Case Digests

MAROHOMBASAR VS. ALONTO (1991)

The Law on Public Officers and Civil Service

Anniefair Ausan 2004-30770

Petitioner was designated as OIC of the Office of the Vice-Chancellor for Academic Affairs (OVCAA) if MSU in a concurrent capacity with her position then as VicePresident for External studies. The Office of the VP for Externals was merged with the OVCAA and, as such, the functions of the former were to be exercised by the latter. The petitioner was appointed as acting Vice-Chancellor for Academic Affairs on the same day. The Board of Regents of MSU approved her appointment as such. Afterwards, the President of MSU decided that he wants to tap the petitioners talent for the MSU system as VP for Academic Affairs which is under the administrative staff of the President. Petitioner declined because she has already started several projects as OVCAA which she wants to see through. The President designated another person for the position of OVCAA. Petitioner assails her removal as OVCAA. Held: It may be noted that the special order confirmed by the Board of Regents specifically designated the petitioner as Acting Vice-Chancellor for Academic Affairs. A bona fide appointment in an acting capacity is essentially temporary and revocable in character and the holder of such appointment may be removed anytime even without hearing or cause. A person who accepts an appointment in an acting capacity extended and received without any protest or reservation and who acts thereunder for a considerable time cannot later be heard to say that the appointment was, in reality, permanent and therefore there can be no removal except for cause.

replaced or absorbed the former office. Another result was the loss of her permanent status. The power to designate is vested in the MSU President. The designation must be less than one year. It must be reported to the Board of Regents at the next regular meeting. After the meeting, another designation must be issued if no permanent appointment was made. The earlier designation becomes void as the Board is expected to fill the item permanently, not merely leaving it temporarily occupied. On the other hand, the power to appoint is vested in the Board of Regents as follows: If the President merely designates, the Board of Regents does not confirm the designation. Since it is only for theinformation of the Board, the President's action should be merely "noted." When the Board of Regents confirmed the appointment of the petitioner on May 16, 1989, it was acting on an ad interim appointment effected by the President. No other interpretation can be validly made. If it was a mere designation, it needs no confirmation. The fact that confirmation was needed shows that it is an ad interim one. Anad interim appointment is one made during the time when the appointing or confirming body is not in session and there is an existing clear and present urgency caused by an impending obstruction or paralyzation of the functions assigned to the office if no immediate appointment is made. (Rodriguez, Jr. v. Quirino, 9 SCRA 284 [1963]) When the Vice-Presidency for External Studies was abolished and its functions were merged with the Vice-Chancellorship for Academic Affairs, both the security of tenure of the occupant and the needs of the new office called for the ad interim appointment. The respondent cannot use the device of an ambiguous designation to go around the security of tenure principle. Under the MSU Code, a designation requires a fixed period of not less than one year. The appointment given to the petitioner was indefinite. She would serve at the pleasure of the MSU President who is not even the head of the institution because the head is the Board of Regents. The intent to convert permanent items into temporary ones is apparent. The petitioner states that the purpose "is to hold the sword of Damocles hanging over the head of all MSU employees and officers." (Rollo, p. 75) The Board of Regents cooperated in the plan. Practically, all top officers below the President were converted into positions where the occupants serve at the pleasure of the President and presumably, the Board of Regents. Thus, at the May 16, 1989 Board of Regents' meeting at the Army and Navy Club alongside the Luneta in Manila, several acting appointments were submitted for approval or confirmation. The respondents argue that the permanent item of the petitioner is Professor VI. They state: xxx xxx xxx Finally, petitioner has not refuted the fact that the position she actually occupies is that of Professor VI. This is precisely the

There are circumstances, however, which rule against the routine or blind application of the principle which governs acting appointments to this case. The essence of an acting appointment is its temporary nature. It is a stop gap measure intended to fill an office for a limited time until a permanent appointment is extended or a new appointee is chosen. The nature of an acting appointment limits not only the claims of the appointee to a lengthy tenure but also defines the authority of the appointing power. A public officer appointed in an acting capacity cannot claim that the appointment shall in time ripen into a permanent one. However, neither can the appointing power use the principle of temporary appointments to evade or avoid the security of tenure principle in the Constitution and the Civil Service Law. This is similar to the rule that the head of an office cannot arbitrarily convert permanent positions to primarily confidential items so that he can more freely fire and hire or rehire subordinates at his personal discretion. It is the nature of the functions attached to a position, not the nomenclature or title given by the appointing authority which determines its primarily confidential nature. (Piero v. Hechanova, 18 SCRA 417 [1966]) For the same reason, the Court may inquire into the true nature of an "acting" appointment to determine whether or not it is used as a device to circumvent the security of tenure principle. In this case, the intent to make petitioner serve at the pleasure of the MSU President is obvious. The VP External Studies was merge with the OVCAA, and petitioner was appointed OVCAA. The effect, therefore, was to abolish the petitioners permanent office and give her a temporary appointment in the supposedly new office which

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reason why petitioner's designation as Acting VCAA can not be deemed a regular or permanent appointment because, if it were so, the anomalous situation of one permanently appointed to two public positions simultaneously would arise. (Rollo, p. 130) This argument has no merit. As early as 1963, this Court ruled in Tapales v. President and Board of Regents of the University of the Philippines(7 SCRA 553 [1963]) that UP Deans and Directors enjoy security of tenure and any attempt to remove them by limiting their terms of office from permanent to a five (5) year term is unconstitutional. Deans and Directors are selected from faculty members. An appointment as Professor is also needed for salary rating purposes but does not detract from the permanent nature of the administrative position (id., at pp. 554 and 556). The fact that Professor Tapales was given another appointment as Director of the U.P. Conservatory of Music does not mean that the second appointment is only temporary in nature. In the present case, the fact that Professor Marohombsar has a permanent appointment as Professor does not detract from the permanent nature of her present appointment as Vice-Chancellor, especially since the same was duly confirmed by the MSU Board of Regents. The only difference is that her position as Vice-Chancellor has a fixed term while that of Professor Tapales was until he retired or resigned.

