedure, impleading only the Civil Service Commission as
reinstatement to her former position. She contended that her respondent. The CA rendered a decision, setting aside the
"protracted detail" to the Office of the City Administrator and decision of the Civil Service Commission (CSC). On 29 January
the deletion of her name from the payroll for the City Budget 2001, the Court of Appeals denied the CSC's motion for
Office for the period October 1-15, 1995 were in violation of extension of time to file a motion for reconsideration on the
Civil Service laws, rules, and regulations and that they ground that the same is not allowed under its internal rules.
constituted oppression and abuse of authority on the part of Hence this petition.
Mayor Eusebio. But she was instead reassigned to another unit
of the now city government (Office of the Municipal [now City] Issue: WON the CA committed grave abuse of discretion when it did not
Administrator). dismiss City of Pasig’s petition for failure to implead petitioner (YES)

• On 6 December 1995, the Pasig City Administrator issued a Ratio: Appeals from the decisions or final orders of the CSC to the
memorandum directing Pastor to conduct another study. Court of Appeals should be by a petition for review pursuant to Rule 43
of the 1997 Rules of Civil Procedure. As provided by §5 thereof, a copy
• Upon her complaint, the CSC ordered her reinstatement as of the petition should be served on the adverse party and on the Civil
Budget Officer of the City of Pasig or her assignment to an office Service Commission. § 6(a) provides that the petition should state the
where he can perform as head of a department. The City of full names of the parties to the case without impleading the Civil Service
Pasig did not ask for reconsideration. Instead, apparently in Commission either as petitioner or respondent. § 7 provides that the
failure of the petitioner to comply with any of the foregoing Annex show the "more than temporary" nature of her
requirements regarding proof of service and the contents of the petition reassignment. That she has suffered a diminution in her rank is
is a sufficient ground for the dismissal of the same. The petition for also evident. Her duties and functions as City Budget Officer
“writ of certiorari” filed by respondent city government should therefore contrasts to those as head of the Pasig City Hall Annex. In the
have been dismissed for its failure to implead petitioner as the adverse latter, Pastor’s budget proposals will be subject to review by the
party and to serve a copy of the petition on her. City Budget Officer. Moreover, the position of City Budget Officer
is created by statute, while that of the head of the Pasig City
Issue: WON the City of Pasig has the personality to appeal the CSC’s Hall Annex is created by mere ordinance.
decision (YES)
Garcia v. Pajaro
Ratio: Petitioner’s contention is without merit. The ruling cited, first
made in Paredes v. Civil Service Commission, does not apply since it Facts: Petitioner Sebastian Garcia is employed as Revenue Collector at
refers to administrative disciplinary cases, which this case is not. the City Treasurer’s Office of Dagupan City since 1974. The City Mayor
Moreover, said ruling has already been modified in Civil Service appointed him to that position.
Commission v. Dacoycoy, so that appeal now lies from a decision
exonerating a civil service employee of administrative charges. • Garcia has been rating ‘Unsatisfactory’ in his performance for
several semesters which caused the filing of a Formal Charge
Issue: WON Pastor’s reassignment amounts to removal (YES) against him by the City Treasurer. Garcia was preventively
suspended for ninety days. An investigation was scheduled and
Ratio: Book V, Title I, Subtitle A, §26(7) of Executive Order No. 292, a subpoena was issued to him to appear and testify. Garcia did
otherwise known as the Administrative Code of 1987, provides: not file an Answer, he and refused to honor the subpoena to
Reassignment - An employee may be reassigned from one submit himself for investigation.
organizational unit to another in the same agency: Provided, That such
reassignment shall not involve a reduction in rank, status, or salary. • The Investigation proceeded ex parte. The findings of the
investigation were submitted to the Department of Finance for
• It has been held that a reassignment that is indefinite and
results in a reduction in rank, status, and salary is in effect a
constructive removal from the service. In this case, petitioner’s • Garcia filed this action against the City Treasurer alleging that
reassignment to different offices in the local government of the latter unduly withheld the benefits he is entitled to. He has
Pasig City is indefinite. Petitioner has been on virtual floating been reporting for work despite the suspension because he did
assignments which cannot but amount to a diminution of her not honor the suspension order as the City Treasurer as the
rank, hence impermissible under the law. As already noted, her complainant, investigator and judge, and there was no
reassignment began in 1992 with her detail to the Office of the complaint against him from the Office of the City Mayor. The
(now) City Administrator pending investigation of reports that RTC dismissed the petition. The CA affirmed the RTC holding
she had issued Advice of Allotments without sufficient cash that the City Treasurer was vested with legal power and
collections. However, no investigation appears to have ever authority to institute disciplinary action against subordinate
been conducted on the said charge. officers and employees. Hence this petition.
• To justify her continuing reassignment, the City Mayor claimed Issue: WON the city treasurer of Dagupan may discipline Garcia (YES)
that the same was "due to Pastor's long years of experience in
finance" which especially fitted her for studies regarding the Ratio: Under the Local Government Codes, the Civil Service Law covers
city's revenues. Considering the reason given for the appointive officers and employees of local government units. Moreover,
reassignment, it is not merely temporary. Hence, it violates her the investigation and the adjudication of administrative complaints
security of tenure. For all intents and purposes, her against appointive local officials and employees, as well as their
reassignment, lasting nearly ten years now, is a removal suspension and removal, shall be in accordance with the Civil Service
without cause as Budget Officer of the City of Pasig. Law and rules and other pertinent laws.

