PoliRev Cases 1

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 116418 March 7, 1995

SALVADOR C. FERNANDEZ and ANICIA M. DE LIMA, petitioners,

vs.
HON. PATRICIA A. STO. TOMAS, Chairman, and HON. RAMON B. ERENETA, Commissioner, Civil Service
Commission, respondents.

FELICIANO, J.:

In this Petition for Certiorari, Prohibition and Mandamus with Prayer for a Temporary Restraining Order, petitioners Salvador C.
Fernandez and Anicia M. de Lima assail the validity of Resolution No. 94-3710 of the Civil Service Commission ("Commission")
and the authority of the Commission to issue the same.

Petitioner Fernandez was serving as Director of the Office of Personnel Inspection and Audit ("OPIA") while petitioner de Lima
was serving as Director of the Office of the Personnel Relations ("OPR"), both at the Central Office of the Civil Service
Commission in Quezon City, Metropolitan Manila. While petitioners were so serving, Resolution No. 94-3710 signed by public
respondents Patricia A.. Sto. Tomas and Ramon Ereneta, Jr., Chairman and Commissioner, respectively, of the Commission,
was issued on 7 June 1994.1 Resolution No. 94-3710 needs to be quoted in full:

RESOLUTION NO. 94-3710

WHEREAS, Section 17 of Book V of Executive Order 292 provides that ". . . as an independent constitutional
body, the Commission may effect changes in the organization as the need arises;"

WHEREAS, the Commission finds it imperative to effect changes in the organization to streamline its
operations and improve delivery of public service;

WHEREAS, the Commission finds it necessary to immediately effect changes in the organization of the Central
Offices in view of the need to implement new programs in lieu of those functions which were transferred to the
Regional Offices;

WHEREFORE, foregoing premises considered, the Commission hereby RESOLVES to effect the following
changes in its organization, specifically in the Central Offices:

1. The OCSS [Office of Career Systems and Standards], OPIA [Office of Personnel Inspection and Audit] and
OPR [Office of Personnel Relations] are merged to form the Research and Development Office (RDO).

2. The Office for Human Resource Development (OHRD) is renamed Human Resource Development Office
(HRDO).

3. The following functions and the personnel assigned to the unit performing said functions are hereby
transferred to HRDO:

a. Administration of the Honor and Awards program under OCSS;

b. Registration and Accreditation of Unions under OPR; and

c. Accreditation of Agencies to take final action on appointments under OPIA.

4. The Office for Central Personnel Records (OCPR) is renamed Management Information Office (MIO).

5. The Information technology functions of OPM and the personnel assigned to the unit are transferred to MIO.

6. The following functions of OPM and the personnel assigned to the unit performing said functions are hereby
transferred to the Office of the Executive Director:

a. Financial Audit and Evaluation;

b. Internal Management and Improvement;

c. Research and Statistics; and

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d. Planning and Programming.

7. The library service and its personnel under OCPR are transferred to the Central Administrative Office.

8. The budget allocated for the various functions shall be transferred to the Offices where the functions are
transferred. Records, fixtures and equipment that go with the functions shall be moved to where the functions
are transferred.

Annex A contains the manning list for all the offices, except the OCES.

The changes in the organization and in operations shall take place before end of July 1994.

Done in Quezon City, July 07, 1994.

(Signed)
Patricia A. Sto. Tomas
Chairman

(Signed) Did not participate

Ramon P. Ereneta, Jr., Thelma P. Gaminde
Commissioner Commissioner

Attested by:
(Signed)
Carmencita Giselle B. Dayson
Board Secretary V 2

During the general assembly of officers and employees of the Commission held in the morning of 28 July 1994, Chairman Sto.
Tomas, when apprised of objections of petitioners, expressed the determination of the Commission to implement Resolution No.
94-3710 unless restrained by higher authority.

Petitioners then instituted this Petition. In a Resolution dated 23 August 1994, the Court required public respondents to file a
Comment on the Petition. On 21 September 1994, petitioners filed an Urgent Motion for Issuance of a Temporary Restraining
Order, alleging that petitioners had received Office Orders from the Commission assigning petitioner Fernandez to Region V at
Legaspi City and petitioner de Lima to Region III in San Fernando, Pampanga and praying that public respondents be restrained
from enforcing these Office Orders. The Court, in a Resolution dated 27 September 1994, granted this Motion and issued the
Temporary Restraining Order prayed for by petitioners.

The Commission filed its own Comment, dated 12 September 1994, on the Petition and then moved to lift the Temporary
Restraining Order. The Office of the Solicitor General filed a separate Comment dated 28 November 1994, defending the validity
of Resolution No. 94-3710 and urging dismissal of the Petition. Petitioners filed separate Replies to these Comments. The
Commission in turn filed a Rejoinder (denominated "Comment [on] the Reply").

The principal issues raised in this Petition are the following:

(1) Whether or not the Civil Service Commission had legal authority to issue Resolution No. 94-3710 to the
extent it merged the OCSS [Office of Career Systems and Standards], the OPIA [Office of Personnel Inspection
and Audit] and the OPR [Office of Personnel Relations], to form the RDO [Research and Development Office];
and

(2) Whether or not Resolution No. 94-3710 violated petitioners' constitutional right to security of tenure.

I.

The Revised Administrative Code of 1987 (Executive Order No. 292 dated 25 July 1987) sets out, in Book V, Title I, Subtitle A,
Chapter 3, the internal structure and organization of the Commission in the following terms:

Sec. 16. Offices in the Commission — The Commission shall have the following offices:

(1) The Office of the Executive Director — . . .

(2) The Merit System Protection Board — . . .

(3) The Office of Legal Affairs — . . .

(4) The Office of Planning and Management — . . .

(5) The Central Administrative Office — . . .

(6) The Office of Central Personnel Records — . . .

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(7) The Office of Position Classification and
Compensation — . . .