Section 6. In order that the best qualified and most deserving persons shall be appointed in any reorganization, there shall be created a Placement Committee in each department or agency to assist the appointing authority in the judicious selection and placement of personnel. The Committee shall consist of two (2) members appointed by the head of the department or agency, a representative of the appointing authority, and two (2) members duly elected by the employees holding positions in the first and second levels of the career service: Provided, that if there is a registered employee association with a majority of the employees as members, that employee association shall also have a representative in the Committee: Provided, further, that immediately upon the approval of the staffing pattern of the department or agency concerned, such staffing pattern shall be made known to all officers and employees of the agency who shall be invited to apply for any of the positions authorized therein. Such application shall be considered by the committee in the placement and selection of personnel. (Emphasis ours). To "assist" means to lend an aid to, 11 or to contribute effort in the complete accomplishment of an ultimate purpose intended to be effected by those engaged. 12 In contrast, to "recommend" 13 is to present one's advice or choice as having one's approval or to represent or urge as advisable or expedient. It involves the idea that another has the final decision. Clearly, the Placement Committee was charged with the duty of exercising the same discretionary functions as the appointing authority in the judicious selection and placement of personnel when the law empowered it to "assist" the appointing authority. The same law also allows any officer or employee aggrieved by the appointments to file an appeal with the appointing authority who shall make a decision within thirty (30) days from the filing thereof. If the same employee is still not satisfied with the decision of the appointing authority, he may further appeal within ten (10) days from the receipt thereof to the CSC. 14 In the case at bar, the Circular dated October 2, 1987 of the Office of the President created the agency Reorganization Appeals Board to address the problem of employees affected by the reorganizations. The foregoing legal measures spell out the remedies of aggrieved parties which make it impossible to give the status of finality to any appointment until all protests or oppositions are duly heard. Thus, while it is true that the appointment paper received by petitioner Sinon on 30 August 1989 for the position of MAO had not conferred any permanent status and was still subject to the following conditions attached to any appointment in the civil service: "Provided that there is no pending administrative case against the appointee, no pending protest against the appointment, nor any decision by competent authority that will adversely affect the approval of the appointment." 15 Hence, for as long as the re-evaluation of the qualifications filed by Banan was pending, the petitioner cannot claim that he had been issued with a "complete" appointment. Neither is there any point in asserting that his appointment had "cured" whatever change was subsequently recommended by the DARAB. The fact that the DARAB is capable of re-evaluating the findings of the Placement Committee only to find that Sinon is not qualified should not be taken as a grave abuse of discretion.

SINON VS.. CSC (1992) A resolution issued during a reorganization of the Ministry of Agriculture and Food (MAF) by respondent Department of Agriculture reorganization Appeals Board (DARAB) revoked petitioner's permanent appointments as Municipal Agriculture Officer (MAO) and appointed, in his stead, private respondent Banan. The CSC affirmed the appointment of the DARAB. Prior to the reorganization, Banan was the incumbent Municipal Agricultural Officer (MAO) while petitioner occupied the position of Fisheries Extension Specialist (FES) II in the Bureau of Fisheries and Aquatic Resources (BFAR). However the reorganization of the MAF into the Department of Agriculture called for the evaluation of the employees for the 29 positinos of MAO. The list done by the Placement Committe includes the petitioner but not respondent Banan. Thus Banan filed an appeal with the DARAB for re-evaluation. His request was granted. In the ranking of the 29 employees, Banan replaced Sinon in the 29th position. However, Sinon received an appointment based on the first evaluation done. Banan filed a MR in which she pitted her qualifications agaisnt Sinon for the last slot inthe 29 available MAO positions. CSC granted the MR of Banan. According to the CSC, the decision of the RAB has the imprimatur of the Secreatary as compared to the findings of the Placement Committe whose functions are merely recommendatory. Held: With the reorganization of the MAF into the DA with Executive Order No. 116, it became imperative to "protect the security of tenure of Civil Service Officers and employees in the implementation of government reorganization". Thus, Congress passed Republic Act No. 6656. 10 It was under the same law of R.A. 6656 that the Placement Committee was created:

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Besides, in affirming the appointment of Banan as recommended by the DARAB and approved by the Secretary of Agriculture, the CSC is only being consistent with the law. Section 4 of R.A. 6656 mandates that officers and employees holding permanent appointments shall be given preference for appointment to the new positions in the approved staffing pattern comparable to their former positions. Also, the term incumbent officer and the privileges generally accorded to them would more aptly refer to Banan and not to petitioner Sinon whose appointment was never confirmed completely. 19 There is no dispute that the position of MAO in the old staffing pattern is most comparable to the MAO in the new staffing pattern. Finally, the Solicitor General in behalf of the CSC correctly noted that the petitioner Sinon had conveniently omitted the then Secretary of Agriculture who had affixed his approval on the findings of the DARAB. Petitioner Sinon knew fully well that as head of the agency. the Secretary of Agriculture was the appointing authority. CAMARINES SUR VS. CA (1995) Private respondent Tito Dato was appointed as Provate agent by the then governor of Camarines Sur He was subsequently promoted and was appointed Assistant Provincial Warden, but only on a temporary basis as he is not eligible. About two years after, the governor approved his change of status to a permanent one on his representation that he passed the Civil Service Exam for supervising secutiry guards. Said change, however, was not favorably acted upon by the CSC. The CSC reasoned that Dato did not possess the necessary civil service eligibility for his position. No other appointment was extended to him. Afterwards, he was indefinitely suspended after criminal charges were filed against him. Two years after the change of status was made, Rama, head of the Camarines Sur Unit of the Civil Service Commissino wrote to the governor a letter informing him that the status of Dato was changed from temporary to permanent because Dato passed the CS exam for supervising secutiry guards. The change of status was made to retroact to the date of release of the examination. Meanwhile, the SP deleted the name of Dato in the provinces plnatilla. Dato was subsequently acquitted of the charges against him. He requested for reinstatement and backwages. This was not acted upon. Thus, Dato instituted an action in court.

The foregoing is a clear arrogation of power properly belonging to the appointing authority. Time and again, the Court has defined the parameters within which the power of approval of appointments shall be exercised by the Civil Service Commission. In Luego v. Civil Service Commission, 9 the Court ruled that CSC has the power toapprove or disapprove an appointment set before it. It does not have the power to make the appointment itself or to direct the appointing authority to change the employment status of an employee. The CSC can only inquire into the eligibility of the person chosen to fill a position and if it finds the person qualified it must so attest. If not, the appointment must be disapproved. The duty of the CSC is to attest appointments 10 and after that function is discharged, its participation in the appointment process ceases. 11 In the case at bench, CSC should have ended its participation in the appointment of private respondent on January 1, 1974 when it confirmed the temporarystatus of the latter who lacked the proper civil service eligibility. When it issued the foregoing communication on March 19, 1976, it stepped on the toes of the appointing authority, thereby encroaching on the discretion vested solely upon the latter. Moreover, the Court is not prepared to accord said letter 12 any probative value, the same being merely a purported photocopy of the alleged letter, initialed and not even signed by the proper officer of the CSC. Based on the foregoing, private respondent Tito Dato, being merely a temporary employee, is not entitled to the relief he seeks, including his claim for backwages for the entire period of his suspension. GLORIA VS. DE GUZMAN (1995) Private respondents were employees of the Philippine Air Force College of Aeronautics (PAFCA). Under the decree creating it, the Board of Trustees is vested with the authority to appoint. The BOT issued a resolution stating that all falculty and admin employees are also subject to the required civil service eligibilities. Thus, the respondents in this case were only given temporary appointments. Private respondent Rosario V. Cerillo, specifically, was issued a one-year temporary appointment to the position of Board Secretary II of PAFCA. He was subsequently relieved as such by reason of loss of confidence. She was designated as coordinator for extension services Private respondents were subsequently removed from service.

Held: The primary question to be resolved in the instant case is whether or not private respondent Tito Dato was a permanent employee of petitioner Province of Camarines Sur at the time he was suspended. Private respondent does not dispute the fact that at the time he was appointed Assistant Provincial Warden on January 1, 1974, he had not yet qualified in an appropriate examination for the aforementioned position. Such lack of a civil service eligibility made his appointment temporary 4 and without a fixed and definite term and is dependent entirely upon the pleasure of the appointing power. 5 The fact that private respondent obtained civil service eligibility later on is of no moment as his having passed the supervising security guard examination, did notipso facto convert his temporary appointment into a permanent one. 6 In cases such as the one at bench, what is required is a new appointment since a permanent appointment is not a continuation of the temporary appointment these are two distinct acts of the appointing authority. 7 It is worthy to note that private respondent rests his case entirely on the letter dated March 19, 1976 communicated by Mr. Lope Rama to the Governor of Camarines Sur.

