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LAW ON PUBLIC OFFICE AND PUBLIC OFFICERS

By: The Comity of Seven

I. DEFINITION AND GENERAL PRINCIPLES

Public Office – It is the right, authority, and duty created and conferred by law, by which for a
given period, either fixed by law or enduring at the pleasure of the creating power, an individual
is invested with some portion of the sovereign functions of the government, to be exercised by him
for the benefit of the public (Fernandez v. Sto. Tomas, G.R. No. 116418, March 7, 1995).

What are the elements of public office?

1. It must be created by law or by ordinance authorized by law;
2. It must possess some sovereign functions of government to be exercised for public interest;
3. The functions must be defined, expressly or impliedly, by law;
4. The functions must be exercised by an officer directly under the control of law, not under
that of a superior officer, unless they are functions conferred by law upon inferior officers,
who, by law, are under the control of a superior; and
5. It must have permanency or continuity, not temporary or occasional. (State v. Hawkins,
257 Pac, 411, 53 A.L. R. 583)

Public Officer – Any person who, by direct provision of law, popular election or appointment by
competent authority, shall take part in the performance of public functions in the government of
the Philippine Islands, or shall perform in said Government or in any of its branches, public duties
as an employee, agent, or subordinate official, of any rank or class (Art. 203, Revised Penal Code).

A public officer exercises delegated powers: A public official exercises power, not rights. The
government itself is merely an agency through which the will of the state is expressed and
enforced. Its officers therefore are likewise agents entrusted with the responsibility of discharging
its functions. As such, there is no presumption that they are empowered to act, there must be a
delegation of such authority, either express or implied. In the absence of a valid grant, they are
devoid of power (Villegas v. Subido, G.R. No. L-26534 (1969))

II. CHARACTERISTICS OF PUBLIC OFFICE

1. It is a Public trust
The principle of “public office is a public trust” means that the officer holds the public
office in trust for the benefit of the people—to whom such officers are required to be accountable
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at all times, and to serve with utmost responsibility, loyalty, and efficiency, act with patriotism and
justice, and lead modest lives (Sec. 1, Art. XI, Constitution).

2. It is not a Property
The concept "public office is not a property” means that it is outside the commerce of man;
hence, it cannot be the subject of a contract (Santos v. Secretary of Labor, G.R. No.L-21624, Feb.
27, 1968).

3. It is personal to the Public officer

It is not a property transmissible to the heirs of the public officer upon the latter’s death
(Santos v. Secretary of Labor, G.R. No. L-21624, Feb. 27, 1968).

4. It is not a vested right.

NOTE:
However, right to a public office is nevertheless a protected right. With the exception of
constitutional offices that provide for some immunity as regards salary and tenure, right to a public
office is protected by the constitutional provision on security of tenure. It cannot be taken from its
incumbent without due process (Morfe v. Mutuc, G.R. No. L-20387, Jan. 31, 1968; Aparri v. CA,
G.R. No. L-30057, Jan. 31, 1984)

5. It is not a Natural right

Under our political system, the right to hold public office exists only because and by virtue
of some law expressly or impliedly creating and conferring it.

III. REQUIREMENTS FOR PUBLIC OFFICE

Requirements for Public Office

1. Eligibility – It is the state or quality of being legally fit or qualified to be chosen.
2. Qualification – This refers to the act which a person, before entering upon the performance of
his duties, is by law required to do such as the taking, and often, subscribing and filing of an official
oath, and, in some cases, the giving of an official bond. It may refer to:
a. Endowments, qualities or attributes which make an individual eligible for public office,
(e.g. citizenship); or
b. The act of entering into the performance of the functions of a public office, (i.e. taking
oath of office).
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NOTE:
To entitle a public officer to hold a public office, he must possess all the qualifications and
none of the disqualifications prescribed by law for the position not only at the time of his election
or appointment but also during his incumbency.
NOTE:
The qualifications for public office are continuing requirements and must be possessed not
only at the time of appointment or election or assumption of office but during the officer’s entire
tenure. Once any of the required qualification is lost, his title may be reasonably challenged
(Frivaldo v. COMELEC, G.R. No. 87193, June 23, 1989; Aguila v. Genato, G. R No. L-55151,
March 17, 1981).

a. Appointment
The act of designation by the executive officer, board or body to whom that power has been
delegated, the individual who is to exercise the powers and functions of a given office.
In this sense, it is to be distinguished from the selection or designation by a popular vote
(Borromeo v. Mariano, G.R. No. L-16808, Jan. 3, 1921).
It refers to the nomination or designation of an individual to an office.
It is, in law, equivalent to “filling a vacancy” (Conde v. National Tobacco Corp., G.R. No.
L-11985, Jan. 28, 1961)

Nature of Appointment
Appointment is an essentially discretionary power and must be performed by the officer in
which it is vested according to his best lights, the only condition being that the appointee should
possess the qualifications required by law. If he does, then the appointment cannot be faulted on
the ground that there are others better qualified who should have been preferred. This is a political
question involving considerations of wisdom which only the appointing authority can decide
(Luego v. CSC, G.R. No. L-69137, Aug. 5, 1986).

NOTE:
The appointment of public officials is generally looked upon as properly belonging to the
executive department. Appointments may also be made by Congress or the courts, but when so
made should be taken as an incident to the discharge of functions within their respective spheres
(Government v. Springer, 50 Phil. 259, affirmed in Springer v. Government, 277 U.S. 189, 72 Ed.
845, 48 S.CT. 480 (1928)).

GR: The appointing power is the exclusive prerogative of the President, upon which no limitations
may be imposed by Congress
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XPN: Those resulting from the need of securing the concurrence of the Commission of
Appointments and from the exercise of the limited power to prescribe the qualifications or
disqualifications to a given appointive office (Rafael v. Embroidery and Apparel Control and
Inspections Board, G.R. No. L-19978, Sept. 29, 1967).

NOTE:
Where the law is silent as to who is the appointing authority, it is understood to be the
President of the Philippines (Rufino v. Endriga, G.R. No. 139554, July 21, 2006).
NOTE:
Absent any contrary statutory provision, the power to appoint carries with it the power to
remove or discipline (Aguirre, Jr. v. De Castro, G.R. No. 127631, Dec. 17, 1999).

b. Designation – The mere imposition of new or additional duties to be performed by an officer

in a special manner while he performs the function of his permanent office.
The officer is already in service by virtue of an earlier appointment performing other
functions.
It may be terminated anytime.
It implies temporariness and therefore does not confer upon the designee security of tenure.
NOTE:
The President has the power to temporarily designate an officer already in the government
service or any other competent person to perform the functions of an office in the executive branch.
Temporary designation cannot exceed one year.

c. Commission
Is the written evidence of appointment.
Table 1. Distinguish the following terms: (1) Appointment; (2) Designation; (3) Commission;
APPOINTMENT DESIGNATION COMMISSION
It is the selection, by the Connotes merely the The written evidence of the
authority vested with the imposition by law of appointment.
power of an individual who is additional duties on an
to exercise the power of a incumbent official.
given once. (Binamira v.
Garucho, 188 SCRA 154)
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IV. CLASSIFICATIONS OF APPOITNMENT

Classification of Appointments: (A) Regular Appointment; (B) Ad Interim Appointment;

(C) Permanent Appointment; (D) Temporary Appointment

1. Regular Appointment – One made by the President while Congress is in session, which takes
effect only after confirmation by the Commission on Appointment and, once approved, continues
until the end of the term of the appointee.