• Her duties in her new assignment as head of the Pasig City Hall • The Administrative Code of 1987 is the primary law governing
appointive officials and employees in the government. This Code • In the present case, Respondent Pajaro was authorized to issue
enumerates the grounds for disciplining them. Due process in the assailed Preventive Suspension Order against petitioner,
the administrative context cannot be fully equated with that in because the latter was charged with gross neglect of duty,
the strict judicial sense. refusal to perform official duties and functions, and
insubordination -- grounds that allowed the issuance of such
• The power to discipline is specifically granted by Section 47 of Order. The city treasurer acted within the scope of his power
the Administrative Code of 1987 to heads of departments, when he commenced the investigation and issued the assailed
agencies and instrumentalities, provinces and cities. On the Order.
other hand, the power to commence administrative proceedings
against a subordinate officer or employee is granted by Section Issue: WON Garcia’s right to due process was violated (NO)
34 of the Omnibus Rules Implementing Book V of the said
Administrative Code to the secretary of a department, the head Ratio: In an administrative proceeding, the essence of due process is
of office of equivalent rank, the head of a local government unit, simply the opportunity to explain one’s side. Such process requires
the chief of an agency, the regional director or a person with a notice and an opportunity to be heard before judgment is rendered. So
sworn written complaint. long as the parties are given the opportunity to explain their side, the
requirements of due process are satisfactorily complied with.
• Further, the city treasurer may institute, motu propio,
In the case at bar, the administrative proceedings were conducted in
disciplinary proceedings against a subordinate officer or
accordance with the procedure set out in the 1987 Administrative Code
employee. Local Administrative Regulations (LAR) No. 2-85,
and other pertinent laws. Petitioner’s refusal to attend the scheduled
which was issued by the Ministry of Finance on March 27, 1985,
hearings, despite due notice, was at his own peril. He therefore cannot
authorized the minister (now secretary) of finance, the regional
validly claim that his right to due process was violated.
director, and head of a local treasury or an assessment office to
start administrative disciplinary action against officers or
employees subordinate to them.
Teves v. Sandiganbayan | Davide Jr., J. (2004)

• In the case at bar, the city treasurer is the proper disciplining

authority referred to in Section 47 of the Administrative Code of
1987. The term “agency” refers to any of the various units of • Edgar Y Teves, the former Mayor of Valencia and his
the government including a department, a bureau, an office, an wife Teresita were charged with violation of the Anti-Graft Law
instrumentality, a government-owned or controlled corporation, for possessing direct and pecuniary interest in the Valencia
or a local government or a distinct unit therein. Pajaro, as the Cockpit.
city treasurer, was the head of the Office of the Treasurer; while • The Sandiganbayan convicted them on the following
petitioner, a senior revenue collector, was an officer under him. grounds:

• Petitioner’s contention that it is only the city mayor who may 1. That nothing was shown to prove that Mayor
discipline him is not persuasive. The Local Government Code Teves divested himself of his pecuniary interest in the
states that the city mayor “may cause to be instituted cockpit
administrative or judicial proceedings against any official or 2. As of April 1992, Teresita Teves was of record
employee of the city.” This rule is not incongruent with the the owner/licensee of the cockpit and since they were
provisions of the 1987 Administrative Code, which authorizes married, their property relations is conjugpal partnership
the heads of agencies to discipline subordinate employees. of gains.
There is no provision under the present Local Government Code 3. Therefore the cockpit is a conjugal property over
expressly rescinding the authority of the Department of Finance which the Teves’ have pecuniary interest.
to exercise disciplinary authority over its employees. By the
same token, there is nothing that prohibits the city treasurer
from filing a complaint against petitioner. ISSUE/HELD
WoN a public official charged with violation of Section 3(h) of the Anti-
Graft and Corrupt Practices Act, for unlawful intervention, in his official operate the Valencia Cockpit and Recreation Center is "not well-
capacity, in the issuance of a license in favor of a business enterprise in founded."
which he has a pecuniary interest may be convicted, together with his o Only the Sangguniang Bayan could have issued a permit
spouse, of violation of that same provision premised on his mere to operate the Valencia Cockpit in the year 1992.
possession of such interest. – NO. Only Mayor Teves is guilty. The
spouse is acquitted o Mayor Teves could not have intervened or taken part in
his official capacity in the issuance of a cockpit license
Teves’ Arguments
during the material time, as alleged in the information,
• Their constitutional right to be informed of the nature and cause because he was not a member of the Sangguniang
of the accusation against them was violated. Bayan.
1. The charge was for alleged unlawful intervention • There is no legal basis to convict Teresita Teves as a co-
of Mayor Teves in his official capacity in the issuance of conspirator in the absence of a finding that Mayor Teves himself
a cockpit license in violation of Section 3(h) of the Anti- is guilty of the offense charged.
Graft Law.
o In short, the Sandiganbayan correctly absolved the
2. But they were convicted of having a direct Teves’ of the charge based on the first mode.
financial or pecuniary interest in the Valencia Cockpit
• The Sandiganbayan, however, convicted the petitioners of
and Recreation Center prohibited under Section 89(2) of
violation of Section 3(h) of the Anti-Graft Law based on the
the LGC of 1991, which is essentially different from the
second mode.
offense with which they were charged.
o It reasoned that the evidence overwhelmingly evinces
• Their alleged prohibited pecuniary interest in the Valencia
that Mayor Teves had a pecuniary interest in the
Cockpit in 1992 was not proved.
Valencia Cockpit, which is prohibited under Section
1. The Sandiganbayan presumed that since Mayor 89(2) of the LGC of 1991.
Teves was the cockpit operator and licensee in 1989,
• The evidence for the prosecution has established that petitioner
said interest continued to exist until 1992.
Edgar Teves, then mayor of Valencia, Negros Oriental, owned
2. It also presumed that the cockpit was the the cockpit in question.
conjugal property of Mayor Teves and his wife, and that
o Only the management of the cockpit was transferred to
their pecuniary interest thereof was direct. But under
the regime of conjugal partnership of gains, any interest Teresita Teves effective January 1990. Being the owner
thereon is at most inchoate and indirect. of the cockpit, his interest over it was direct.
• Teresita Teves should not have been convicted. She was • Even if the ownership of Edgar Teves over the cockpit were
charged of conspiring with Mayor Teves but said conspiracy was transferred to his wife, still he would have a direct interest
not established. thereon because they remained married to each other from
1983 up to 1992, and as such their property relation can be
Ratio presumed to be that of conjugal partnership of gains in the
• There are two modes by which a public officer who has a direct absence of evidence to the contrary.
or indirect financial or pecuniary interest in any business, Hence, his interest in the Valencia Cockpit is direct and
contract, or transaction may violate Section 3(h) of the Anti- is, therefore, prohibited under Section 89(2) of the LGC
Graft Law. of 1991.
o The first mode is if in connection with his pecuniary
o “Section 89. Prohibited Business and Pecuniary
interest in any business, contract or transaction, the
Interest. – (a) It shall be unlawful for any local
public officer intervenes or takes part in his official
government official or employee, directly or
indirectly, to:
o The second mode is when he is prohibited from having
(2) Hold such interests in any cockpit or other
such interest by the Constitution or any law.
games licensed by a local government unit….
• The Sandiganbayan found that the charge against Mayor Teves
• The offense proved, therefore, is the second mode of violation of
for causing the issuance of the business permit or license to
Section 3(h) of the Anti-Graft Law, which is possession of a o Hence, the offense proved is necessarily included in the
prohibited interest. offense charged, or the offense charged necessarily
includes the offense proved.