Held: The fact that private respondent Cerillo passed the requisite Civil Service Examination after the termination of her temporary appointment is no reason to compel petitioners to reappoint her. Acquisition of civil service eligibility is not the sole factor for reappointment. Still to be considered by the appointing authority are: performance, degree of education, work experience, training, seniority, and, more importantly, as in this case, whether or not the applicant enjoys the confidence and trust of the appointing power. As We said earlier, the position of Board Secretary II, by its nature, is primarily confidential, requiring as it does "not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which ensures freedom from misgivings of betrayals of personal trust or confidential matters of state." 8 In other words, the choice of an appointee from among those who possessed the required qualifications is a political and administrative decision calling for considerations of wisdom, convenience, utility and the interests of the service which can best be made by the Head of the office concerned. 9

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It cannot be overemphasized that the PSCA Board Resolution No. 91-026 must yield to the Civil Service Commission policies on the issuance of temporary appointments. When the Civil Service Commission directed that temporary appointments were to be effective only up to 1992, it did so in pursuance of the general purpose of the civil service law, as stated under Section 2 of Republic Act No. 2260, as amended, which is "to ensure and promote the constitutional mandate regarding appointments only according to merit and fitness and to provide within the public service a progressive system of personal administration to ensure the maintenance of an honest and efficient progressive and courteous civil service in the Philippines. 10 For that matter, it is vested with the function, among others, to promulgate policies, standards and guidelines for the civil service and adopt plans and programs to promote economical, efficient and effective personnel administration in the government. 11 We hold that reappointment to the position of Board Secretary II is an act which is discretionary on the part of the appointing power. Consequently, it cannot be the subject of an application for a writ of mandamus. Reinstatement is technically issuance of a new appointment which is essentially discretionary, to be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the qualifications required by law. 12 Such exercise of the discretionary power of appointment cannot be controlled, not even by the Court as long as it is exercised properly by the appointing authority. It is Our holding that the questioned order of reinstatement amounts to an undue interference by the Court in the exercise of the discretionary power of appointment vested in the PSCA Board of Trustees.Surprisingly, the Court a quo, while upholding the right of private respondent Cerillo to a reappointment, adhered to this pontification by stating that: The appointment of the petitioners to their former positions is not a matter of right; rather, it is a matter of discretion on the part of the respondents. Mandamus cannot be availed of to compel anyone to exercise his discretion absent any showing of grave abuse of discretion. The termination of the services of private respondents was proper and legal, it being the consequence of the Board of Trustees' power to appoint. The view of respondent Judge, however, is that there was no termination ordered. Either the employees' contracts lapsed or their temporary appointments were abrogated by circulars from the Civil Service Commission. This, as a necessary consequence of the transition from the Philippine Air Force College of Aeronautics (PAFCA) to the Philippine State College of Aeronautics (PSCA). We agree with respondent Judge's disquisition on this point: To the question was the termination of the services of the petitioners legal or not?, the only answer is there was not termination to speak of. Termination presupposes an overt act committed by a superior officer. There was none whatsoever in the case at bar. At most, Col. Julian (Loleng) gave notice to the petitioners of the expiration of their respective contracts, Petitioners appointment or employment simply expired either by its very own terms, or because it may not exceed one year, but

most importantly because the PAFCA was dissolved and replaced by the PSCA. The notice given by Col. Loleng to the petitioners seem to have been misunderstood by them as an act of dismissal which as they correctly state, belongs to the Board of Trustees alone.

MATIBAG VS. BENIPAYO (2002) Pres. Arroyo appointed as interim, Benipayo, as COMELEC Chairman, and Borra and Tuason as COMELEC Commissioners, each for a term of 7 years. Their appointment was not acted upon by the COA. After their terms have expired, Arroyo against appointed them for the same positions. Congress adjourned before the COA could act on their appointments. Thus, Arroyo renewed their ad interim appointments once again and submitted their appointments for confirmation with the COA. As Chairman of COMELEC, Benipayo issued a Memorandum addressed to petitioner reassigning his to the the Law dept. and designating cicno as OIC of EID (petitioners former position). Petitioner questions his reassignment and questions the capacity of Benipayo, Borra and Tuason to assume office. Held: Section 1 (2), Article IX-C of the Constitution, which provides as follows: The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last Members for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity. An ad interim appointment is a permanent appointment because it takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office. The fact that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. The Constitution itself makes an ad interimappointment permanent in character by making it effective until disapproved by the Commission on Appointments or until the next adjournment of Congress. The second paragraph of Section 16, Article VII of the Constitution provides as follows: The President shall have the power to make appointments 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. (Emphasis supplied) Thus, the ad interim appointment remains effective until such disapproval or next adjournment, signifying that it can no longer be withdrawn or revoked by the President. The fear that the President can withdraw or revoke at any time and for any reason an ad interim appointment is utterly without basis. More than half a century ago, this Court had already ruled that an ad interim appointment is permanent in character. InSummers vs. Ozaeta,[25] decided on October 25, 1948, we held that:

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x x x an ad interim appointment is one made in pursuance of paragraph (4), Section 10, Article VII of the Constitution, which provides that the President shall have the power to make appointments during the recess of the Congress, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. It is an appointment permanent in nature, and the circumstance that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. An ad interim appointment is disapproved certainly for a reason other than that its provisional period has expired. Said appointment is of course distinguishable from an acting appointment which is merely temporary, good until another permanent appointment is issued. (Emphasis supplied) The Constitution imposes no condition on the effectivity of an ad interim appointment, and thus an ad interimappointment takes effect immediately. The appointee can at once assume office and exercise, as a de jure officer, all the powers pertaining to the office. In Pacete vs. Secretary of the Commission on Appointments,[26] this Court elaborated on the nature of an ad interim appointment as follows: A distinction is thus made between the exercise of such presidential prerogative requiring confirmation by the Commission on Appointments when Congress is in session and when it is in recess. In the former, the President nominates, and only upon the consent of the Commission on Appointments may the person thus named assume office. It is not so with reference to ad interim appointments. It takes effect at once. The individual chosen may thus qualify and perform his function without loss of time. His title to such office is complete. In the language of the Constitution, the appointment is effective until disapproval by the Commission on Appointments or until the next adjournment of the Congress. Petitioner cites Blacks Law Dictionary which defines the term ad interim to mean in the meantime or for the time being. Hence, petitioner argues that an ad interim appointment is undoubtedly temporary in character. This argument is not new and was answered by this Court in Pamantasan ng Lungsod ng Maynila vs. Intermediate Appellate Court,[27] where we explained that: x x x From the arguments, it is easy to see why the petitioner should experience difficulty in understanding the situation. Private respondent had been extended several ad interim appointments which petitioner mistakenly understands as appointments temporary in nature. Perhaps, it is the literal translation of the word ad interim which creates such belief. The term is defined by Black to mean in the meantime or for the time being. Thus, an officer ad interim is one appointed to fill a vacancy, or to discharge the duties of the office during the absence or temporary incapacity of its regular incumbent (Blacks Law Dictionary, Revised Fourth Edition, 1978). But such is not the meaning nor the use intended in the context of Philippine law. In referring to Dr. Estebans appointments, the term is not descriptive of the nature of the appointments given to him. Rather, it is used to denote the manner in which said appointments were made, that is, done by the President of the Pamantasan in the meantime, while the Board of Regents, which is originally vested by the University Charter with the power of appointment, is unable to act. x x x. (Emphasis supplied) Thus, the term ad interim appointment, as used in letters of appointment signed by the President, means a permanent appointment made by the President in the meantime that Congress is in recess. It does not mean a temporary