2. Ad Interim Appointment – One made by the President while Congress is not in session, which
takes effect immediately, but ceases to be valid if:
a. disapproved by the Commission on Appointments; or
b. upon the next adjournment of Congress, either in regular or special session
(inaction by the CA).
Nature of Ad Interim Appointment
Ad interim appointments are permanent appointments. It is permanent because it takes
effect immediately and can no longer be withdrawn by the President once the appointee qualified
into office. The fact that it is subject to confirmation by the CA does not alter its permanent
character. In cases where the term of said ad interim appointee had expired by virtue of inaction
by the Commission on Appointments, he may be reappointed to the same position without
violating the Constitutional provision prohibiting an officer whose term has expired from being
re-appointed (Matibag v. Benipayo, G.R. No. 130657, April 1, 2002).
NOTE:
Being a permanent appointment, an ad interim appointee pending action by the
Commission on Appointments enjoys security of tenure (Marombhosar v. CA, G.R. No. 126481,
Feb. 18, 2000).
Table 2. Distinguish regular from ad interim appointment.
REGULAR APPOINTMENT AD INTERIM
It is an appointment made by the President It is an appointment made while Congress
while Congress is in session after the is not in session, before confirmation by the
nomination is confirmed by the Commission Commission on Appointments. It is
on Appointments. It continues until the end of immediately effective and ceases to be valid if
the term. disapproved or bypassed by t e Commission on
Appointment of Congress.

3. Permanent Appointment –an appointment in the civil service issued to a person who meets all
the requirements for the position to which he is being appointed, including the appropriate
eligibility prescribed, in accordance with the provisions of law, rules and standards promulgated
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in pursuance thereof. It lasts until lawfully terminated, thus, enjoys security of tenure (Sec. 25(a),
PD 807 [Civil Service Decree]).

4. Temporary Appointment – A kind of appointment issued to a person who meets all the
requirements for the position to which he is being appointed, except the appropriate civil service
eligibility, in the absence of appropriate eligibilities and it becomes necessary in the public interest
to fill a vacancy (Sec. 25(b), PD 807).

NOTE:
That such temporary appointment shall not exceed 12 months, but the appointee may be
replaced sooner if a qualified civil service eligible becomes available.
One who holds a temporary or acting appointment has no fixed tenure of office, and,
therefore, his enjoyment can be terminated at the pleasure of the appointing power even without
hearing or cause (Erasmo v. Home Insurance & Guaranty Corporation, G.R. No. 139251, Aug.
29, 2002).
However, if the appointment is for a specific period, the appointment may not be revoked
until the expiration of the term.
NOTE:
Acquisition of civil service eligibility will not automatically convert the temporary
appointment into a permanent one (Prov. Of Camarines Sur v. CA, G.R. No. 104639, July 14,
1995).

V. DIFFERENT STEPS IN THE PROCESS OF APPOINTMENT

Table 3. Different Steps in the Process of Appointment
For regular appointments For appointments which do For appointments to the
which need confirmation of not need confirmation of career service of the civil
CA CA service

1. Nomination by the 1. Appointment by An appointment to the

President appointing authority career- service of the Civil
2. Confirmation by the 2. Issuance of the Service is not deemed
CA commission complete until attestation
3. Issuance of the 3. Acceptance by the approval by the Civil Service
commission appointee Commission. Without the
4. Acceptance by the favorable certification or
appointee Acceptance of the approval of the CSC, no title
appointment by the appointee to the office can be deemed or
is the last act that completes be permanently vested in
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In case of ad interim the appointing process. favor of the appointee, and the
appointments, the nomination, (Lacson v. Romero, 84 Phil. appointment can still be
issuance of the appointment 740) revoked or withdrawn by the
and acceptance by the appointing authority.
appointee precede the
confirmation by the CA.

VI. THE BEST EVIDENCE OF AN APPOINTMENT

The best evidence of an appointment is his written commission. (The delivery of the
commission is the last act required by the appointing power and the same completes the
appointment.)

VII. KINDS OF ACCEPTANCE

a) Express – it may be made verbally or writing; and
b) Implied – if the officer is in actual occupation and exercise of the office, his acceptance of
it would be presumed. (Mechem, Pub. Off., Sec. 252)
NOTE:
The person so appointed a legal right to his position which is protected by law and the
Constitution.

VIII. DISNTINCTION, APPOINTMENT, AND ELECTION

Distinction, appointment and election
In, appointment, the person who is to exercise the function of a given office is made by
the executive officer, board, or body, to whom the power to designate is given. (Appari v. Court
of Appeals, 127 SCRA 231)
Election, the choice is made by an enfranchised citizenry by virtue of the right of suffrage.

What is required for an Office to be filled up either by an Appointment or by Election?

The office to be filled up should be vacant following the principle that no person may be
an appointed to an office which is not vacant no matter how qualified he is for a certain position.
(Jocom v. Regalado, 24 SCRA 73)
There is vacancy when there is no person lawfully authorized to assume and exercise at
present the duties of the office.

Different kinds of vacancies

Original
There is and office created but no one has as yet been chosen to fill it.
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Constructive
The incumbent has no legal right to the office and he may be replaced.
Accidental
When on account of death, resignation, removal, or abandonment, the incumbent is
separated from the service
Absolute
There is no successor yet to the incumbent whose term expired.

IX. ELIGIBILITY AND QUALIFICATION

A. MEANING OF THE TERM "QUALIFICATION"

It is understood in different senses:
(1) It may refer to the qualities or endowments required of the public officer in order that
he may be considered eligible for public office (i.e., age, citizenship, and academic qualifications);
(2) It may refer to the act of enabling a person to perform the duties and functions of his
office (i.e., taking the oath of office).
In the first one, the person appointed or elected must possess the prescribed qualifications
at the time of his appointment or election and during the period of the official relationship.
In the second, the failure to perform an act required by law could affect the officer's title to the
given office. An oath of office is a qualifying requirement for a public office. (Lecaroz v.
sandiganbayan, GSR. No. 130872, March 25, 1999)
Under B.P. Big. 881, Sec. 11, thereof, it is provided that "the office of any official elected
who fails or refuses to take his oath office within six months from his proclamation shall be
considered vacant, unless said failure is for a cause or causes beyond his control." [Example: (1)
Taking an oath or affirmation to uphold and defend the Constitution; (2) Accountable officers are
required to be properly bonded].