WoN the Teves’ can be convicted thereof, considering that it was Under what law should Mayor Teves be convicted – The Local
not charged in the information – YES Government Code.

Ratio Ratio
• Section 3(h) of the Anti-Graft Law is a general provision, it
• Under the variance doctrine, when there is a variance between
being applicable to all prohibited interests while Section 89(2) of
the offense charged in the complaint or information and that
the LGC of 1991 is a special provision, as it specifically treats of
proved, and the offense as charged is included in or necessarily
interest in a cockpit.
includes the offense proved, the accused shall be convicted of
the offense proved which is included in the offense charged, or • The LGC of 1991, which specifically prohibits local officials from
of the offense charged which is included in the offense proved. possessing pecuniary interest in a cockpit licensed by the local
government unit and which, in itself, prescribes the punishment
• An offense charged necessarily includes the offense proved
for violation thereof, is paramount to the Anti-Graft Law, which
when some of the essential elements or ingredients of the
penalizes possession of prohibited interest in a general manner.
former, as alleged in the complaint or information, constitutes
the latter. And an offense charged is necessarily included in the • Moreover, the latter took effect on 17 August 1960, while the
offense proved when the essential ingredients of the former former became effective on 1 January 1991. Being the earlier
constitute or form part of those constituting the latter. statute, the Anti-Graft Law has to yield to the LGC of 1991,
which is the later expression of legislative will.
• The elements of the offense charged in this case, which is
unlawful intervention in the issuance of a cockpit license in • Teresita Teves must be acquitted. The charge against her is
violation of Section 3(h) of the Anti-Graft Law, are conspiracy in causing "the issuance of the appropriate business
permit/license to operate the Valencia Cockpit and Recreation
1. The accused is a public officer;
Center." For this charge, she was acquitted. But as discussed
2. He has a direct or indirect financial or pecuniary interest in earlier, that charge also includes conspiracy in the possession of
any business, contract, or transaction, whether or not prohibited prohibited interest.
by law; and
• There is no conspiracy in just being married to an erring spouse.
3. He intervenes or takes part in his official capacity in
• For a spouse or any person to be a party to a conspiracy as to
connection with such interest.
be liable for the acts of the others, it is essential that there be
• On the other hand, the essential ingredients of the offense intentional participation in the transaction with a view to the
proved, which is possession of prohibited interest in violation of furtherance of the common design.
Section 3(h) of the Anti-Graft Law, are as follows:
1. The accused is a public officer; Javellana vs. DILG August 10, 1992 | Griño-Aquino
2. He has a direct or indirect financial or pecuniary interest in
any business, contract or transaction; and Facts: Attorney Erwin B. Javellana was an elected City Councilor of
3. He is prohibited from having such interest by the Constitution Bago City, Negros Occidental. An administrative complaint was filed by
or any law. the City Engineer against him. The complaint alleged that Javellana has
continuously engaged in the practice of law without securing authority
• Rhe essential ingredients of the offense proved constitute or for that purpose from the Regional Director, Department of Local
form part of those constituting the offense charged. Government, as required by DLG Memorandum Circular No. 80-38 in
o The first and second elements of the offense charged, as relation to DLG Memorandum Circular No. 74-58. Javellana, as counsel
alleged in the information, constitute the offense for two other LGU employees, filed a case against the City Engineer for
proved. "Illegal Dismissal and Reinstatement with Damages." Javellana also
appeared as counsel in several criminal and civil cases in the city. authority to prescribe rules on the practice of law. The Local
Government Code and DLG Memorandum Circular No. 90-81 simply
Subsequently, the Secretary of the DILG issued Memorandum Circular prescribe rules of conduct for public officials to avoid conflicts of interest
No. 90-81 setting forth guidelines for the practice of professions by local between the discharge of their public duties and the private practice of
elective officials. Five months later, the Local Government Code of 1991 their profession, in those instances where the law allows it.
(RA 7160) was signed into law. Section 90 provides that Sanggunian
members who are members of the bar may not appear as counsel in a • WON Section 90 of the Local Government Code constitutes class
case where the government is the adverse party. legislation – NO.