appointment that can be withdrawn or revoked at any time. The term, although not found in the text of the Constitution, has acquired a definite legal meaning under Philippine jurisprudence. The Court had again occasion to explain the nature of an ad interim appointment in the more recent case of Marohombsar vs. Court of Appeals,[28] where the Court stated: We have already mentioned that an ad interim appointment is not descriptive of the nature of the appointment, that is, it is not indicative of whether the appointment is temporary or in an acting capacity, rather it denotes the manner in which the appointment was made. In the instant case, the appointment extended to private respondent by then MSU President Alonto, Jr. was issued without condition nor limitation as to tenure. The permanent status of private respondents appointment as Executive Assistant II was recognized and attested to by the Civil Service Commission Regional Office No. 12. Petitioners submission that private respondents ad interim appointment is synonymous with a temporary appointment which could be validly terminated at any time is clearly untenable. Ad interim appointments are permanent but their terms are only until the Board disapproves them. (Emphasis supplied) An ad interim appointee who has qualified and assumed office becomes at that moment a government employee and therefore part of the civil service. He enjoys the constitutional protection that [n]o officer or employee in the civil service shall be removed or suspended except for cause provided by law.[29] Thus, an ad interim appointment becomes complete and irrevocable once the appointee has qualified into office. The withdrawal or revocation of an ad interim appointment is possible only if it is communicated to the appointee before the moment he qualifies, and any withdrawal or revocation thereafter is tantamount to removal from office. [30] Once an appointee has qualified, he acquires a legal right to the office which is protected not only by statute but also by the Constitution. He can only be removed for cause, after notice and hearing, consistent with the requirements of due process. An ad interim appointment can be terminated for two causes specified in the Constitution. The first cause is the disapproval of his ad interim appointment by the Commission on Appointments. The second cause is the adjournment of Congress without the Commission on Appointments acting on his appointment. These two causes are resolutory conditions expressly imposed by the Constitution on all ad interim appointments. These resolutory conditions constitute, in effect, a Sword of Damocles over the heads of ad interim appointees. No one, however, can complain because it is the Constitution itself that places the Sword of Damocles over the heads of the ad interim appointees. While an ad interim appointment is permanent and irrevocable except as provided by law, an appointment or designation in a temporary or acting capacity can be withdrawn or revoked at the pleasure of the appointing power.[31] A temporary or acting appointee does not enjoy any security of tenure, no matter how briefly. This is the kind of appointment that the Constitution prohibits the President from making to the three independent constitutional commissions, including the COMELEC. Thus, in Brillantes vs. Yorac,[32] this Court struck down as unconstitutional the designation by then President Corazon Aquino of Associate Commissioner Haydee Yorac as Acting Chairperson of the COMELEC. This Court ruled that: A designation as Acting Chairman is by its very terms essentially temporary and therefore revocable at will. No cause need be established to justify its revocation. Assuming its validity, the designation of the

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respondent as Acting Chairman of the Commission on Elections may be withdrawn by the President of the Philippines at any time and for whatever reason she sees fit. It is doubtful if the respondent, having accepted such designation, will not be estopped from challenging its withdrawal. xxx The Constitution provides for many safeguards to the independence of the Commission on Elections, foremost among which is the security of tenure of its members. That guarantee is not available to the respondent as Acting Chairman of the Commission on Elections by designation of the President of the Philippines. Earlier, in Nacionalista Party vs. Bautista, a case decided under the 1935 Constitution, which did not have a provision prohibiting temporary or acting appointments to the COMELEC, this Court nevertheless declared unconstitutional the designation of the Solicitor General as acting member of the COMELEC. This Court ruled that the designation of an acting Commissioner would undermine the independence of the COMELEC and hence violate the Constitution. We declared then: It would be more in keeping with the intent, purpose and aim of the framers of the Constitution to appoint a permanentCommissioner than to designate one to act temporarily. (Emphasis supplied)
[33]

prolonged vacancies in government offices, including the three constitutional commissions. In his concurring opinion in Guevara vs. Inocentes,[38]decided under the 1935 Constitution, Justice Roberto Concepcion, Jr. explained the rationale behind ad interim appointments in this manner: Now, why is the lifetime of ad interim appointments so limited? Because, if they expired before the session of Congress,the evil sought to be avoided interruption in the discharge of essential functions may take place. Because the same evil would result if the appointments ceased to be effective during the session of Congress and before its adjournment. Upon the other hand, once Congress has adjourned, the evil aforementioned may easily be conjured by the issuance of otherad interim appointments or reappointments. Section 1 (2), Article IX-C of the Constitution, which provides as follows: The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last members for three years, without reappointment. There is no dispute that an ad interim appointee disapproved by the Commission on Appointments can no longer be extended a new appointment. The disapproval is a final decision of the Commission on Appointments in the exercise of its checking power on the appointing authority of the President. The disapproval is a decision on the merits, being a refusal by the Commission on Appointments to give its consent after deliberating on the qualifications of the appointee. Since the Constitution does not provide for any appeal from such decision, the disapproval is final and binding on the appointee as well as on the appointing power. In this instance, the President can no longer renew the appointment not because of the constitutional prohibition on reappointment, but because of a final decision by the Commission on Appointments to withhold its consent to the appointment. An ad interim appointment that is by-passed because of lack of time or failure of the Commission on Appointments to organize is another matter. A by-passed appointment is one that has not been finally acted upon on the merits by the Commission on Appointments at the close of the session of Congress. There is no final decision by the Commission on Appointments to give or withhold its consent to the appointment as required by the Constitution. Absent such decision, the President is free to renew the ad interim appointment of a by-passed appointee. This is recognized in Section 17 of the Rules of the Commission on Appointments, which provides as follows: Section 17. Unacted Nominations or Appointments Returned to the President. Nominations or appointments submitted by the President of the Philippines which are not finally acted upon at the close of the session of Congress shall be returned to the President and, unless new nominations or appointments are made, shall not again be considered by the Commission. (Emphasis supplied) Hence, under the Rules of the Commission on Appointments, a by-passed appointment can be considered again if the President renews the appointment.