Who prescribes the qualifications?

Qualifications may be prescribed by the Constitution or by statute. If the same are
prescribed by the Constitution, the qualifications are specifically enumerated and the legislature
cannot impose additional qualifications. If the qualifications are prescribed by law, it must do so
in such a detailed manner so as not to leave any discretion to the appointing power in making a
choice of the person to be appointed. Moreover, the qualification prescribed must be relevant to
the position.
The legislature could prescribe additional qualifications (1) when the Constitution does not
prescribe a qualification or qualifications; or (2) When the Constitution prescribes only for
minimum qualifications. Provided, the qualifications or disqualifications it prescribes should not
violate the Constitution. Otherwise, it can be assailed as unconstitutional. Hence, if a law provides
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that the mere filing of a criminal information for disloyalty is prima facie evidence of guilt which
is sufficient to disqualify a person from running for public office, the said law is, as it was
considered, unconstitutional. (Dumdao v. Comelec, 95 SCRA 400) REASON: It violates the
principle that a person is presumed innocent until his guilt is proved beyond reasonable doubt.

B. QUALIFICATIONS ARE CONTINUING REQUIREMENTS

They should be possessed on the date indicated by the Constitution or by law, and they are
continuing requirements which means that they must be possessed not only on the date of selection
or assumption but for the full duration of the officer’s incumbency. (Aguila v. Genato, 103
SCR4380)
Example:
Under the 1987 Constitution, the age qualification must be possessed on the day of the
election, not on the day of the proclamation of the winners of the board of canvassers, which was
the reckoning period used in the case of Espinoza v. Aquino (Electoral Case No. 9, Senate Elector
Tribunal)

X. DISABILITIES OF PUBLIC OFFICERS

Disabilities of Public Officers
The legislature has the right to prescribe the disqualifications in the same manner that it
can prescribe its qualifications, provided that prescribed disqualifications do not violate the
Constitution.
The disqualifications and inhibitions of public officers are determined as follows:
I. Constitutional Disqualifications and Disabilities
II. Disqualifications for Appointive Officers
III. Disqualifications under the Local Government Code

I. Constitutional Disqualifications and Disabilities

1. No candidate who has lost in any election, shall within one year after such election, be
appointed to any office in the Government or any Government-owned or controlled
corporations or in any of their subsidiaries. [Sec. 6, Art. IX-B]
2. No elective official shall be eligible for appointment or designation in any capacity to any
public office or position during his tenure [Sec. 7(1), Art. IX B] unless they forfeit their
seat
3. No appointive official shall hold any other office or employment in the Government or any
subdivision, agency or instrumentality thereof, GOCCs or their subsidiaries, unless
otherwise allowed by law or his position’s primary functions. [Sec. 7(2), Art. IX-B]
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4. The President, Vice-President, the Members of the Cabinet, and the deputies or assistants
shall not, unless otherwise provided in the Constitution, hold any other office of
employment during their tenure
5. Impeachment: Judgment in cases of impeachment shall not extend further than removal
from office and disqualification to hold any office under the Republic of the Philippines
[Sec. 3(7), Art. XI]
6. No Senator or Member of the House of Representatives may hold any other office or
employment in the Government, or any subdivision, agency, or instrumentality thereof,
including GOCCs or their subsidiaries, during his term without forfeiting his seat.
(Incompatible Office)
7. Neither shall he be appointed to any office which may have been created nor the
emoluments thereof increased during the term for which he was elected
(Prohibited/Forbidden Office) [Sec. 13, Art. IV]
8. Members of the Supreme Court and of other courts established by law shall not be
designated to any agency performing quasi-judicial or administrative functions [Sec. 12,
Art. VII]
Exception: Designation to the Presidential Electoral Tribunal, Senate Electoral Tribunal or
House of Representatives Electoral Tribunal [Sec. 4 (7), Art. VII; Sec. 7, Art. VI]
[Macalintal v Presidential Electoral Tribunal, G.R. No. 191618 (2010)]
9. No member of a Constitutional Commission shall, during his tenure, hold any other office
or employment. [Sec. 2, Art. IX-A]. The same disqualification applies to the Ombudsman
and his Deputies [Sec. 8, Art. XI]
10. Members of the Constitutional Commissions must not have been candidates for any
elective position in the elections immediately preceding their appointment [Sec. 1, Art. IX-
B, IX-C, IX-D]
11. Ombudsman and his Deputies shall not be qualified to run for any office in the election
immediately succeeding their cessation from office [Sec. 11, Art. XI]
12. The President’s spouse and relatives by consanguinity or affinity within the fourth civil
degree shall not during his tenure be appointed as Members of the Constitutional
Commissions, Office of the Ombudsman, Secretaries, Undersecretaries, Chairmen or
Heads of Bureaus or Officers [Sec. 12, Art. VII]
Other Disabilities of the President, Vice President, Members of Cabinet, and their
Deputies and Assistants:
1. They shall not practice any other profession.
2. They shall not participate, directly or indirectly, in any business.
3. They shall not be financially interested, directly or indirectly, in any contract with, or in
any franchise or special privilege granted by the government or any subdivision, agency or
instrumentality thereof, including any GOCC or their subsidiaries.
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4. They shall strictly avoid conflict of interest in the conduct of their office.
5. The President is also prohibited during his tenure from appointing his spouse and relatives
by consanguinity or affinity within the fourth civil degree. [Sec. 13, Art. VII]
Other Disabilities of Members of Congress:
1. They may not personally appear as counsel before any court, election tribunal, or quasi-
judicial body.
2. They shall not be financially interested, directly or indirectly, in any contract with, or in
any franchise or special privilege granted by the government or any subdivision, agency or
instrumentality thereof, including any GOCC or their subsidiaries during his term of office.
3. They shall not intervene in any government office for his pecuniary benefit or where he
may be called upon to act on account of his office. [Sec. 14, Art. VI]
Other Disabilities of Members of Constitutional Commissions:
1. They shall not engage in the practice of any profession or in the active management or
control of any business that in any way may be affected by the functions of his office.
2. They shall not be financially interested, directly or indirectly, in any contract with, or in
any franchise or special privilege granted by
3. the government or any subdivision, agency or instrumentality thereof, including any GOCC
or their subsidiaries
II. Disqualifications for Appointive Officers:
Under Administrative Code, Book V, Sec. 58- Limitations on Appointment

1. No elective official shall be eligible for appointment or designation in any capacity to any
public office or position during his tenure.
Exception to void appointment of elective official: The appointment will be valid if he
resigns from his elective seat. [DE LEON]