(8) The Office of Recruitment, Examination and

Placement — . . .

(9) The Office of Career Systems and Standards shall provide leadership and assistance in the formulation and
evaluation of personnel systems and standards relative to performance appraisal, merit promotion and
employee incentive benefits and awards.

(10) The Office of Human Resource Development — . . .

(11) The Office of Personnel Inspection and Audit shall develop policies, standards, rules and regulations for
the effective conduct of inspection and audit of personnel and personnel management programs and the
exercise of delegated authority; provide technical and advisory services to Civil Service Regional Offices and
government agencies in the implementation of their personnel programs and evaluation systems.

(12) The Office of Personnel Relations shall provide leadership and assistance in the development and
implementation of policies, standards, rules and regulations governing corporate officials and employees in the
areas of recruitment, examination, placement, career development, merit and awards systems, position
classification and compensation, performance appraisal, employee welfare and benefits, discipline and other
aspects of personnel management on the basis of comparable industry practices.

(13) The Office of the Corporate Affairs — . . .

(14) The Office of Retirement Administration — . . .

(15) The Regional and Field Offices. — . . . (Emphases in the original)

Immediately after the foregoing listing of offices of the Commission and their respective functions, the 1987 Revised
Administrative Code goes on to provide as follows:

Sec. 17. Organizational Structure. — Each office of the Commission shall be headed by a Director with at least
one (1) Assistant Director, and may have such divisions as are necessary to carry out their respective
functions. As an independent constitutional body, the Commission may effect chances in the organization as
the need arises.

xxx xxx xxx 3

(Emphasis supplied)

Examination of the foregoing statutory provisions reveals that the OCSS, OPIA and OPR, and as well each of the other Offices
listed in Section 16 above, consist of aggregations of Divisions, each of which Divisions is in turn a grouping of Sections. Each
Section, Division and Office comprises a group of positions within the agency called the Civil Service Commission, each group
being entrusted with a more or less definable function or functions. These functions are related to one another, each of them
being embraced by a common or general subject matter. Clearly, each Office is an internal department or organizational unit
within the Commission and that accordingly, the OCSS, OPIA and OPR, as well as all the other Offices within the Commission
constitute administrative subdivisions of the CSC. Put a little differently, these offices relate to the internal structure of the
Commission.

What did Resolution No. 94-3710 of the Commission do? Examination of Resolution No. 94-3710 shows that thereby the
Commission re-arranged some of the administrative units (i.e., Offices) within the Commission and, among other things, merged
three (3) of them (OCSS, OPIA and OPR) to form a new grouping called the "Research and Development Office (RDO)." The
same Resolution renamed  some of the Offices of the Commission, e.g., the Office for Human Resource Development (OHRD)
was renamed Human Resource Development Office (HRDO); the Office for Central Personnel Records (OCPR) was renamed
Management Information Office (MIO). The Commission also re-allocated certain functions moving some functions from one
Office to another; e.g., the information technology function of OPM (Office of Planning and Management) was transferred to the
newly named Management Information Office (MIO). This re-allocation or re-assignment of some functions carried with it the
transfer of the budget earmarked for such function to the Office where the function was transferred. Moreover, the personnel,
records, fixtures and equipment that were devoted to the carrying out of such functions were moved to the Offices to where the
functions were transferred.

The objectives sought by the Commission in enacting Resolution No. 94-3710 were described in that Resolution in broad terms
as "effect[ing] changes in the organization to streamline [the Commission's] operations and improve delivery of service." These
changes in internal organization were rendered necessary by, on the one hand, the decentralization and devolution of the
Commission's functions effected by the creation of fourteen (14) Regional Offices and ninety-five (95) Field Offices of the
Commission throughout the country, to the end that the Commission and its staff may be brought closer physically to the
government employees that they are mandated to serve. In the past, its functions had been centralized in the Head Office of the
Commission in Metropolitan Manila and Civil Service employees all over the country were compelled to come to Manila for the
carrying out of personnel transactions. Upon the other hand, the dispersal of the functions of the Commission to the Regional
Offices and the Field Offices attached to various governmental agencies throughout the country makes possible the
implementation of new programs of the Commission at its Central Office in Metropolitan Manila.
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The Commission's Office Order assigning petitioner de Lima to the CSC Regional Office No. 3 was precipitated by the
incumbent Regional Director filing an application for retirement, thus generating a need to find a replacement for him. Petitioner
de Lima was being assigned to that Regional Office while the incumbent Regional Director was still there to facilitate her take
over of the duties and functions of the incumbent Director. Petitioner de Lima's prior experience as a labor lawyer was also a
factor in her assignment to Regional Office No. 3 where public sector unions have been very active. Petitioner Fernandez's
assignment to the CSC Regional Office No. 5 had, upon the other hand, been necessitated by the fact that the then incumbent
Director in Region V was under investigation and needed to be transferred immediately to the Central Office. Petitioner
Fernandez was deemed the most likely designee for Director of Regional Office No. 5 considering that the functions previously
assigned to him had been substantially devolved to the Regional Offices such that his reassignment to a Regional Office would
result in the least disruption of the operations of the Central Office. 4

It thus appears to the Court that the Commission was moved by quite legitimate considerations of administrative efficiency and
convenience in promulgating and implementing its Resolution No. 94-3710 and in assigning petitioner Salvador C. Fernandez to
the Regional Office of the Commission in Region V in Legaspi City and petitioner Anicia M. de Lima to the Commission's
Regional Office in Region III in San Fernando, Pampanga. It is also clear to
the Court that the changes introduced and formalized through Resolution No. 94-3710 — re-naming of existing Offices; re-
arrangement of the groupings of Divisions and Sections composing particular Offices; re-allocation of existing functions (and
related personnel; budget, etc.) among the re-arranged Offices — are precisely the kind of internal changes which are referred
to in Section 17 (Book V, Title I, Subtitle A, Chapter 3) of the 1987 Revised Administrative Code), quoted above, as "chances in
the organization" of the Commission.