In the instant case, the President did in fact appoint permanent Commissioners to fill the vacancies in the COMELEC, subject only to confirmation by the Commission on Appointments. Benipayo, Borra and Tuason were extended permanent appointments during the recess of Congress. They were not appointed or designated in a temporary or acting capacity, unlike Commissioner Haydee Yorac in Brillantes vs. Yorac[34] and Solicitor General Felix Bautista in Nacionalista Party vs. Bautista.[35] The ad interim appointments of Benipayo, Borra and Tuason are expressly allowed by the Constitution which authorizes the President, during the recess of Congress, to make appointments that take effect immediately. While the Constitution mandates that the COMELEC shall be independent[36], this provision should be harmonized with the Presidents power to extend ad interim appointments. To hold that the independence of the COMELEC requires the Commission on Appointments to first confirm ad interim appointees before the appointees can assume office will negate the Presidents power to make ad interim appointments. This is contrary to the rule on statutory construction to give meaning and effect to every provision of the law. It will also run counter to the clear intent of the framers of the Constitution. The original draft of Section 16, Article VII of the Constitution - on the nomination of officers subject to confirmation by the Commission on Appointments did not provide for ad interim appointments. The original intention of the framers of the Constitution was to do away with ad interim appointments because the plan was for Congress to remain in session throughout the year except for a brief 30-day compulsory recess. However, because of the need to avoid disruptions in essential government services, the framers of the Constitution thought it wise to reinstate the provisions of the 1935 Constitution on ad interim appointments. Clearly, the reinstatement in the present Constitution of the ad interim appointing power of the President was for the purpose of avoiding interruptions in vital government services that otherwise would result from

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It is well settled in this jurisdiction that the President can renew the ad interim appointments of by-passed appointees. Justice Roberto Concepcion, Jr. lucidly explained in his concurring opinion in Guevara vs. Inocentes[53] why bypassed ad interim appointees could be extended new appointments, thus: In short, an ad interim appointment ceases to be effective upon disapproval by the Commission, because the incumbent can not continue holding office over the positive objection of the Commission. It ceases, also, upon the next adjournment of the Congress, simply because the President may then issue new appointments - not because of implied disapproval of the Commission deduced from its inaction during the session of Congress, for, under the Constitution, the Commission may affect adversely the interim appointments only by action, never by omission. If the adjournment of Congress were an implied disapproval of ad interim appointments made prior thereto, then the President could no longer appoint those so by-passed by the Commission. But, the fact is that the President may reappoint them, thus clearly indicating that the reason for said termination of the ad interim appointments is not the disapproval thereof allegedly inferred from said omission of the Commission, but the circumstance that upon said adjournment of the Congress, the President is free to make ad interim appointments or reappointments. (Emphasis supplied) Guevara was decided under the 1935 Constitution from where the second paragraph of Section 16, Article VII of the present Constitution on ad interim appointments was lifted verbatim.[54] The jurisprudence under the 1935 Constitution governing ad interim appointments by the President is doubtless applicable to the present Constitution. The established practice under the present Constitution is that the President can renew the appointments of by-passed ad interim appointees. This is a continuation of the well-recognized practice under the 1935 Constitution, interrupted only by the 1973 Constitution which did not provide for a Commission on Appointments but vested sole appointing power in the President. The prohibition on reappointment in Section 1 (2), Article IX-C of the Constitution applies neither to disapproved nor by-passed ad interim appointments. A disapproved ad interim appointment cannot be revived by another ad interimappointment because the disapproval is final under Section 16, Article VII of the Constitution, and not because a reappointment is prohibited under Section 1 (2), Article IX-C of the Constitution. A by-passed ad interim appointment can be revived by a new ad interim appointment because there is no final disapproval under Section 16, Article VII of the Constitution, and such new appointment will not result in the appointee serving beyond the fixed term of seven years. Section 1 (2), Article IX-C of the Constitution provides that [t]he Chairman and the Commissioners shall be appointed x x x for a term of seven years without reappointment. (Emphasis supplied) There are four situations where this provision will apply. The first situation is where an ad interim appointee to the COMELEC, after confirmation by the Commission on Appointments, serves his full seven-year term. Such person cannot be reappointed to the COMELEC, whether as a member or as a chairman, because he will then be actually serving more than seven years. The second situation is where the appointee, after confirmation, serves a part of his term and then resigns before his seven-year term of office ends. Such person cannot be reappointed, whether as a member or as a chair, to a vacancy arising from retirement because a reappointment will result in the appointee also serving more than seven years. The third situation is where the appointee is confirmed to serve the unexpired term of someone who died or resigned, and the

appointee completes the unexpired term. Such person cannot be reappointed, whether as a member or chair, to a vacancy arising from retirement because a reappointment will result in the appointee also serving more than seven years. The fourth situation is where the appointee has previously served a term of less than seven years, and a vacancy arises from death or resignation. Even if it will not result in his serving more than seven years, a reappointment of such person to serve an unexpired term is also prohibited because his situation will be similar to those appointed under the second sentence of Section 1 (2), Article IX-C of the Constitution. This provision refers to the first appointees under the Constitution whose terms of office are less than seven years, but are barred from ever being reappointed under any situation. Not one of these four situations applies to the case of Benipayo, Borra or Tuason. To foreclose this interpretation, the phrase without reappointment appears twice in Section 1 (2), Article IX-C of the present Constitution. The first phrase prohibits reappointment of any person previously appointed for a term of seven years. The second phrase prohibits reappointment of any person previously appointed for a term of five or three years pursuant to the first set of appointees under the Constitution. In either case, it does not matter if the person previously appointed completes his term of office for the intention is to prohibit any reappointment of any kind. However, an ad interim appointment that has lapsed by inaction of the Commission on Appointments does not constitute a term of office. The period from the time the ad interim appointment is made to the time it lapses is neither a fixed term nor an unexpired term. To hold otherwise would mean that the President by his unilateral action could start and complete the running of a term of office in the COMELEC without the consent of the Commission on Appointments. This interpretation renders inutile the confirming power of the Commission on Appointments. The phrase without reappointment applies only to one who has been appointed by the President and confirmed by the Commission on Appointments, whether or not such person completes his term of office. There must be a confirmation by the Commission on Appointments of the previous appointment before the prohibition on reappointment can apply. To hold otherwise will lead to absurdities and negate the Presidents power to make ad interim appointments. ERASMO VS. HOME INSURANCE AND GUARANTY CORP.(2002) Petitioner started working with respondent in 1982 and held various positions therein. The nature of her appointment was promotion and her employment status was temporary since the position is a Career Executive Service office (CESO) and petitioner lacks the required CES eligibility. Petitioner was then charged with 1) neglect of duty, 2) incompetence in the performance of official duties and 3) conduct prejudicial to the best interest of the service and 4) directly or indirectly having financial and material interest in any transaction requiring the approval of her office. In the meantime, petitioner appealed the status of he temporary appointment to the CSC. The CSC ruled against her stating that even if she possesses eligibility, the appointment still cannot be considered permanent unless an appointment to the rank has been granted by the President of the Philippines.