2. No candidate who has lost in any election shall, within one year after election, be appointed
to any office in the Government or any government-owned or controlled corporations or in
any of its subsidiaries.
3. No appointive official shall hold any other office or employment in the Government or any
subdivision, agency or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries.
Exception: Unless otherwise allowed by law or by the primary functions of his
position
1. When allowed by law, the positions may be totally unrelated to each other.
2. When the functions are related, the prohibition does not apply even in the absence
of an enabling law. [DE LEON]

Nepotism

The Civil Service Law prohibits all appointments in the national and local governments or
any branch or instrumentality thereof made in favor of the

relative of:
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1. appointing authority;
2. recommending authority;
3. chief of the bureau or office; or
4. person exercising immediate supervision over the appointee

Exceptions: The prohibition on nepotic appointments in the Civil Service Law does
not apply if the appointee is:

1. Person employed in a confidential capacity

2. Teachers
3. Physicians
4. Member of the Armed Forces of the Philippines

III. Disqualifications under the Local Government Code

The following persons are disqualified from running for any elective local position:

1. Sentenced by final judgment for an offense involving moral turpitude or for an offense
punishable by 1 year or more of imprisonment, within 2 years after serving sentence;
2. Removed from office as a result of an administrative case;
3. Convicted by final judgment for violating the oath of allegiance to the Republic;
4. Dual citizenship;
5. Fugitive from justice in criminal or nonpolitical cases here or abroad;
6. Permanent residents in a foreign country or those who have acquired the right to reside
abroad and continue to avail of the same right after the effectivity of the Local Government
Code; or Insane or feeble-minded. [Sec. 40, LGC]

XI. FAILURE TO QUALIFY

It is a well settled rule that the delay in qualifying does not mean that the office is
automatically forfeited. It will only give a justification to appropriate superior authorities to
prevent entry into the office until such time that the delay is explained by the appointee. Hence,
mere delay in the taking of an oath does not mean that the office is rejected and when the oath is
taken, the default is waived. However, if the law requires qualification within a specified time and
provides further that failure to do so will result in automatic loss of the right to the office, this has
to be complied with. Otherwise, the right to the office is automatically lost.

XII. DE FACTO AND DE JURE OFFICERS

A de facto officer is one who has the reputation of being the officer that he assumes to be,
and yet is not a good officer in point of law. Whereas, a de jure officer is one who is in all respects
legally appointed and qualified to exercise office, and a mere usurper or intruder.

Table 4. Below is the distinction between De Facto Officer and De Jure Officer:
De Facto Officer De Jure Officer
Requisites a. De jure office; a. A de jure office exists;
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b. He assumed office under b. He is legally qualified for

Basis of Authority / As to Reputation: he possesses
color of authority
How Ousted
Validity of Official Acts
Rule on Compensation
color of right or general the office;
acquiescence by the public; c. He is lawfully chosen to
c. He actually and physically such office;
possessed the office in good d. He undertakes to perform
faith. the duties of such office
according to
law’s prescribed mode.
Right: he has the lawful
office and performs its right/title to the office
duties under color of right, but
he is not technically qualified
to act in all points of law
In a direct proceeding Cannot be ousted even in a
(quo warranto) ; cannot be direct proceeding
ousted collaterally
Valid as to the public until his Valid, subject to exceptions
title to the office is adjudged (e.g. acting beyond his scope
insufficient of authority, etc.)
Conditionally entitled to Rightfully entitled to
Receive compensation: compensation’ the
only when no de jure officer is principle of “no work, no pay”
declared and only for actual is inapplicable to him
services
rendered

XIII. COMMENCEMENT OF OFFICIAL RELATIONS

The modes of commencing official relations are the following:
a. Election
b. Appointment
c. Others:
(i) Succession by operation of law;
(ii) Direct provision of law, e.g. ex-oficio officers

XIV. EIGHT IMPORANT PRINCIPLES

1. Appointment
2. Torio vs CSC
3. The next-in-rank rule
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4. De facto/De jure
5. Matters that fall within the exclusive jurisdiction of the CSC.
6. Kinds of Personal Actions
7. Modes of Termination of Official Relationship
8. Liability of Public Officers

I. Appointment
SEVEN PRINCIPLES REGARDING POWER AND AUTHORITY TO MAKE AN
APPOINTMENT
1. Essentially a discretionary power.
2. The appointing power, not the CSC, determines who among the several candidates for a
vacant position, has the best qualification.
3. CSC has no authority to direct appointing authority to appoint a certain person
4. Once appointment is issued and the moment the appointee assumes a position in the civil
service under a complete appointment, he acquires a legal, not merely equitable right which
is protected by the law and the Constitution.
5. Once the discretionary power of appointment has been exercised and the appointee
assumed the duties and functions of the position, the said appointment cannot be revoked
by appointing authority, on the mere ground that the protestant is more qualified that the
first appointee.
6. An appointee with temporary status need not possess the Civil Service eligibility required
by the position. This subject to the qualifications in Torio vs CSC.
7. The “next in rank” rule is not absolute.
II. Torio vs CSC. G.R. No. 99336

An appointee with a temporary status need not possess the civil service eligibility required
by the position provided he meets the following qualifications:
1. It is necessary in the public interest to fill up the vacancy;
2. There are no appropriate eligibles;
3. The temporary appointment shall not exceed 12 months;
4. He may be replaced sooner if a qualified Civil Service eligible becomes available.
III. The next-in-rank rule
The Doctrine of Next-in-Rank Rule can be found in Section 21 of Book VI, Title I, Subtitle
A, Chapter 5 of Executive Order No. 292 or the Administrative Code of 1987, to wit:
“Section 21. Recruitment and Selection of Employees. –
(2) When a vacancy occurs in a position in the first level of the Career Service as defined in Section
6, the employees in the department who occupy the next lower positions in the occupational group
under which the vacant position is classified, and in other functionally related occupational groups
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and who are competent, qualified and with the appropriate civil service eligibility shall be
considered for promotion.
In sum, the employees next-in-rank are those who occupy the next lower positions in the
occupational group under which the vacant position is classified, and in other functionally related
occupational groups, and who are competent, qualified and with the appropriate civil service
eligibility.
However, this concept was further clarified by the Supreme Court in the case of Jaime T.
Panis vs. Civil Service Commission and Bella V. Veloso (G.R. No. 102948, February 2, 1994)
penned by Honorable former Associate Justice Camilo D. Quiason, to wit:
“The concept of “next in rank” does not impose any mandatory or peremptory requirement
to appoint the person occupying the next lower position in the occupational group of the office.
What the Civil Service Law and the Administrative Code of 1987 provide is that if a vacancy is
filled up by the promotion, the person holding the position next in rank thereto “shall be considered
for promotion” xxx. In other words, one who is “next in rank” to a vacancy is given preferential
consideration for promotion to the vacant position, but it does not necessarily follow that he alone
and no one else can be appointed. There is no vested right granted the next in rank nor a ministerial
duty imposed on the appointing authority to promote the holder to the vacant position.”