Petitioners argue that Resolution No. 94-3710 effected the "abolition" of public offices, something which may be done only by
the same legislative authority which had created those public offices in the first place.

The Court is unable, in the circumstances of this case, to accept this argument. The term "public office" is frequently used to
refer to 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 government, to be
exercised by that individual for the benefit of the public. 5 We consider that Resolution No. 94-3710 has not abolished any public
office as that term is used in the law of public officers.6 It is essential to note that none of the "changes in organization"
introduced by Resolution No. 94-3710 carried with it or necessarily involved the termination of the relationship of public
employment between the Commission and any of its officers and employees. We find it very difficult to suppose that the 1987
Revised Administrative Code having mentioned fourteen (14) different "Offices" of the Civil Service Commission, meant to
freeze those Offices and to cast in concrete, as it were, the internal organization of the commission until it might please
Congress to change such internal organization regardless of the ever changing needs of the Civil Service as a whole. To the
contrary, the legislative authority had expressly authorized the Commission to carry out "changes in the organization," as the
need [for such changes] arises." 7 Assuming, for purposes of argument merely, that legislative authority was necessary to carry
out the kinds off changes contemplated in Resolution No. 94-3710 (and the Court is not saying that such authority is necessary),
such legislative authority was validly delegated to the Commission by Section 17 earlier quoted. The legislative standards to be
observed and respected in the exercise of such delegated authority are set out not only in Section 17 itself (i.e., "as the need
arises"), but also in the Declaration of Policies found in Book V, Title I, Subtitle A, Section 1 of the 1987 Revised Administrative
Code which required the Civil Service Commission

as the central personnel agency of the Government [to] establish a

career service, adopt measures to promote — efficiency — [and] responsiveness . . . in the civil service . . .
and that personnel functions shall be decentralized, delegating the corresponding authority  to the departments,
offices and agencies where such functions can be effectively performed. (Emphasis supplied)

II.

We turn to the second claim of petitioners that their right to security of tenure was breached by the respondents in promulgating
Resolution No. 94-3710 and ordering petitioners' assignment to the Commission's Regional Offices in Regions III and V. Section
2(3) of Article IX(B) of the 1987 Constitution declared that "no officer or employee of the Civil Service shall be removed or
suspended except for cause provided by law." Petitioners in effect contend that they were unlawfully removed from their
positions in the OPIA and OPR by the implementation of Resolution No. 94-3710 and that they cannot, without their consent, be
moved out to the Regional Offices of the Commission.

We note, firstly, that appointments to the staff of the Commission are not appointments to a specified public office but rather
appointments to particular positions or ranks. Thus, a person may be appointed to the position of Director III or Director IV; or to
the position of Attorney IV or Attorney V; or to the position of Records Officer I or Records Officer II; and so forth. In the instant
case, petitioners were each appointed to the position of Director IV, without specification of any particular office or station. The
same is true with respect to the other persons holding the same position or rank of Director IV of the Commission.

Section 26(7), Book V, Title I, Subtitle A of the 1987 Revised Administrative Code recognizes reassignment as a management
prerogative vested in the Commission and, for that matter, in any department or agency of government embraced in the civil
service:

Sec. 26. Personnel Actions. — . . .

xxx xxx xxx

As used in this Title, any action denoting the movement or progress of personnel in the civil service shall be
known as personnel action. Such action shall include appointment through certification, promotion, transfer, re-
instatement, re-employment, detail, reassignment, demotion, and separation. All personnel actions shall be in
accordance with such rules, standards, and regulations as may be promulgated by the Commission.
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xxx xxx xxx

(7) Reassignment. An employee may be re-assigned from one organizational unit to another in the same
agency, Provided, That such re-assignment shall not  involve a reduction in rank status and salary. (Emphasis
supplied)

It follows that the reassignment of petitioners Fernandez and de Lima from their previous positions in OPIA and OPR,
respectively, to the Research and Development Office (RDO) in the Central Office of the Commission in Metropolitan Manila and
their subsequent assignment from the RDO to the Commission's Regional Offices in Regions V and III had been effected with
express statutory authority and did not constitute removals without lawful cause. It also follows that such re-assignment
did not involve any violation of the constitutional right of petitioners to security of tenure considering that they retained their
positions of Director IV and would continue to enjoy the same rank, status and salary at their new assigned stations which they
had enjoyed at the Head Office of the Commission in Metropolitan Manila. Petitioners had not, in other words, acquired a vested
right to serve at the Commission's Head Office.

Secondly, the above conclusion is compelled not only by the statutory provisions relevant in the instant case, but also by a long
line of cases decided by this Court in respect of different agencies or offices of government.

In one of the more recent of these cases, Department of Education Culture and Sports, etc., et al. v.  Court of Appeals, et
al.,8 this Court held that a person who had been appointed as "Secondary School Principal II" in the Division of City Schools,
District II, Quezon City, National Capital Region, and who had been stationed as High School Principal in the Carlos Albert High
School in Quezon for a number of years, could lawfully be reassigned or transferred to the Manuel Roxas High School, also in
Quezon City, without demotion in rank or diminution of salry. This Court held:

The aforequoted provision of Republic Act No. 4670 particularly Section 6 thereof which provides that except
for cause and in the exigencies of the service no teacher shall be transferred without his consent from one
station to another, finds no application in the case at bar as this is predicated upon the theory that the teacher
concerned is appointed — not merely assigned — to a particular station. Thus:

The rule pursued by plaintiff only goes so far as

the appointed indicates a specification.  Otherwise, the constitutionally ordained security of
tenure cannot shield her. In appointments of this nature, this Court has consistently rejected
the officer's demand to remain — even as public service dictates that a transfer be made — in
a particular station. Judicial attitude toward transfers of this nature is expressed in the
following statement in Ibañez, et al. vs.  Commission on Elections, et al. (G.R. No.
L-26558, April 27, 1967; 19 SCRA 1002 [1967]);