Javellana contends that DLG Memorandum Circulars Nos. 80-38 and 90- Section 90 of the Local Government Code does not discriminate against
81 and Section 90 of the new Local Government Code (RA 7160) is lawyers and doctors. It applies to all provincial and municipal officials in
unconstitutional because: (1) the Supreme Court has the sole and the professions or engaged in any occupation. If there are some
exclusive authority to regulate the practice of law (Article VIII, Section 5 prohibitions that apply particularly to lawyers, it is because of all the
of the 1987 Constitution), and (2) they constitute class legislation, being professions, the practice of law is more likely than others to relate to, or
discriminatory against the legal and medical professions for only affect, the area of public service.
sanggunian members who are lawyers and doctors are restricted in the
exercise of their profession while dentists, engineers, architects,
teachers, opticians, morticians and others are not so restricted (RA Social Justice Society vs Lina (December 8, 2008; Nachura, J)
7160, Sec. 90 [b-1]).
FACTS: SJS, a registered political party, filed a petition for declaratory
Issues/Held: relief against then Secretary of DILG, respondent Lina. The petition
sought the proper construction of Sec 90 of RA 7160, specifically
• WON the complaint against the City Engineer is a complaint paragraph (a) which provides: All governors, city and municipal mayors
against the government – YES. are prohibited from practicing their profession or engaging in any
occupation other than the exercise of their functions as local chief
Complaints against public officers and employees relating or incidental executives.
to the performance of their duties are necessarily impressed with public
interest for by express constitutional mandate, a public office is a public Petitioner: Actors who were elected as governors, city and municipal
trust. The complaint for illegal dismissal against the City Engineer is in mayors were disallowed by law to appear in movies and television
effect a complaint against the City Government of Bago City, their real programs as one of the characters therein, for this would give them
employer, of which petitioner Javellana is a councilman. Hence, undue advantage over their political opponents, and would considerably
judgment against the City Engineer would actually be a judgment reduce the time that they must devote to their constituents.
against the City Government. By serving as counsel for the complaining
employees and assisting them to prosecute their claims against the City Respondent filed a motion to dismiss on the ff grounds:
Engineer, the petitioner violated Memorandum Circular No. 74-58 (in
(1) petitioner has no legal;
relation to Section 7[b-2] of RA 6713) prohibiting a government official
from engaging in the private practice of his profession, if such practice
(2) it is not the real party-in-interest;
would represent interests adverse to the government.
(3) there is no judicial controversy;
• WON the statute and the circular trenches upon the Supreme
Court's power and authority to prescribe rules on the practice of law (4) there is no need for construction of the subject provision;
– NO.
(5) there is already a breach of the statute as alleged in the petition
Petitioner's contention that Section 90 of the Local Government Code of itself; and
1991 and DLG Memorandum Circular No. 90-81 violate Article VIII,
Section 5 of the Constitution is completely off tangent. Neither the (6) declaratory relief is not the proper remedy.
statute nor the circular trenches upon the Supreme Court's power and
Trial court dismissed the petition. a petition for declaratory relief with the trial court.

ISSUES: WON the trial court erred in dismissing the petition on The lower court held the questioned expenses as authorized
technical grounds – NO expenditures of the SEF.

HELD: Although the Court agreed with the petitioners that the Petitioner’s argument: LGC (Sec 235, 272, 100(c)) repealed RA 5447
requirement of locus standi may be set aside where the issues involves and that since salaries, personnel-related benefits and scholarship
paramount public interest, the Court nevertheless affirmed the dismissal grants are not among those authorized as lawful expenditures of the
of the petition for being an improper remedy. SEF under the LGC, they should be excluded therefrom.

A petition for declaratory relief is an inappropriate remedy to enforce Moreover, petitioner claims that since what is allowed for local school
compliance with Section 90 of R.A. 7160, and to prevent local chief boards to determine under Sec 99 of the LGC is only the
executives Santos-Recto, Lapid and Marquez from taking roles in movies “annual supplementary budgetary needss for the operation and
and television shows. maintenance of public schools," as well as the "supplementary local cost
to meet such needs," the budget of the local school boards for the
An action for declaratory relief should be filed by a person interested establishment and maintenance of extension classes should be
under a deed, a will, a contract or other written instrument, and whose construed to refer only to the upkeep and maintenance of public school
rights are affected by a statute, an executive order, a regulation or an building, facilities and similar expenses other than personnel-related
ordinance. The purpose of the remedy is to interpret or to determine the benefits. This is because, petitioner argued, the maintenance and
validity of the written instrument and to seek a judicial declaration of operation of public schools pertain principally to the DECS.
the parties’ rights or duties thereunder. For the action to prosper, it
must be shown that (1) there is a justiciable controversy; (2) the ISSUE:
controversy is between persons whose interests are adverse; (3) the
party seeking the relief has a legal interest in the controversy; and (4) 1. WON the salaries and personnel-related benefits of public school
the issue is ripe for judicial determination. teachers appointed by local chief executives in connection with
the establishment and maintenance of extension classes can be
In the petition filed with the trial court, petitioner failed to allege the charged to the SPF – YES
ultimate facts which satisfy these requisites. Also, as admitted by the
petitioner, the provision the interpretation of which is being sought has 2. WON the expenses for college scholarship grants can be charged
already been breached by the respondents.
to the SPF – NO
COA of the Province of Cebu vs Province of Cebu (November 29,
2001; Ynares-Santiago, J) 3. WON a petition for declaratory relief is proper - YES