IV. De facto/De jure (already discussed)

NOTE:
A de facto officer may be ousted in direct proceeding (e.g. Quo Warranto), not in a
collateral action.

V. Matters that fall within the exclusive jurisdiction of the CSC.

Disciplinary cases, and cases involving “personnel actions” affecting employees in the civil
service including appointment through certification, promotion, transfer, reinstatement, re-
employment, detail, reassignment, demotion and separation, and, of course, employment status
and qualification standards, are within the jurisdiction of the Civil Service.

VI. Kinds of Personal Actions

a) Promotion
b) Appointment through certification
c) Transfer
d) Re-employment
e) Reassignment
f) Reinstatement
g) Detail
 Page 16 of 30

A. PROMOTION
Definition: It is a movement from one position to another with increase in duties and
responsibilities as authorized by law and usually accompanied by an increase in pay.
Automatic Reversion Rule
All appointments in a chain of promotions must be submitted simultaneously for approval
by the Civil Service Commission. The disapproval of the appointment of a person proposed to
higher positions invalidates the promotion of those in the lower positions and automatically
restores them to their former positions. However, the affected persons are entitled to payment of
salaries for services actually rendered at a rate fixed in the promotional appointments.
Hence, the following are the requisites in order that said rule will apply:
1. There must be series of promotion.
2. All promotional appointments are simultaneously submitted to the Commission for
approval.
3. The Commission disapproves the appointment of a person to a higher position.
(Divinigracia v. Sto. Tomas, G.R. No. 110954, May 31, 1995)

B. APPOINTMENT THROUGH CERTIFICATION

Definition: It is issued to the person who has been selected from the list of qualified persons
certified by the CSC from an appropriate register of eligible, and who meets all the qualifications
prescribed for the position.
What is required for this kind of appointment?
The person to be selected or selected in a list of qualified persons certified but the CSC
from an appropriate register eligibles.
The person to be selected or selected meets all the qualifications prescribed for the position.

C. TRASNFER
Definition: It is a move from one position to another which is of equivalent rank, level or salary
without break in the service. Transfer may be imposed as an administrative penalty under current
Civil Service Rules.

D. RE-EMPLOYMENT
Definition: Names of persons who have been appointed permanently to positions in the career
service and who have been separated as a result of reduction in force and/or reorganization, shall
be entered in a list from which selection for re-employment shall be made.
 Page 17 of 30

When is this possible?

This happens when persons who were previously appointed permanently to positions in the
career service has been separated from the service on account of re-organization or reduction in a
list from which selection for re-employment shall be made.

E. REASSIGNEMENT
Definition: An employee be reassigned from one organizational unit to another in the same agency,
provided that such reassignment shall not involve reduction in rank, status or salary.

F. REINSTATEMENT
Definition: Any person who has been permanently appointed to a position in the career service and
who has, through no delinquency or misconduct, been separated therefrom, may be reinstated to a
position for which he is qualified.

G. DETAIL
Definition: It is the movement of an employee from one agency, provided that such reassignment
shall not involve reduction in rank, status or salary. This is a prerogative of CSC.
Nature: It is temporary; hence, it is allowed only for a limited period in the case of employees
occupying professional, technical, and scientific positions. (Republic vs. Court of Appeals, 182
SCRA 721)

VII. Modes of Termination of Official Relationship

a) Expiration of term and Tenure
b) Resignation
c) Recall
d) Removal
e) Reaching age limit
f) Abandonment
g) Prescription of the right to office.
h) Death
i) Impeachment
j) Failure to assume election office
k) Acceptance of incompatible office
l) Abolition of office
m) Conviction of a crim
n) Filing of certificate of candidacy.
 Page 18 of 30

A. EXPIRATION OF TERM OR TENURE

Distinction of term and tenure
Term means the time during which the public officer may claim to hold office as of right,
and fixes the interval after which the several incumbents shall succeed one another. (Olivares v.
Villaluz, 57 SCRA 163)
Tenure represents the actual period during which the incumbent holds office. It may be
shorter than the term for reasons beyond the power of the incumbent (Nueno v. Angeles, 76 Phil.
12)
NOTE:
The replacement of a public officer who holds office at the pleasure of the appointing
power is regarded as termination through expiration of the term, not removal. (Astraquillo v.
Manglapus, 190 SCRA 280)

When does the term of office begin?

Table 5. SIMPLIFICATION OF THE RULES

It begins upon qualification.
It begins from date of appointment (in case of
appointment), or from the date of election (in
case of elective office).
When the law fixes the period within a chosen
officer may qualify for the once.
When no time is fixed by law.

OTHER RULES
1. When a law fixing the term of public is ambiguous.
The law that fixes the term at the shortest period should be followed.
2. When the Constitution or the law fixed both the term of office and the time of its
commencement or termination.
A person elected or appointed to fill a vacancy in such office shall hold the same only for
the unexpired portion of the term.
3. When only the duration of the term is fixed but no time is established for the beginning or
end of the term.
The person selected to fill the vacancy may serve the full term and not merely the unexpired
balance of the prior incumbent's term.
4. When an office is created, or an officer is appointed just to accomplish a specific purpose
or purposes.
The office terminates and the authority of the public officer ceases when said purpose or
purposes is/are accomplished.
 Page 19 of 30

B. RESIGNATION
Resignation is the "act of giving up or the act of an officer by which he declines his office
and renounces the further right to use it. It implies an expression of the incumbent in some form,
express or implied, of the intention to surrender, renounce, and relinquish the once and its
acceptance by competent and lawful authority." (Nacaytuna v. People, G.R. No. 171144, Nov. 24,
2006) It need not be in any particular form unless some form is prescribed by law. It may therefore
be in writing or by parol. However, in order that there could be a complete and expressive
resignation of public office, there must be:
(1) AN INTENTION TO RELINQUISH A PART OF THE TERM;
(2) AN ACCOMPANYING ACT OF RELINQUISHMENT (Martin, citing state v.
Augustine, 113 MO. 21, 20 S.W 651, 35, A.S.R. 696; state v. Allen, 21 Ind. 516, 83); and
(3) RESIGNATION MUST BE ACCEPTED BY PROPER AUTHORITY. (Sangguniang
Bayan of San Andres, Catanduanes v. Court of Appeals, G.R. No. 118883, Jan. 16, 1998)
NOTE:
Resignation is effective when the public officer receives notice of the acceptance of his
resignation, not on the date of the letter or notice of acceptance.

Can resignation be withdrawn?

1. It cannot be withdrawn in the following instances:
An unconditional resignation which takes immediate effect and has been transmitted to the
power authorized to accept it cannot be withdrawn even with the consent of the officer with whom
it is filed;
An unconditional resignation which will take effect in the future cannot be withdrawn if it
has been duly accepted by the proper authority, although the time at which it is to take effect has
not arrived.
2. Before a prospective resignation is accepted, it may be withdrawn even if it is
unconditional, if the accepting authority consents and if no new rights have intervened. (State
v. Augustine, supra)

Can resignation be repudiated?