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She was subsequently terminated from service. She is now asking for reinstatement and backwages because of an opinion of the executive Director of the Carrer Service Board which said that an administrative case does not automatically revoke the appointment nor does it affect the validity of the termporary appointment, and that for the termination to be effective, there must be a categorical and/or positive act of termination of service. Held: The facts of this case indubitably show that petitioners promotional appointment as Vice-President of TS/GCIG is merely temporary in nature. Her appointment papers dated June 11, 1992 clearly indicate it.[21]This is because petitioner does not possess a career executive service eligibility which is necessary for the position of Vice-President of TS/GCIG, it being a career service executive office. Her new appointment, being temporary in character, was terminable at the pleasure of the appointing power with or without a cause,[22] and petitioner does not enjoy security of tenure. (cites Matibag vs. Benipayo citing Achacoso vs. Macaraig: it is settled that a permanent appointment can be issued only to ta person who meets all the requirements for the position to which he is being appointed, including the appropriated eligibility prescribed. The mere fact that the position belongs to the career service does not automatically confer security of tenure on its occupant even if he does not possess the required qualification. Such right is dependent on the nature of the appointment, which in turn depends on his eligibility or lack of it. A person who does not have the requisite qualifications for the position cannot be appointed to it in the first place, or as an exception to the rule, may be appointed to it merely in an acting capacity in the absence of appropriate eligibles. The appointment extended to him cannot be regarded as permanent even if it may be so designated ) PADILLA VS. CSC (2003) Petitioner Padilla assumed the permanent position of Clerk II in the Ministry of Labor and Employment. She was promoted to the position of Labor Department Assistant. Without waiting for the CSC approval, she assumed office. Her appointment was denied for her failure to meet the requirements for the position. She subsequently resigned from the service citing personal reasons. Petitioner then took the Career Service Examination and passed the same. She reapplied at the DOLE. She was offered the position of Casual Research Assistant and then afterwards, Casual Technical. Due to the implementation of RA 6758, kown as the Salary Standardization Act of 1989, casual items such as the position of the petitioner were abolished. She was offered the position of Clerk II but she decined. She became Casual Clerk III. After her conversion of petitioner as such, she was no longer given any position. She then requested monetary conversion of her unused sick and vacation leaves which DOLE granted. She is now contesting her termination.

demand from respondent DOLE her reinstatement to a permanent position under Section 24 (d) of PD 807 inasmuch as she was never unjustly removed. We agree with the observation of the OSG that when petitioner re-applied for and was offered the position of Casual Research Assistant and later Casual Technical, she readily and unqualifiedly accepted the said offer. Having accepted the position of a casual employee, petitioner should have known that she had no security of tenure and could thus be separated from the service anytime. We also take note of the fact that in December 1989, after finishing her contract as a Casual Technical, respondent DOLE offered to petitioner the permanent position of Clerk II (the only available permanent position then) for which the Selection Board deemed her qualified. However, she declined the offer and instead opted to accept another casual position as Casual Clerk III. Respondent DOLE therefore gave her the opportunity to re-assume a permanent position but petitioner was apparently bent on acquiring a position equal to a Labor Development Assistant, a position she could not obtain by right due to her earlier resignation. On the ground of estoppel, petitioner is barred from asserting her right to a permanent position. Not having been unjustly removed from the service, it follows that petitioners right to due process was not violated. In fact, there was no need to furnish her a notice of termination since, as a casual employee, petitioner was aware of the date of expiration of her temporary appointment. CSC VS. DELA CRUZ (2004) Respondent Saturnino is an employee of the Air Transportation Office, DOTC, presently holding the position of chief Aviation Safety Regulation Officer of the Aviation Safety Division. His promotion to said position was duly attested to by the CSC. Calamba filed a complaint with regards to the appointment of respondent claiming that the respondent did not meet the four-year supervisory requirement for said position. This was declined. Upon appeal, however, the CSC-NCR upheld the protest of Calamba. The CA, on the other hand, ruled in favor Saturnino. Petitioner contends that the appellate court erred in approving respondents appointment as Chief Aviation Safety Regulation Officer despite his failure to meet the minimum four-year managerial and supervisory qualification for the position. It further contends that respondents completion of the required experience during the pendency of the present case cannot be counted in his favor because compliance with the prescribed mandatory requirements should be as of the date of issuance of the appointment and not the date of approval by the CSC or the resolution of the protest against the appointment. Held: As noted by the CSC-NCR,[6] the contested position required four years of work experience in managerial position(s) per the Qualification Standards Manual prescribed by MC No. 46, s. 1993 and/or four years of experience in planning, organizing, directing, coordinating and supervising the enforcement of air safety laws, rules and regulations pertaining to licensing, rating and checking of all airmen and mechanics and regulation of the activities of flying schools per the above-stated ATO-DOTC Qualification Standards. Petitioners insistence that respondent failed to meet the four-year managerial and supervisory experience requirement is misplaced. It is a well-settled

Held: Petitioner used to occupy the permanent position of Clerk II before the disapproval of her appointment for Labor Development Assistant, a higher permanent position. Thereafter, she voluntarily resigned and later came back to occupy casual positions only despite passing the eligibility requirement for a permanent position. Like removal for just cause, voluntary resignation results in the abdication of all present and future rights accorded to an employee and in the severance of all work-related ties between the employer and the employee. When she returned to work for respondent DOLE, the same was not a continuation of her previous service but the start of a new work slate. Petitioner could not therefore

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rule in statutory construction that the use of the term and/or means that the word and and the word or are to be used interchangeably.[7] The word or is a disjunctive term signifying dissociation and independence of one thing from another. [8] Thus, the use of the disjunctive term or in this controversy connotes that either the standard in the first clause or that in the second clause may be applied in determining whether a prospective applicant for the position under question may qualify. Respondent would indeed lack the required years of work experience to qualify for the contested position if the managerial standards in the first clause above were to be strictly followed. At the time of his permanent appointment on November 28, 1994 as Chief Aviation Safety Regulation Officer, respondent had a little over one year of managerial experience from his designation as Acting Chief of the Aviation Safety Division during the latter part of 1993. However, the work already rendered by respondent in the ATO at the time of his appointment was well within the supervisory standard in the second clause. Planning, organizing, directing, coordinating and supervising the enforcement of air safety laws, rules and regulations pertaining to licensing, rating and checking of all airmen and mechanics and regulation of the activities of flying schools were part of the work performed by respondent for more than 13 years prior to his appointment. Before respondent was appointed to the contested position, he had held several other positions in the ATO These positions, spanning more than 13 years, in four of the five sections of the Aviation Safety Division of the ATO definitely met the minimum supervisory experience required of respondent for the position. In Rapisora vs. Civil Service Commission,[10] this Court held that the rule that appointees must possess the prescribed mandatory requirements cannot be so strictly interpreted as to curtail an agencys discretionary power to appoint, as long as the appointee possesses other qualifications required by law. The appellate court was therefore correct in setting aside the assailed CSC resolutions and considering the respondents total work experience as sufficient to meet the supervisory standards under the second clause, thereby finding respondent qualified for appointment to the contested position. Second, respondents promotional appointment was issued in accordance with petitioners selection process. Respondent passed the rigid screening of the ATO Personnel Selection/Promotion Board as well as the oral and written examinations of the DOTC Selection Board. respondents multifarious experiences and trainings[12] in air transportation were taken into account when he was chosen for the subject position. Respondent not only showed a continuing interest to improve his expertise in the field of air transportation, he also acquired an Airline Transport Pilots License in 1998. [13] As a privileged holder of such license, respondent exercised administrative supervision and control over pilots, cabin and crew members to ensure compliance with air safety laws, rules and regulations. In addition, respondents dedication to the service was demonstrated by his conceptualization and establishment of the Airport Crash Rescue Organization (ACRO) procedure in various national airports in the country to ensure the security of both airport personnel and passengers. Respondent also organized the Air Transportation Office Operations Center which now provides air service assistance on a 24-hour basis.