FACTS: The provincial governor of the province of Cebu, as chairman of HELD:

the local school board, under Section 98 of the Local Government Code,
appointed classroom teachers who have no items in the DECS plantilla 1. The Court held that the legislature intended the SEF to answer for the
to handle extension classes that would accommodate students in the compensation of teachers handling extension classes. They based this
public schools. on portions of the deliberations of the Senate on the second reading of
the LGC on July 30, 1990 and deliberations in the House of
In the audit of accounts conducted by the Commission on Audit (COA) Representatives on August 16, 1990.
of the province, it appeared that the salaries and personnel-related
benefits of the teachers appointed by the province for the extension Also, in Sec 534 of the LCG, it only expressly repealed Section 3, of R.A.
classes and college scholarship grants of the province were charged No. 5447, which deals with the "Allocation of taxes on Virginia type
against the provincial Special Education Fund (SEF). The COA issued cigarettes and duties on imported leaf tobacco." The failure to add a
Notices of Suspension to the province of Cebu, saying that specific repealing clause particularly mentioning the statute to be
disbursements for the salaries of teachers and scholarship grants are repealed indicates that the intent was not to repeal any existing law on
not chargeable to the provincial SEF. This prompted the governor to file the matter, unless an irreconcilable inconsistency and repugnancy exists
in the terms of the new and the old laws. Hence, the provisions
allocating funds for the salaries of teachers under Section 1, of R.A. No. Osea v. Malaya (2002)
5447, which are not inconsistent with Sections 272 and 100 (c) of the
Local Government Code, remain in force and effect. FACTS: Dr. Eleanor Osea (petitioner) filed a protest case with the Civil
Service Commission alleging that:
Even under the doctrine of necessary implication, the allocation of the • she was the appointed Officer-in-Charge, Assistant Schools
SEF for the establishment and maintenance of extension classes Division Superintendent of Camarines Sur, by DECS Secretary
logically implies the hiring of teachers who should, as a matter of course Ricardo T. Gloria, upon the endorsement of the Provincial School
be compensated for their services. Every statute is understood, by Board of Camarines Sur;
implication, to contain all such provisions as may be necessary to • instead, President Fidel Ramos appointed Dr. Corazon Malaya
effectuate its object and purpose, or to make effective rights, powers,
(respondent) to the position of Schools Division Superintendent
privileges or jurisdiction which it grants, including all such collateral and
of Camarines Sur despite the lack of prior consultation with the
subsidiary consequences as may be fairly and logically inferred from its
Provincial School Board and in violation of Section 99 4 of the
Local Government Code of 1991; and
• the appointment being null and void, should be recalled and set
It should be made clear, however, that not every kind of personnel-
related benefits of public school teachers may be charged to the SEF.
The SEF may be expended only for the salaries and personnel-related
The CSC dismissed the protest complaint and held that Section 99 of the
benefits of teachers appointed by the local school boards in connection
Local Government Code of 1991 contemplates a situation where the
with the establishment and maintenance of extension classes.
DECS issues the appointments, whereas respondent’s appointment was
2. A reading of the pertinent laws of the LGC reveals that said grants made by no less than the President, in the exercise of his appointing
are not among the projects for which the proceeds of the SEF may be power. Moreover, the designation of respondent as Schools Division
appropriated. It should be noted that Sec 100 (c) and 272 of the LGC Superintendent of Camarines Sur and of petitioner as Schools Division
substantially reproduced Sec 1, of R.A. No. 5447. But, unlike payment Superintendent of Iriga City were in the nature of reassignments, in
of salaries of teachers which falls within the ambit of "establishment and which case consultation with the local school board was unnecessary.
maintenance of extension classes" and "operation and maintenance of
public schools," the "granting of government scholarship to poor but ISSUE: WON the act of Pres. Ramos (appointing Dr. Malaya) was done
deserving students" was omitted in Sections 100 (c) and 272 of the in contravention of the pertinent LGC provision and thus should be
Local Government Code. declared void – NO because:
• the act of the President was done within the appointing power
The Court cannot apply the doctrine of necessary implication inasmuch vested in him by law
as the grant of scholarship is neither necessary nor indispensable to the • the clear wordings of Sec. 99 provide that the section is only
operation and maintenance of public schools. Instead, such scholarship applicable to appointments made by the DECS
grants may be charged to the General Funds of the province.
RATIO: 1. At the time of the enactment of the Local Government Code,
3. SolGen’s argument: the Notices of Suspension issued by the COA to schools division superintendents were appointed by the head of the
the respondent province amounted to a breach or violation, and DECS to specific division or location. However, in 1994, the Career
therefore, the petition for declaratory relief should have been denied by Executive Service Board issued Memorandum Circular No. 21, Series of
the trial court. 1994, placing the positions of schools division superintendent and
assistant schools division superintendent within the career executive
Court: As held in Shell Company of the Philippines, Ltd. v. Municipality 4
of Sipocot, breach of the statute subject of the controversy will not Sec. 99. Functions of Local School Boards. --- The provincial, city or municipal school
board shall: xxx xxx xxx.
affect the case; the action for declaratory relief will prosper because the
applicability of the statute in question to future transactions still remains
The Department of Education, Culture and Sports shall consult the local school
to be resolved. Absent a definite ruling in the instant case for
boards on the appointment of division superintendents, district supervisors, school principals,
declaratory relief, doubts as to the disposition of the SEF will persist. and other school officials.
service. Consequently, the power to appoint persons to career executive Thus, her designation was temporary. In fact, there was a need to
service positions was transferred from the DECS to the President recommend her to the President for appointment in a permanent
capacity. Inasmuch as she occupied her position only temporarily,
2. The appointing power vested in the President may not be specific as petitioner can be transferred or reassigned to other positions without
to location (as per Memo No.21), therefore, the prerogative to designate violating her right to security of tenure.
the appointees to their particular stations remained with the DECS
Secretary, pursuant to the exigencies of the service (as provided in
DECS Order No. 75, Series of 1996.) In the case at bar, the
appointment issued by President Ramos in favor of respondent to the
Schools Division Superintendent position on September 3, 1996 did not
specify her station. It was Secretary Gloria who, in a Memorandum
dated November 3, 1997, assigned and designated respondent to the
Division of Camarines Sur, and petitioner to the Division of Iriga City.
Therefore, the CSC and the CA are correct in stating that the
designation of respondent as Schools Division Superintendent of
Camarines Sur was not a case of appointment.