Resignation can be repudiated in the following instances:
1. When it has been transmitted without the consent of the public officer;
2. When it was procured by fraud or by duress.

C. RECALL
It is a mode of terminating official relationship prior to the expiration of the term of a public
officer on account of loss of confidence. Recall can be Initiated either by:
(1) a preparatory recall assembly; or
 Page 20 of 30

(2) by the registered voters of the local government unit.

What is the composition of the Preparatory Recall Assembly?
It is composed of the following:
a) Provincial level — All Mayors, Vice Mayors and Sangguniang Members of the
municipalities and component cities.
b) City level — All Punong Barangay and Sangguniang Barangay Members in the city.
c) Legislative District level — Where Sangguniang Panlalawigan Members are elected by
district, all elective municipal officials in the district; and in cases where Sangguniang
Panlungsod Members are elected by district, all elective barangay officials in the district.
d) Municipal level — All Punong Barangay and Sangguniang Barangay Members in the
municipality.

What is the procedure for initiating recall by a preparatory recall assembly?

1. A majority of all the preparatory recall assembly members may convene in session in a
public place and initiate a recall proceeding against any elective official in the local
government unit concerned.
2. Recall of provincial, city or municipal officials shall be validly initiated through a
resolution adopted by a majority of all the members of the preparatory recall assembly
concerned during its session called for the purpose.
What is the procedure for initiating recall by registered voters?
1. Recall of a provincial, city, municipal, or barangay official may also be validly initiated
upon petition by at least 25% of the total number of registered voters in the local
government unit concerned during the election in which the local official sought to be
recalled was elected.
2. A written petition for recall duly signed before the election registrar or his representative,
and in the presence of a representative of the petitioner and representative of the official
sought to be recalled, and in public place in the province, city, municipality or barangay,
as the case may be, shall be filed with the Comelec through its office in the local
government unit concerned. The Comelec or its duly authorized representative shall cause
the publication of the petition in a public and conspicuous place for a period of not less
than 10 days nor more than 20 days. for the purpose of verifying the authenticity and
genuineness of the petition and the required percentage of voters.
3. Upon the lapse of the aforesaid period, the Comelec or its duly authorized representative
shall announce the acceptance of candidates to the position and thereafter prepare the list
of candidates which shall include the name of the official sought to be recalled.
 Page 21 of 30

PROCEDURE AFTER SAID RESOLUTION OR PETITION FOR RECALL IS FILED

WITH THE COMELEC
1. The Comelec shall set the date for the election on recall which shall not be later than 30
days after the filing of the same (in the case of the barangay, city or municipal officials),
and 45 days (in case of provincial officials).
2. The official or officials sought to be recalled shall automatically be considered as duly
registered candidate or candidates to the pertinent positions and, like other candidates, shall
be entitled to be voted upon. (Sec. 71, R.A. No. 7160)
NOTE:
Recall of an elective local official effective is effective upon the election and proclamation
of a successor in the person of the candidate receiving the highest number of votes cast during the
election on recall. (Sec. 72, R.A. No. 7160)

LIMITATIONS ON RECALL
1. An elective local official cannot be the subject of a recall election at any time during his
term of office. He can be the subject of recall election only once during his term of office
for loss of confidence.
2. No recall shall take place within one year from the date of the official's assumption to office
or one year immediately preceding a regular local election.
NOTE:
The said limitations are not applicable to the SK election

D. REMOVAL
Officer or employee of the civil service can only be removed or suspended for cause
provided by law (Sec. 2[3] Art. IX-B,1987 Constitution) and in accordance with the procedure
required by law.
NOTE:
1. OMNIBUS RULES ON APPOINTMENTS AND OTHER HUMAN RESOURCE
ACTIONS (REVISED RULE 2018)
2. 2017 RULES ON ADMINISTRATIVE CASES IN THE CIVIL SERVICE 2017
(RACCS)

EFFECT OF REMOVAL WITHOUT JUST CAUSE

It is a reversible error and the officer or employee unlawfully removed shall be entitled to
reinstatement with back salaries and without loss of seniority rights. He is considered as not having
left his office and he is therefore entitled to all the rights and privileges that accrue to him.
(Cristobal v. Melchor, 101 SCRA 857)
 Page 22 of 30

INSTANCES WHERE AN ACT IS CONSIDERED AS REMOVAL EVEN IF AN

EMPLOYEE IS NOT REMOVED
1. When he is demoted and no cause is shown to justify the same; (Floreza v. Ongpin, 182
SCRA 692)
2. When there is unconsented transfer;
3. When the employee is being transferred to lure him away from his permanent position, and
it is done without his consent.

PREVENTIVE SUSPENSION
It is a disciplinary measure which is intended to enable the disciplinary authority to
investigate charges against the respondent by preventing the latter from using his position or office
to influence witnesses, to intimidate them, or to tamper with the records which may be vital in the
prosecution of the case against him.

What is the duration of the preventive suspension?

If the investigation is not finished and the decision is not rendered within a period of 90
days, the suspension will be lifted and the respondent will be automatically reinstated with full pay
for the period of suspension. In the event his conviction is affirmed the period of suspension
becomes part of the first penalty of suspension or dismissal.
NOTE:
Preventive suspension is not a penalty but merely a preventive measure, a preliminary step
in an administrative investigation. The period served should not be considered part of the actual
penalty of suspension. (Quimbo v. Gervacio, G.R. No. 155620, Aug. 9, 2005)
It is the suspension which is considered as penalty.

E. REACHING AGE LIMIT

What is the compulsory retirement age for appointive government officers and employees?
Members of the judiciary 70 years
Other government officers and employees 65 years

Government officers and employees are allowed to retire before reaching compulsory
retirement age under R.A. No. 1616. Provided an officer has rendered a minimum number of years
of government service.

Can extension of service of members of the judiciary be allowed?

Yes, especially in the case of one who has served with competence, integrity and dedication
to public service. (In Re: Gregorio Pineda, 187 SCRA 469)
 Page 23 of 30

F. ABANDONMENT
It is a cause for terminating public office indicated by the action of the incumbent in
voluntarily surrendering it to another under a mistaken belief that the latter has been elected as his
rightful successor, or even by the acquiescing on his own removal. In order to constitute an
abandonment of office, it must be total, and under such circumstances as to clearly indicate an
absolute relinquishment. When once abandoned, the former incumbent cannot legally repossesses
the office even if by forcible re-occupancy. (Martin citing State u Jones, 19 Ind. 356, 81 A.m. Dec.
403)
There must be clear proof of deliberate and unjustified intent to sever the employer-
employee relationship. (Batangas State University v. Bonifacio, G.R. No. 167762, Dec. 15, 2005)

Table 6. Distinguish abandonment from resignation

Abandonment — There is a clear proof of Resignation in general is a formal
deliberate and unjustified intent to sever the relinquishment.
employer-employee relationship.