That security of tenure is an essential and constitutionally guaranteed feature

of our Civil Service System, is not open to debate. The mantle of its
protection extends not only against removals without cause but also against
unconsented transfer which, as repeatedly enunciatEd, are tantamount to
removals which are within the ambit of the fundamental guarantee. However,
the availability of that security of tenure necessarily depends, in the first
instance, upon the nature of the appointment  (Hojilla vs. Marino, 121 Phil.
280 [1965].) Such that the rule which proscribes transfers without consent as
anathema to the security of tenure is predicated upon the theory that the
officer involved is appointed — not merely assigned  — to a particular
station (Miclat v. Ganaden, et al., 108 Phil. 439 [1960]; Jaro v. Hon.
Valencia, et al., 118 Phil. 728 [1963]). [Brillantes v. Guevarra, 27 SCRA 138
(1969)]

The appointment  of Navarro as principal does not refer to any particular station or school.  As such, she could
be assigned to any station and she is not entitled to stay permanently at any specific school. (Bongbong v.
Parado, 57 SCRA 623) When she was assigned to the Carlos Albert High School, it could not have been with
the intention to let her stay in said school permanently. Otherwise, her appointment would have so stated.
Consequently, she may be assigned to any station or school in Quezon City as the exigencies of public service
require even without consent. As this Court ruled in Brillantes v. Guevarra, 27 SCRA 138,
143 —

Plaintiff's confident stride falters. She took too loose a view of the applicable
jurisprudence. Her refuge behind the mantle of security of tenure guaranteed by the
Constitution is not impenetrable. She proceeds upon the assumption that she occupies her
station in Sinalang Elementary School by appointment. But her first appointment as Principal
merely reads thus: "You are hereby appointed a Principal (Elementary School) in the Bureau
of Public Schools, Department of Education", without mentioning her station. She cannot
therefore claim security of tenure as Principal of Sinalang Elementary School or any particular
station. She may be assigned to any station as exigency of public service requires, even
without her consent. She thus has no right of choice.9 (Emphasis supplied; citation omitted)

In the very recent case of Fernando, et al.  v. Hon.  Sto. Tomas, etc., et

a1., 10 the Court addressed appointments of petitioners as "Mediators-Arbiters in the National Capital Region" in dismissing a
challenge on certiorari  to resolutions of the CSC and orders of the Secretary of Labor. The Court said:
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Petitioners were appointed as Mediator Arbiters in the National Capital Region. They were not, however,
appointed to a specific station or particular unit of the Department of Labor in the National Capital Region
(DOLE-NCR). Consequently, they can always be reassigned from one organizational unit to another of the
same agency  where, in the opinion of respondent Secretary, their services may be used more effectively. As
such they can neither claim a vested right to the station to which they were assigned nor to security of tenure
thereat. As correctly observed by the Solicitor General, petitioners' reassignment is not a transfer for they were
not removed from their position as med-arbiters. They were not given new appointments to new positions. It
indubitably follows, therefore, that Memorandum Order No. 4 ordering their reassignment in the interest of the
service is legally in order.11 (Emphases supplied)

In Quisumbing v. Gumban, 12 the Court, dealing with an appointment in the Bureau of Public Schools of the Department
of Education, Culture and Sports, ruled as follows:

After a careful scrutiny of the records, it is to be underscored that the appointment of private respondent Yap is
simply that of a District Supervisor of the Bureau of Public Schools which does not indicate a specific
station  (Rollo, p. 13). A such, she could be assigned to any station and she is no entitled to stay permanently
at any specific station (Bongbong v. Parado, 57 SCRA 623 [1974]; Department of Education, Culture and
Sports v. Court of Appeals [G.R. 81032, March 22, 1990] citing  Brillantes v. Guevarra [27 SCRA 138 [1969]). 13

Again, in Ibañez v. Commission on Elections, 14 the Court had before it petitioners' appointments as "Election Registrars in the
Commission of Elections," without any intimation to what city, municipality or municipal district they had been appointed as
such. 15 The Court held that since petitioners "were not appointed to, and consequently not entitled to any security of tenure or
permanence in, any specific station," "on general principles, they [could] be transferred as the exigencies of the service
required," and that they had no right to complain against any change in assignment. The Court further held that assignment to a
particular station after issuance of the appointment was not necessary to complete such appointment:

. . . . We cannot subscribe to the theory that an assignment to a particular station, in the light of the terms of the
appointments in question, was necessary to complete the said appointments. The approval thereof by the
Commissioner of Civil Service gave those appointments the stamp of finality. With the view that the respondent
Commission then took of its power in the premises and the demand of the mission it set out to accomplish with
the appointments it extended, said appointments were definitely meant to be complete as then issued. The
subsequent assignment of the appointees thereunder  that the said respondent Commission held in reserve to
be exercised as the needs of each locality justified did not in any way detract from the perfection attained by
the appointments beforehand. And the respective appointees were entitled only to such security of tenure as
the appointment papers concerned actually conferred — not in that of any place to which they may have been
subsequently assigned. . . . As things stand, in default of any particular station stated in their respective
appointments, no security of tenure can be asserted by the petitioners on the basis of the mere assignments
which were given to them. A contrary rule will erase altogether the demarcation line we have repeatedly drawn
between appointment and assignment  as two distinct concepts in the law of public officers. 16 (Emphases
supplied)