Appointment is different from reassignment. An appointment may be

defined as the selection, by the authority vested with the power, of an
individual who is to exercise the functions of a given office. When
completed, usually with its confirmation, the appointment results in
security of tenure for the person chosen unless he is replaceable at
pleasure because of the nature of his office. On the other hand, a
reassignment is a movement of an employee from one organizational
unit to another in the same department or agency which does not
involve a reduction in rank, status or salary and does not require the
issuance of an appointment. In the same vein, a designation connotes
merely the imposition of additional duties on an incumbent official.

IN this case, the respondent’s designation partook of the nature of a

reassignment from Iriga City, where she previously exercised her
functions as Officer-in-Charge- Schools Division Superintendent, to
Camarines Sur. Thus, the requirement in Section 99 of the LGC, of prior
consultation with the local school board, does not apply since the same
section refers to appointments made by DECS. (obiter dictum: The
“plain meaning rule” or verba legis in statutory construction is
applicable in this case. Where the words of a statute are clear, plain and
free from ambiguity, it must be given its literal meaning and applied
without attempted interpretation.)

Lastly, petitioner has no vested right to the position since her

qualification to the office lacks one essential ingredient, i.e., her
appointment thereto. While she was recommended by Secretary Gloria
to President Ramos for appointment to the position of Schools Division
Superintendent of Camarines Sur, the recommendation was not acted
upon by the President. Petitioner’s designation as Officer-in-Charge,
Assistant Schools Division Superintendent, was expressly made subject
to further advice from the Department of Education, Culture and Sports.