G. PRESCRIPTION OF RIGHT TO OFFICE

It is a mode of terminating official relationship caused by a public officer who has not been
the subject of illegal ouster or dismissal. A petitioner for reinstatement or for recovery of a public
office must be instituted within one year from the date the petitioner is unlawfully ousted from his
office.
The rationale behind the one year requirement within which to file a petition for
reinstatement is that the interest of public welfare requires that the right or title to public office
should not be left hanging and uncertain.
NOTE:
The said one year requirement is not absolute. In one case, a petition was allowed by the
Supreme Court, nine years after the petitioner was dismissed from office on the ground of equity.

H. DEATH

A mode of terminating official relationship since when the public official dies, he
necessarily ceases to have a right to the office he holds, because he cannot, from that time, be able
to perform his duties and responsibilities.

I. IMPEACHMENT
In this jurisdiction, it could be defined as the extra-ordinary means of removing the
impeachable public officials mentioned in Art. XI, Sec 2, through a verified complaint filed by
any member of the House Representatives or by any citizen upon a resolution of endorsement any
 Page 24 of 30

member thereof, which complaint is tried by the Senate to decide whether any of the grounds
provided in Sec. 2 exist or judgment of impeachment will be rendered or not.
The officials removable by impeachment are the following:
1. The President
2. The Vice President
3. The Members of the Supreme Court
4. The Members of the Constitutional Commissions
5. The Ombudsman
Article XI, Sec 2 of the 1987 Constitution enumerates the grounds for impeachment and they
are as follows:
1. Culpable violation of the Constitution
2. Treason
3. Bribery
4. Graft and corruption
5. Other high crimes
6. Betrayal of public trust

J. FAILURE TO ASSUME ELECTIVE OFFICE

Besides the public official's eligibility for public office, he should, before entering into the
performance of the functions of a public office, take the oath of office within six months from his
proclamation (Sec. 11, B.P. Blg. 881)
If he fails or refuses to take his oath of office within the said period, the office shall be
considered vacant, unless said failure is for a cause or causes beyond his control.
During the time or in the meantime that the said official has not yet taken his oath of office,
the rightful occupant of the office is the holdover office. (Lecaroz v. Sandiganbayan, G.R. No.
130872, March 25, 1999)

K. ACCEPTANCE OF INCOMPATIBLE OFFICE

Offices are said to be incompatible when from the nature and relations to each other of the
two places, they ought not to be held by the same person, from the contrariety and antagonism
which would result in the attempt by one person to faithfully and impartially discharge the duties
of one, toward the incumbent of the other. (Mechem, Pub. Off., Sec. 422.)

Test of incompatibility
Incompatibility is recognized whenever one is subordinate to the other in some of its
important and principal duties, or is subject to supervision by the other, or where contrariety and
antagonism would result in the attempt by one person to discharge the duties of both. Under this
principle, two offices are incompatible where the incumbent of one has the power to remove the
 Page 25 of 30

incumbent of the other though the contingency on which the power may be exercised is remote,
and it also exists where the incumbent of one office has the power of appointments as to the other
office. (Martin citing Atty.-Gen. v. Detroit, 112 Mich. 145, 70 N. W. 450; Haymaker v. State [N.M.]
163 Pac. 248)
But in order that one office may be adjudged incompatible with another it must clearly
appear that the two offices actually exist as distinct positions and that the second is not merely an
ex officio extension of the duties of the incumbent of the first. (Martin citing Moore v. Nation, 80
Kan 672, 103 Pac. 197, 18 Am. Cas. 397)

Effect of holding incompatible offices

Acceptance of the second office incompatible with the first ipso facto vacates the latter. No
proceeding by quo warranto or otherwise, is necessary in order to declare or complete the vacation
of the first office. It may be at once filled again either by appointment or election as the law
provides. Even though the title to the second office fails, as where the election is void, the rule is
still the same.

L. ABOLITION OF OFFICE
Who has the power to abolish an office?
An office created by Congress may be abolished by it at any time and even while the office
is occupied by a duly elected or appointed incumbent.
REASON: There is no obligation on Congress or the people to continue a useless office
only for the benefit of the person who holds the office.
NOTE:
Constitutional offices cannot be abolished by Congress

REQUIREMENT TO ABOLISH OFFICE

1. The abolition must be made in good faith, and not for personal or political reasons. (De la
Llana v. Alba, 112 SCRA 294)
2. This is to be decided based on the facts of each case. (Dario v. Mison 176 SCRA 84) Fiscal
restraint and economy, for instance, was considered as a justification. (Ginson v.
Municipality of Murcia, 185 SCRA 1)

M. CONVICTION OF A CRIME
Conviction by final judgment automatically terminates official relationship. This arises
when the penalty imposed to a public officer carries with it the accessory penalty of
disqualification.
 Page 26 of 30

N. FILING OF CERTIFICATE OF CANDIDACY

It is a mode of terminating official relationship by express provision of Secs 66 and 67,
B.P Blg. 881, which provides as follows:
Sec. 66, B.P. 881 provides: "Any person holding a public office or position, including
active members of the Armed Forces of the Philippines, and officers and employees in government-
owned or controlled corporations, shall be considered ipso facto resigned from his office upon the
filing of his certificate of candidacy "
In PNOC Energy Development Corporation v. NLRC, GR No. 100947, May 31, 1993, it
was held that this section applies even to employees of government-owned or -controlled
corporations without an original charter. "
Sec. 67, B.P. 881 provides: "Any elective official, whether national or local, running for
any office other than the one which he is holding in a permanent capacity, except for President
and Vice President, shall be considered ipso facto resigned from his office upon the filing of his
certificate of candidacy.

XV. LIABILITY OF PUBLIC OFFICERS

Three-Fold Responsibility of Public Officers
A public officer is under a three-fold responsibility for violation of duty or for wrongful
act or omission:
1. Civil Liability: if the individual is damaged by such violation, the official shall, in some
cases, be held liable civilly to reimburse the injured party.
2. Criminal Liability: if the law has attached a penal sanction, the officer may be punished
criminally. The mere fact that an of officer is acting in an official capacity will not relieve
him from criminal liability.
3. Administrative Liability: such violation may also lead to imposition of fine, reprimand,
suspension or removal from office, as the case may be.

Liability of Ministerial Officers

a) Nonfeasance - Neglect or refusal to perform an act which is the officer's legal obligation
to perform.
b) Misfeasance — Failure to use that degree of care, skill: and diligence required in the
performance of official duty.
c) Malfeasance — The doing, through ignorance: inattention or malice: of an act which he
had no legal right to perform

Statutory Liability
a) Failure or neglect to perform official duty [Art. 32, Civil code];
b) Violating rights and liberties of private individuals [Art. 33, Civil Code];
 Page 27 of 30

c) Liability of peace officers for not rendering aid or protection to a person [Art. 34, Civil
Code], and the subsidiary liability of municipal corporations in such case;
d) Neglecting to perform a duty without just cause within (i) a period fixed by law or
regulation; or (ii) a reasonable period, it no period is fixed [Sec. 38(2), Chapter Book l,
Admin. Code).