The petitioner, in Miclat v. Ganaden, 17 had been appointed as a "Welfare Office Incharge, Division of Urban, Rural and
Community Administration, Social Welfare Administration." She was assigned as Social Welfare Incharge of the Mountain
Province, by an office order of the Administrator, Social Welfare Administration. After a little more than a year; petitioner was
assigned elsewhere and respondent Ganaden transferred to petitioner's first station in Baguio City. The Court ruled that
petitioner was not entitled to remain in her first station, In Jaro v.  Hon. Valencia, et al., 18 petitioner Dr. Jaro had been appointed
"Physician in the Municipal Maternity and Charity Clinics, Bureau of Hospitals." He was first assigned to the Municipal Maternity
and Charity Clinics in Batulati, Davao, and later to the corresponding clinic in Saug, Davao and then to Catil, Davao. He was
later assigned to the Municipality of Padada, also of Davao Province. He resisted his last assignment and
brought mandamus against the Secretary of Health to compel the latter to return him to his station in Catil, Davao as Municipal
Health Officer thereof. The Court, applying Miclat v.  Ganaden dismissed this Petition holding that his appointment not being to
any specific station but as a physician in the Municipal Maternity and Charity Clinics, Bureau of Hospitals, he could be
transferred or assigned to any station where, in the opinion of the Secretary of Health, his services may be utilized more
effectively. 19

Also noteworthy is Sta. Maria v.  Lopez  20 which involved the appointment of petitioner Sta. Maria as "Dean, College of
Education, University of the Philippines." Dean Sta. Maria was transferred by the President of the University of the Philippines to
the Office of the President, U.P., without demotion in rank or salary, thereby acceding to the demands of student activists who
were boycotting their classes in the U.P. College of Education. Dean Sta. Maria assailed his transfer as an illegal and
unconstitutional removal from office. In upholding Dean Sta. Maria's claim, the Court, speaking through Mr. Justice Sanchez, laid
down the applicable doctrine in the following terms:

4. Concededly, transfers there are which do not amount to removal. Some such transfer can be effected
without the need for charges being preferred, without trial or hering, and even without the consent of the
employee.

The clue to such transfers may be found in the  "nature of the appointment." Where the appointment does not
indicate a specific station, an employee may be transferred or reassigned provided the transfer affects no
substantial change in title, rank and salary. Thus one who is appointed "principal in the Bureau of Public
Schools" and is designated to head a pilot school may be transferred to the post of principal of another school.

And the rule that outlaws unconsented transfers as anathema to security of tenure applies only to an officer
who is appointed — not merely assigned — to a particular station. Such a rule does not prescribe a transfer
carried out under a specific statute that empowers the head of an agency to periodically reassign the
employees and officers in order to improve the service of the agency. The use of approved techniques or
PoliRev Cases 1
methods in personnel management to harness the abilities of employees to promote optimum public service
cannot-be objected to. . . .

5. The next point of inquiry is whether or not Administrative Order 77 would stand the test of validity vis-a-
vis  the principles just enunciated.

xxx xxx xxx

To be stressed at this point, however, is that the appointment of Sta. Maria is that of "Dean, College of
Education, University of the Philippines." He is not merely a dean "in the university."  His appointment is to a
specific position;  and, more importantly, to a specific station. 21 (Citations omitted; emphases supplied)

For all the foregoing we conclude that the reassignment of petitioners Fernandez and de Lima from their stations in the OPIA
and OPR, respectively, to the Research Development Office (RDO) and from the RDO to the Commissions Regional Offices in
Regions V and III, respectively, without their consent, did not constitute a violation of their constitutional right to security of
tenure.

WHEREFORE, the Petition for Certiorari, Prohibition and Mandamus  with Prayer for Writ of Preliminary Injunction or Temporary
Restraining Order is hereby DISMISSED. The Temporary Restraining Order issued by this Court on 27 September 1994 is
hereby LIFTED. Costs against petitioners.

SO ORDERED.
PoliRev Cases 1
EN BANC

G.R. No. 152295            July 9, 2002

ANTONIETTE V.C. MONTESCLAROS, MARICEL CARANZO, JOSEPHINE ATANGAN, RONALD ATANGAN and CLARIZA
DECENA, and OTHER YOUTH OF THE LAND SIMILARLY SITUATED, petitioners,
vs.
COMMISSION ON ELECTIONS, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, DEPARTMENT OF BUDGET
AND MANAGEMENT, EXECUTIVE SECRETARY of the OFFICE OF THE PRESIDENT, SENATOR FRANKLIN DRILON in
his capacity as Senate President and SENATOR AQUILINO PIMENTEL in his capacity as Minority Leader of the Senate
of the Philippines, CONGRESSMAN JOSE DE VENECIA in his capacity as Speaker, CONGRESSMAN AGUSTO L.
SYJOCO in his capacity as Chairman of the Committee on Suffrage and Electoral Reforms, and CONGRESSMAN
EMILIO C. MACIAS II in his capacity as Chairman of the Committee on Local Government of the House of
Representatives, THE PRESIDENT OF THE PAMBANSANG KATIPUNAN NG MGA SANGGUNIANG KABATAAN, AND
ALL THEIR AGENTS AND REPRESENTATIVES, respondents.

CARPIO, J.:

The Case

Before us is a petition for certiorari, prohibition and mandamus with prayer for a temporary restraining order or preliminary
injunction. The petition seeks to prevent the postponement of the Sangguniang Kabataan ("SK" for brevity) elections originally
scheduled last May 6, 2002. The petition also seeks to prevent the reduction of the age requirement for membership in the SK.

Petitioners, who are all 20 years old, filed this petition as a taxpayer's and class suit, on their own behalf and on behalf of other
youths similarly situated. Petitioners claim that they are in danger of being disqualified to vote and be voted for in the SK
elections should the SK elections on May 6, 2002 be postponed to a later date. Under the Local Government Code of 1991 (R.A.
No. 7160), membership in the SK is limited to youths at least 15 but not more than 21 years old.