Because of respondents commendable performance, he was designated Chief of the Air Transportation Office Operations Center in 1993 per Office Order No. 178[14] 93, in addition to his duties as Check Pilot II. He was also designated Acting Chief, Aviation Safety Division, of the ATO per Office Order No. 211-93.[15] In Teologo vs. Civil Service Commission,[16] the Supreme Court ruled: Promotions in the Civil Service should always be made on the basis of qualifications, including occupational competence, moral character, devotion to duty, and, not least important, loyalty to the service. The last trait should always be given appropriate weight, to reward the civil servant who has chosen to make his employment in the Government a lifetime career in which he can expect advancement through the years for work well done. Political patronage should not be necessary. His record alone should be sufficient assurance that when a higher position becomes vacant, he shall be seriously considered for the promotion and, if warranted, preferred to less devoted aspirants. As stated by ATO Executive Director Manuel Gilo in his letter to CSC-NCR Director Nelson Acebedo, a proven excellent performance of a person is better than just experience by occupying a position but lacks dedication to duty, strong leadership and technical know-how.[17] It is elementary in the law of public officers that the power to appoint is in essence discretionary on the part of the proper authority. In Salles vs. Francisco, et al.,[18] we had occasion to rule that, in the appointment or promotion of employees, the appointing authority considers not only their civil service eligibilities but also their performance, education, work experience, trainings and seminars attended, agency examinations and seniority. Consequently, the appointing authority has the right of choice which he may exercise freely according to his best judgment, deciding for himself who is best qualified among those who have the necessary qualifications and eligibilities. The final choice of the appointing authority should be respected and left undisturbed. Judges should not substitute their judgment for that of the appointing authority. We, however, agree with petitioner that the reckoning point in determining the qualifications of an appointee is the date of issuance of the appointment and not the date of its approval by the CSC or the date of resolution of the protest against it. We need not rule on petitioners assertion that respondents subsequent compliance with the experience standards during the pendency of the case should not be counted in his favor since respondent was anyway qualified for the position at the time of his appointment. But even assuming for the sake of argument that respondent failed to meet the experience requirement to qualify for the contested position, we are still inclined to uphold the appellate courts approval of respondents appointment. Petitioner itself has, on several occasions, allowed the appointment of personnel who were initially lacking in experience but subsequently obtained the same. In Civil Service Commission Resolution No. 97-0191 dated January 9, 1997, it ruled thus: A careful evaluation of the qualifications of Josue reveals that he meets the education, training and eligibility requirements of the position. Considering that Josue has already in his favor three (3) years and eight (8) months experience as Senior Inspector up to the present, he has substantially satisfied the four (4) years experience required for the appointment as Chief Inspector.

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Following petitioners line of reasoning, respondent is deemed to have satisfactorily complied with the experience requirement for the contested position when he was designated Chief of the ATO Operations Center and Acting Chief of the ATO Aviation Safety Division. Having held said positions from 1993 to the present, respondent may be considered to have acquired the necessary experience for the position.

temporary appointee accepts the position with the condition that he shall surrender the office when called upon to do so by the appointing authority. Under Section 27 (2), Chapter 5, Subtitle A, Title I, Book V of the same Code, the term of a temporary appointment shall be 12 months, unless sooner terminated by the appointing authority. Such pre-termination of a temporary appointment may be with or without cause as the appointee serves merely at the pleasure of the appointing power.6 Under the Revised Qualifications Standards prescribed by the CSC, career executive service eligibility is a necessary qualification for the position of director III in Plans and Policy Services, OMA. It is not disputed that on September 25, 2000, when respondent was extended an appointment, he was not eligible to the position, not being a holder of such eligibility. Hence, his appointment was properly designated as "temporary." Then on October 31, 2000, newly-appointed OMA Executive Director Tomawis recalled respondents temporary appointment and replaced him by appointing Alongan Sani. It turned out, however, that Sani is not likewise qualified for the post. A game of musical chairs then followed. Sani was subsequently replaced by Tapa Umal, who in turn, was succeeded by Camad Edres, and later, was replaced by Ismael Amod. All these appointees were also disqualified for lack of the required eligibility XwL1Cglql. The Court of Appeals ruled that such replacements are not valid as the persons who replaced respondent are not also eligible. Also, since he was replaced without just cause, he is entitled to serve the remaining term of his 12-month term with salaries. This Court has ruled that where a non-eligible holds a temporary appointment, his replacement by another non-eligible is not prohibited.7 Moreover, in Achacoso8 cited earlier, this Court held that when a temporary appointee is required to relinquish his office, he is being separated precisely because his term has expired. Thus, reinstatement will not lie in favor of respondent. Starkly put, with the expiration of his term upon his replacement, there is no longer any remaining term to be served. Consequently, he can no longer be reinstated. As to whether respondent is entitled to back salaries, it is not disputed that he was paid his salary during the entire twelve-month period in spite of the fact that he served only from September 25, 2000 to October 31, 2000, or for only one month and six days. Clearly, he was overpaid. BAUTISTA VS. SALONGA (1989) WON the appointment by the President of the Chairman of the CHR, an independent office created by the 1987 Constitution, is to be made with or without the confirmation of the Commission on Appointments. The President designated petitioner Bautista as Acting Chairman of CHR. She was subsequently extended permanent appointment as Chairman of CHR. After taking her oath of office, the COA requested that she submit to the Commission certain information and documents required by its rules in connection with the confirmation of her appointments. Petitioner wrote to the Chairman of the Commissino on Appointments stating, for the reasons given, why she considered the Commission on Appointments as having no jurisdiction to review her appointment. Her appointment was denied by the COA. The President then designated Mallillin as acting chairman while the controversy is pending. Held: Sec. 16, Art. VII of the 1987 Constitution which provides:

CSC VS. DARANGINA(2007) Engr. Darangina was a development management officer V in the Office of Muslim Affairs (OMA). He was extended a temporary promotional appointment as Director III, Plans and Policy Services in the same office. The CSC approved the termporary appointment. The newly appointed OMA Executive Director terminated the temporary appointment of respondent on the ground that he is not a career service eligible. The ExecDir appointed another person who is also not career service eligible, and thus, the CSC disapproved his appointment. The CSC also issued a resolution sustaining the termination of his temporary appointment but ordering the payment of his salaries from the time he was appointed until his separation. This was later modified, directing the OMA to pay respondent up to the time of the expiration of his temporary appointment. Respondent also insists for his reinstatement as director III. Held: Section 27, Chapter 5, Subtitle A, Title I, Book V of the Administrative Code of 1987, as amended, classifying the appointment status of public officers and employees in the career service, reads: SEC. 27. Employment Status. Appointment in the career service shall be permanent or temporary. (1) Permanent status. A permanent appointment shall be issued to a person who meets all the requirements for the position to which he is being appointed, including appropriate eligibility prescribed, in accordance with the provisions of law, rules and standards promulgated in pursuance thereof. (2) Temporary appointment. In the absence of appropriate eligibles and it becomes necessary in the public interest to fill a vacancy, a temporary appointment shall be issued to a person who meets all the requirements for the position to which he is being appointed except the appropriate civil service eligibility: Provided, That such temporary appointment shall not exceed twelve months, but the appointee may be replaced sooner if a qualified civil service eligible becomes available. It is clear that a permanent appointment can issue only to a person who possesses all the requirements for the position to which he is being appointed, including the appropriate eligibility.3 Differently stated, as a rule, no person may be appointed to a public office unless he or she possesses the requisite qualifications. The exception to the rule is where, in the absence of appropriate eligibles, he or she may be appointed to it merely in a temporary capacity. Such a temporary appointment is not made for the benefit of the appointee. Rather, an acting or temporary appointment seeks to prevent a hiatus in the discharge of official functions by authorizing a person to discharge the same pending the selection of a permanent appointee.4 In Cuadra v. Cordova,5 this Court defined a temporary appointment as "one made in an acting capacity, the essence of which lies in its temporary character and its terminability at pleasure by the appointing power." Thus, the

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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 for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of the departments, agencies, commissions or boards. The President shall have the power to make appointments 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. Since the position of Chairman of the Commission on Human Rights is not among the positions mentioned in the first sentence of Sec. 16, Art. VII of the 1987 Constitution, appointments to which are to be made with the confirmation of the Commission on Appointments, it follows that the appointment by the President of the Chairman of the (CHR), is to be made without the review or participation of the Commission on Appointments. To be more precise, the appointment of the Chairman and Members of the Commission on Human Rights is not specifically provided for in the Constitution itself, unlike the Chairmen and Members of the Civil Service Commission, the Commission on Elections and the Commission on Audit, whose appointments are expressly vested by the Constitution in the President with the consent of the Commission on Appointments. 2 The President appoints the Chairman and Members of the Commission on Human Rights pursuant to the second sentence in Section 16, Art. VII, that is, without the confirmation of the Commission on Appointments because they are among the officers of government "whom he (the President) may be authorized by law to appoint." And Section 2(c), Executive Order No. 163, 5 May 1987, authorizes the President to appoint the Chairman and Members of the Commission on Human Rights. It provides: (c) The Chairman and the Members of the Commission on Human Rights shall be appointed by the President for a term of seven years without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. The above conclusions appear to be plainly evident and, therefore, irresistible. However, the presence in this case of certain elements absent in the Mison case makes necessary a closer scrutiny. The facts are therefore essential. The threshold question that has really come to the fore is whether the President, subsequent to her act of 17 December 1988, and after petitioner Bautista had qualified for the office to which she had been appointed, by taking the oath of office

and actually assuming and discharging the functions and duties thereof, could extend another appointment to the petitioner on 14 January 1989, an "ad interim appointment" as termed by the respondent Commission on Appointments or any other kind of appointment to the same office of Chairman of the Commission on Human Rights that called for confirmation by the Commission on Appointments. (NO) When Her Excellency, the President converted petitioner Bautista's designation as Acting Chairman to a permanent appointment as Chairman of the Commission on Human Rights on 17 December 1988, significantly she advised Bautista (in the same appointment letter) that, by virtue of such appointment, she could qualify and enter upon the performance of the duties of the office (of Chairman of the Commission on Human Rights). All that remained for Bautista to do was to reject or accept the appointment. Obviously, she accepted the appointment by taking her oath of office before the Chief Justice of the Supreme Court, Hon. Marcelo B. Fernan and assuming immediately thereafter the functions and duties of the Chairman of the Commission on Human Rights. Bautista's appointment therefore on 17 December 1988 as Chairman of the Commission on Human Rights was a completed act on the part of the President. To paraphrase the great jurist, Mr. Chief Justice Marshall, in the celebrated case of Marbury vs. Madison. 23 xxx xxx xxx The answer to this question seems an obvious one. The appointment being the sole act of the President, must be completely evidenced, when it is shown that he has done everything to be performed by him. xxx xxx xxx Some point of time must be taken when the power of the executive over an officer, not removable at his will must cease. That point of time must be when the constitutional power of appointment has been exercised. And this power has been exercised when the last act, required from the person possessing the power, has been performed. .... xxx xxx xxx But having once made the appointment, his (the President's) power over the office is terminated in all cases, where by law the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional power of accepting or rejecting it. xxx xxx xxx Respondent Commission vigorously contends that, granting that petitioner's appointment as Chairman of the Commission on Human Rights is one that, under Sec. 16, Art. VII of the Constitution, as interpreted in the Mison case, is solely for the President to make, yet, it is within the president's prerogative to voluntarily submit such appointment to the Commission on Appointment for confirmation. The mischief in this contention, as the Court perceives it, lies in the suggestion that the President

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The Law on Public Officers and Civil Service

Anniefair Ausan 2004-30770

(with Congress agreeing) may, from time to time move power boundaries, in the Constitution differently from where they are placed by the Constitution. The Court really finds the above contention difficult of acceptance. Constitutional Law, to begin with, is concerned with power not political convenience, wisdom, exigency, or even necessity. Neither the Executive nor the Legislative (Commission on Appointments) can create power where the Constitution confers none. The evident constitutional intent is to strike a careful and delicate balance, in the matter of appointments to public office, between the President and Congress (the latter acting through the Commission on Appointments). To tilt one side or the other of the scale is to disrupt or alter such balance of power. In other words, to the extent that the Constitution has blocked off certain appointments for the President to make with the participation of the Commission on Appointments, so also has the Constitution mandated that the President can confer no power of participation in the Commission on Appointments over other appointments exclusively reserved for her by the Constitution. The exercise of political options that finds no support in the Constitution cannot be sustained. Nor can the Commission on Appointments, by the actual exercise of its constitutionally delimited power to review presidential appointments, create power to confirm appointments that the Constitution has reserved to the President alone. Stated differently, when the appointment is one that the Constitution mandates is for the President to make without the participation of the Commission on Appointments, the executive's voluntary act of submitting such appointment to the Commission on Appointments and the latter's act of confirming or rejecting the same, are done without or in excess of jurisdiction. EVEN IF THE PRESIDENT MAY VOLUNTARILY SUBMIT TO THE COMMISSION ON APPOINTMENTS AN APPOINTMENT THAT UNDER THE CONSTITUTION SOLELY BELONGS TO HER, STILL, THERE WAS NO VACANCY TO WHICH AN APPOINTMENT COULD BE MADE ON 14 JANUARY 1989 Nor can respondents impressively contend that the new appointment or reappointment on 14 January 1989 was an ad interim appointment, because, under the Constitutional design, ad interim appointments do not apply to appointments solely for the President to make, i.e., without the participation of the Commission on Appointments.Ad interim appointments, by their very nature under the 1987 Constitution, extend only to appointments where the review of the Commission on Appointments is needed. That is why ad interim appointments are to remain valid until disapproval by the Commission on Appointments or until the next adjournment of Congress; but appointments that are for the President solely to make, that is, without the participation of the Commission on Appointments, can not be ad interim appointments. Petitioner can be removed but only for cause.

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