Liability on Contracts
General Rule:
A public officer acting within the scope of his authority and in his official capacity is not
personally liable on contracts executed on behalf of the government.
Exceptions:
1. A public officer becomes personally liable on such contracts when:
2. the officer intended to render himself personally liable;
3. when he makes no mention of the public agency he serves; or
4. when he does not indicate that it is executed in an official capacity

Liability on Tort
A public official is not liable for damages for performing a duty required by law and absent
bad faith. [Mabutoi v. Pascua/, G.R. No. L60898 (1983)]
An officer who acts outside the scope of his jurisdiction and without authorization of law
may be amenable to personal liability in a civil suit. [Festejo v. Femando, G.R. No, L-5156 (1954}]

Liability of Superior Officers for Acts of Subordinate Officers

A head of a department or a superior officer shall not be civilly liable for the wrongful acts,
omissions of duty, negligence or misfeasance of his subordinates unless he has actually authorized
by written order the specific act or misconduct complained of [Sec. 38(3), Chapter 9, Book I,
Admin. Code].
Neither the principle of command responsibility (in military or structural dynamics) nor
the doctrine of respondeat superior (in quasi delicts) applies in this case. The negligence of the
subordinate cannot be ascribed to his superior in the absence of evidence of the latter's own
negligence [Reyes v. Rural Bank of San Miguel, G.R. No. 154499 (2004)]

Liability of Subordinate Officers

No subordinate officer or employee shall be civilly liable for acts done by him in good faith
in the performance of his duties. However, he shall be liable for willful or negligent acts done by
him which are contrary to law, morals, public policy and good customs even if he acted under
orders or instructions of his superiors. [Sec.39, Chapter 9, Book I, Admin. Code]
 Page 28 of 30

XVI. EIGHT OTHER ANCILLARY PRINCIPLES

1. Preference of appointment to new position

2. Can a person be compelled to accept an office?
3. Presidential power of appointment
4. Authority to determine the kind or nature of appointment
5. Revocation of appointment
6. Meaning of term qualification
7. Determination through competitive examination
8. Hold over rule

1.Preference for appointment to new position

Section 4 of R.A. No.6656 provides: Officers and employees holding permanent
appointment shall be given preference for appointment to the new positions in approved staffing
pattern comparable to their former positions or in case there are not enough comparable positions,
to positions next lower in rank. (Torio v. Civil Service Commission, G.R. No. 99336; Espanola
vs. Civil Service Commission, G.R. No. 100178)
The preference given to permanent employees assumes that employees working in a
Department for longer periods have gained not only superior skills but also greater dedication to
the public service.

2. Can a person be compelled to accept an office?

No. There is no law which can compel a person to accept an office except as may be
required under Sec. 4, Art. II of the 1987 Constitution, which provides as follows: “Section 4. The
prime duty of the Government is to serve and protect the people. The Government may call upon
the people to defend the State, and in the fulfillment thereof, all citizens may be required, under
conditions provided by law, to render personal military or civil service. “

3. Presidential power of appointment

a) The President shall nominate and, with the consent of the Commission on Appointments,
appoint the heads of the executive departments, ambassadors, other public ministers and
consuls, or officers of the armed forces from the rank of colonel or naval captain, and other
officers whose appointments are vested in him in this Constitution. He shall also appoint
all other officers of the Government whose appointments are not otherwise provided by
law and those he may be authorized by law to appoint. The Congress may, by law, vest the
appointment of the other officers lower in rank in the President alone, in the courts; or in
the heads of departments, agencies, commissions, or boards.
 Page 29 of 30

The President shall have the power to make appointment during the recess of the
Congress, whether voluntary or compulsory, but such appointments shall be effective only
until disapproval by the Commission on Appointments or until the next adjournment
of the Congress.
b) The spouse and relatives by consanguinity or affinity within the fourth civil degree of the
President shall not, during his tenure, be appointed as Members of the Constitutional
Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries,
chairmen or heads of bureaus or offices, including government-owned or controlled
corporations and their subsidiaries. (Section 13, Par. 2, Art. VII of the 1987 Constitution)
c) Two months immediately before the next presidential elections and up to the end of his
term, a President or Acting President shall not make appointments, except temporary
appointments to executive positions when continued vacancies therein will prejudice
public service or endanger public safety. (Section 15, Art. VII of the 1987 Constitution)
d) Appointments extended by an Acting President shall remain effective, unless revoked by
the elected President, within ninety days from his assumption or re-assumption of office.
(Section 14, Art. VII of the 1987 Constitution)
e) The appointees of the President must possess the required qualifications. The appointee
concerned may be questioned in appropriate court proceedings.

4. Authority to determine the kind or nature of appointment

The Civil Service Commission is not empowered to determine the kind or nature of the
appointment extended by the appointing power. What it can do is only either to approve or review
the appointment to see to it that the requirements of the Civil Service Commission are complied
with. When all the legal requirements are complied with and the appointee is qualified, what the
Civil Service Commission has to do is only to attest to the appointment. (Luego v. Civil Service
Commission, 143 SCRA 327)
In Lopez v. Civil Service Commission (G.R. 92140), the Supreme Court ruled that what
the Civil Service Commission may do is just to determine whether or not the appointee possesses
the qualifications and requisite eligibility. If the appointee is qualified and eligible, his appointment
is approved, and if not, his appointment is disapproved.

5. Revocation of Appointment by the Civil Service Commission

The Civil Service Commission has no authority to revoke an appointment simply because
it is believed that another is better qualified than the appointee for that would have constituted an
encroachment of the discretion vested solely in the appointing authority. The Commission cannot
exceed its power by substituting its will for that of the appointing authority (Lopez vs. Civil Service
Commission, G.R. No. 92140).
 Page 30 of 30

6. Term Qualification (already discussed)

7. Determination through competitive examination

Competitive examination defined, as an examination where candidates are ranked
according to their grades and/or percentile and then top rankers are selected. If the examination is
open for n positions, then the first n candidates in ranks pass, the others are rejected.

The following are exempted from the requirement of competitive examinations:

a) Policy-determining position – A position held by one whose duty is to formulate policies
and guidelines of the government.
b) Primarily confidential position – A position held by one in whom personal trust and
confidence is reposed by the appointing power.
c) Highly technical position – A position held by one possessing superior technical training.

8. Hold-over Rule
It is a rule which declares that in the absence of an express or implied constitutional or
statutory provision prohibiting hold-over, an officer is entitled to hold his office until his successor
is appointed and qualified. This rule prevents disruption of public service in the meantime that a
successor is not yet appointed and qualified to assume the functions of the office.