Petitioners allege that public respondents "connived, confederated and conspired" to postpone the May 6, 2002 SK elections
and to lower the membership age in the SK to at least 15 but less than 18 years of age. Petitioners assail the alleged conspiracy
because youths at least 18 but not more than 21 years old will be "summarily and unduly dismembered, unfairly discriminated,
unnecessarily disenfranchised, unjustly disassociated and obnoxiously disqualified from the SK organization." 1

Thus, petitioners pray for the issuance of a temporary restraining order or preliminary injunction -

"a) To prevent, annul or declare unconstitutional any law, decree, Comelec resolution/directive and other respondents'
issuances, orders and actions and the like in postponing the May 6, 2002 SK elections.

b) To command the respondents to continue the May 6, 2002 SK elections set by the present law and in accordance
with Comelec Resolutions No. 4713 and 4714 and to expedite the funding of the SK elections.

c) In the alternative, if the SK elections will be postponed for whatever reason, there must be a definite date for said
elections, for example, July 15, 2002, and the present SK membership, except those incumbent SK officers who were
elected on May 6, 1996, shall be allowed to run for any SK elective position even if they are more than 21 years old.

d) To direct the incumbent SK officers who are presently representing the SK in every sanggunian and the NYC to
vacate their post after the barangay elections." 2

The Facts

The SK is a youth organization originally established by Presidential Decree No. 684 as the Kabataang Barangay ("KB" for
brevity). The KB was composed of all barangay residents who were less than 18 years old, without specifying the minimum age.
The KB was organized to provide its members with the opportunity to express their views and opinions on issues of
transcendental importance.3

The Local Government Code of 1991 renamed the KB to SK and limited SK membership to those youths "at least 15 but not
more than 21 years of age."4 The SK remains as a youth organization in every barangay tasked to initiate programs "to enhance
the social, political, economic, cultural, intellectual, moral, spiritual, and physical development of the youth." 5 The SK in every
barangay is composed of a chairperson and seven members, all elected by the Katipunan ng Kabataan. The Katipunan ng
Kabataan in every barangay is composed of all citizens actually residing in the barangay for at least six months and who meet
the membership age requirement.

The first SK elections took place on December 4, 1992. RA No. 7808 reset the SK elections to the first Monday of May of 1996
and every three years thereafter. RA No. 7808 mandated the Comelec to supervise the conduct of the SK elections under rules
the Comelec shall promulgate. Accordingly, the Comelec on December 4, 2001 issued Resolution Nos. 4713 6 and 47147 to
govern the SK elections on May 6, 2002.

On February 18, 2002, petitioner Antoniette V.C. Montesclaros ("Montesclaros" for brevity) sent a letter 8 to the Comelec,
demanding that the SK elections be held as scheduled on May 6, 2002. Montesclaros also urged the Comelec to respond to her
letter within 10 days upon receipt of the letter, otherwise, she will seek judicial relief.
PoliRev Cases 1
On February 20, 2002, Alfredo L. Benipayo ("Chairman Benipayo" for brevity), then Comelec Chairman, wrote identical letters to
the Speaker of the House9 and the Senate President10 about the status of pending bills on the SK and Barangay elections. In his
letters, the Comelec Chairman intimated that it was "operationally very difficult" to hold both elections simultaneously in May
2002. Instead, the Comelec Chairman expressed support for the bill of Senator Franklin Drilon that proposed to hold the
Barangay elections in May 2002 and postpone the SK elections to November 2002.

Ten days lapsed without the Comelec responding to the letter of Montesclaros. Subsequently, petitioners received a copy of
Comelec En Banc Resolution No. 476311 dated February 5, 2002 recommending to Congress the postponement of the SK
elections to November 2002 but holding the Barangay elections in May 2002 as scheduled. 12

On March 6, 2002, the Senate and the House of Representatives passed their respective bills postponing the SK elections. On
March 11, 2002, the Bicameral Conference Committee ("Bicameral Committee" for brevity) of the Senate and the House came
out with a Report13 recommending approval of the reconciled bill consolidating Senate Bill No. 2050 14 and House Bill No.
4456.15 The Bicameral Committee's consolidated bill reset the SK and Barangay elections to July 15, 2002 and lowered the
membership age in the SK to at least 15 but not more than 18 years of age.

On March 11, 2002, petitioners filed the instant petition.

On March 11, 2002, the Senate approved the Bicameral Committee's consolidated bill and on March 13, 2002, the House of
Representatives approved the same. The President signed the approved bill into law on March 19, 2002.

The Issues

Petitioners16 raise the following grounds in support of their petition:

"I.

RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND UNCONSTITUTIONALLY THUS CONSTITUTED (SIC)

WITH GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN THEY
INTENDED TO POSTPONE THE SK ELECTIONS.

II.

RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND UNCONSTITUTIONALLY THUS CONSTITUTED (SIC)

WITH GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN THEY
INTENDED TO DISCRIMINATE, DISENFRANCHISE, SINGLE OUT AND DISMEMBER THE SK MEMBERS WHO
ARE 18 BUT NOT LESS17 (SIC) THAN 21 YEARS OLD COMPOSED OF ABOUT 7 MILLION YOUTH.

III.

RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND UNCONSTITUTIONALLY THUS CONSTITUTED (SIC)

WITH GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN THEY
WILLFULLY FAILED TO FUND THE SK ELECTION PURPORTEDLY TO POSTPONE THE SAME IN ORDER TO
IMPLEMENT THEIR ILLEGAL SCHEME AND MACHINATION IN SPITE OF THE FACT THAT THERE ARE
AVAILABLE FUNDS FOR THE PURPOSE.

IV.

THE INCUMBENT SK OFFICERS WANTED TO PERPETUALLY SIT ON THEIR RESPECTIVE OFFICES CONTRARY
TO THE ENVISION (SIC) OF THE CREATION OF THE SK ORGANIZATION, HENCE, IN VIOLATION OF LAW AND
CONSTITUTION."18

The Court's Ruling

The petition is bereft of merit.

At the outset, the Court takes judicial notice of the following events that have transpired since petitioners filed this petition:

1. The May 6, 2002 SK elections and May 13, 2002 Barangay elections were not held as scheduled.

2. Congress enacted RA No. 916419 which provides that voters and candidates for the SK elections must be "at least 15
but less than 18 years of age on the day of the election." 20 RA No. 9164 also provides that there shall be a synchronized
SK and Barangay elections on July 15, 2002.

3. The Comelec promulgated Resolution No. 4846, the rules and regulations for the conduct of the July 15, 2002
synchronized SK and Barangay elections.

Petitioners, who all claim to be 20 years old, argue that the postponement of the May 6, 2002 SK elections disenfranchises
them, preventing them from voting and being voted for in the SK elections. Petitioners' theory is that if the SK elections were
postponed to a date later than May 6, 2002, the postponement would disqualify from SK membership youths who will turn 21
years old between May 6, 2002 and the date of the new SK elections. Petitioners claim that a reduction in the SK membership
age to 15 but less than 18 years of age from the then membership age of 15 but not more than 21 years of age would disqualify
PoliRev Cases 1
about seven million youths. The public respondents' failure to hold the elections on May 6, 2002 would prejudice petitioners and
other youths similarly situated.

Thus, petitioners instituted this petition to: (1) compel public respondents to hold the SK elections on May 6, 2002 and should it
be postponed, the SK elections should be held not later than July 15, 2002; (2) prevent public respondents from passing laws
and issuing resolutions and orders that would lower the membership age in the SK; and (3) compel public respondents to allow
petitioners and those who have turned more than 21 years old on May 6, 2002 to participate in any re-scheduled SK elections.

The Court's power of judicial review may be exercised in constitutional cases only if all the following requisites are complied with,
namely: (1) the existence of an actual and appropriate case or controversy; (2) a personal and substantial interest of the party
raising the constitutional question; (3) the exercise of judicial review is pleaded at the earliest opportunity; and (4) the
constitutional question is the lis mota of the case.21

In the instant case, there is no actual controversy requiring the exercise of the power of judicial review. While seeking to prevent
a postponement of the May 6, 2002 SK elections, petitioners are nevertheless amenable to a resetting of the SK elections to any
date not later than July 15, 2002. RA No. 9164 has reset the SK elections to July 15, 2002, a date acceptable to petitioners. With
respect to the date of the SK elections, there is therefore no actual controversy requiring judicial intervention.

Petitioners' prayer to prevent Congress from enacting into law a proposed bill lowering the membership age in the SK does not
present an actual justiciable controversy. A proposed bill is not subject to judicial review because it is not a law. A proposed bill
creates no right and imposes no duty legally enforceable by the Court. A proposed bill, having no legal effect, violates no
constitutional right or duty. The Court has no power to declare a proposed bill constitutional or unconstitutional because that
would be in the nature of rendering an advisory opinion on a proposed act of Congress. The power of judicial review cannot be
exercised in vacuo.22 The second paragraph of Section 1, Article VIII of the Constitution states –

"Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." (Emphasis
supplied)

Thus, there can be no justiciable controversy involving the constitutionality of a proposed bill. The Court can exercise its power
of judicial review only after a law is enacted, not before.

Under the separation of powers, the Court cannot restrain Congress from passing any law, or from setting into motion the
legislative mill according to its internal rules. Thus, the following acts of Congress in the exercise of its legislative powers are not
subject to judicial restraint: the filing of bills by members of Congress, the approval of bills by each chamber of Congress, the
reconciliation by the Bicameral Committee of approved bills, and the eventual approval into law of the reconciled bills by each
chamber of Congress. Absent a clear violation of specific constitutional limitations or of constitutional rights of private parties, the
Court cannot exercise its power of judicial review over the internal processes or procedures of Congress. 23

The Court has also no power to dictate to Congress the object or subject of bills that Congress should enact into law. The
judicial power to review the constitutionality of laws does not include the power to prescribe to Congress what laws to enact. The
Court has no power to compel Congress by mandamus to enact a law allowing petitioners, regardless of their age, to vote and
be voted for in the July 15, 2002 SK elections. To do so would destroy the delicate system of checks and balances finely crafted
by the Constitution for the three co-equal, coordinate and independent branches of government.

Under RA No. 9164, Congress merely restored the age requirement in PD No. 684, the original charter of the SK, which fixed
the maximum age for membership in the SK to youths less than 18 years old. Petitioners do not have a vested right to the
permanence of the age requirement under Section 424 of the Local Government Code of 1991. Every law passed by Congress
is always subject to amendment or repeal by Congress. The Court cannot restrain Congress from amending or repealing laws,
for the power to make laws includes the power to change the laws. 24

The Court cannot also direct the Comelec to allow over-aged voters to vote or be voted for in an election that is limited under RA
No. 9164 to youths at least 15 but less than 18 years old. A law is needed to allow all those who have turned more than 21 years
old on or after May 6, 2002 to participate in the July 15, 2002 SK elections. Youths from 18 to 21 years old as of May 6, 2002
are also no longer SK members, and cannot participate in the July 15, 2002 SK elections. Congress will have to decide whether
to enact an amendatory law. Petitioners' remedy is legislation, not judicial intervention.

Petitioners have no personal and substantial interest in maintaining this suit. A party must show that he has been, or is about to
be denied some personal right or privilege to which he is lawfully entitled. 25 A party must also show that he has a real interest in
the suit. By "real interest" is meant a present substantial interest, as distinguished from a mere expectancy or future, contingent,
subordinate, or inconsequential interest. 26

In the instant case, petitioners seek to enforce a right originally conferred by law on those who were at least 15 but not more
than 21 years old. Now, with the passage of RA No. 9164, this right is limited to those who on the date of the SK elections are at
least 15 but less than 18 years old. The new law restricts membership in the SK to this specific age group. Not falling within this
classification, petitioners have ceased to be members of the SK and are no longer qualified to participate in the July 15, 2002 SK
elections. Plainly, petitioners no longer have a personal and substantial interest in the SK elections.

This petition does not raise any constitutional issue. At the time petitioners filed this petition, RA No. 9164, which reset the SK
elections and reduced the age requirement for SK membership, was not yet enacted into law. After the passage of RA No. 9164,
petitioners failed to assail any provision in RA No. 9164 that could be unconstitutional. To grant petitioners' prayer to be allowed
to vote and be voted for in the July 15, 2002 SK elections necessitates assailing the constitutionality of RA No. 9164. This,
PoliRev Cases 1
petitioners have not done. The Court will not strike down a law unless its constitutionality is properly raised in an appropriate
action and adequately argued.27

The only semblance of a constitutional issue, albeit erroneous, that petitioners raise is their claim that SK membership is a
"property right within the meaning of the Constitution." 28 Since certain public offices are "reserved" for SK officers, petitioners
also claim a constitutionally protected "opportunity" to occupy these public offices. In petitioners' own words, they and others
similarly situated stand to "lose their opportunity to work in the government positions reserved for SK members or
officers."29 Under the Local Government Code of 1991, the president of the federation of SK organizations in a municipality, city
or province is an ex-officio member of the municipal council, city council or provincial board, respectively. 30 The chairperson of
the SK in the barangay is an ex-officio member of the Sangguniang Barangay.31 The president of the national federation of SK
organizations is an ex-officio member of the National Youth Commission, with rank of a Department Assistant Secretary. 32

Congress exercises the power to prescribe the qualifications for SK membership. One who is no longer qualified because of an
amendment in the law cannot complain of being deprived of a proprietary right to SK membership. Only those who qualify as SK
members can contest, based on a statutory right, any act disqualifying them from SK membership or from voting in the SK
elections. SK membership is not a property right protected by the Constitution because it is a mere statutory right conferred by
law. Congress may amend at any time the law to change or even withdraw the statutory right.

A public office is not a property right. As the Constitution expressly states, a "[P]ublic office is a public trust." 33 No one has a
vested right to any public office, much less a vested right to an expectancy of holding a public office. In Cornejo v.
Gabriel,34 decided in 1920, the Court already ruled:

"Again, for this petition to come under the due process of law prohibition, it would be necessary to consider an office a
"property." It is, however, well settled x x x that a public office is not property within the sense of the
constitutional guaranties of due process of law, but is a public trust or agency. x x x The basic idea of the
government x x x is that of a popular representative government, the officers being mere agents and not rulers of the
people, one where no one man or set of men has a proprietary or contractual right to an office, but where every officer
accepts office pursuant to the provisions of the law and holds the office as a trust for the people he represents."
(Emphasis supplied)

Petitioners, who apparently desire to hold public office, should realize from the very start that no one has a proprietary right to
public office. While the law makes an SK officer an ex-officio member of a local government legislative council, the law does not
confer on petitioners a proprietary right or even a proprietary expectancy to sit in local legislative councils. The constitutional
principle of a public office as a public trust precludes any proprietary claim to public office. Even the State policy directing "equal
access to opportunities for public service"35 cannot bestow on petitioners a proprietary right to SK membership or a proprietary
expectancy to ex-officio public offices.

Moreover, while the State policy is to encourage the youth's involvement in public affairs, 36 this policy refers to those who belong
to the class of people defined as the youth. Congress has the power to define who are the youth qualified to join the SK, which
itself is a creation of Congress. Those who do not qualify because they are past the age group defined as the youth cannot insist
on being part of the youth. In government service, once an employee reaches mandatory retirement age, he cannot invoke any
property right to cling to his office. In the same manner, since petitioners are now past the maximum age for membership in the
SK, they cannot invoke any property right to cling to their SK membership.

The petition must also fail because no grave abuse of discretion attended the postponement of the SK elections. RA No. 9164 is
now the law that prescribes the qualifications of candidates and voters for the SK elections. This law also fixes the date of the
SK elections. Petitioners are not even assailing the constitutionality of RA No. 9164. RA No. 9164 enjoys the presumption of
constitutionality and will apply to the July 15, 2002 SK elections.

Petitioners have not shown that the Comelec acted illegally or with grave abuse of discretion in recommending to Congress the
postponement of the SK elections. The very evidence relied upon by petitioners contradict their allegation of illegality. The
evidence consist of the following: (1) Comelec en banc Resolution No. 4763 dated February 5, 2002 that recommended the
postponement of the SK elections to 2003; (2) the letter of then Comelec Chairman Benipayo addressed to the Speaker of the
House of Representatives and the President of the Senate; and (3) the Conference Committee Report consolidating Senate Bill
No. 2050 and House Bill No. 4456.

The Comelec exercised its power and duty to "enforce and administer all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum and recall" 37 and to "recommend to Congress effective measures to minimize election
spending."38 The Comelec's acts enjoy the presumption of regularity in the performance of official duties. 39 These acts cannot
constitute proof, as claimed by petitioners, that there "exists a connivance and conspiracy (among) respondents in contravention
of the present law." As the Court held in Pangkat Laguna v. Comelec,40 the "Comelec, as the government agency tasked with
the enforcement and administration of elections laws, is entitled to the presumption of regularity of official acts with respect to
the elections."

The 1987 Constitution imposes upon the Comelec the duty of enforcing and administering all laws and regulations relative to the
conduct of elections. Petitioners failed to prove that the Comelec committed grave abuse of discretion in recommending to
Congress the postponement of the May 6, 2002 SK elections. The evidence cited by petitioners even establish that the Comelec
has demonstrated an earnest effort to address the practical problems in holding the SK elections on May 6, 2002. The
presumption remains that the decision of the Comelec to recommend to Congress the postponement of the elections was made
in good faith in the regular course of its official duties.

Grave abuse of discretion is such capricious and whimsical exercise of judgment that is patent and gross as to amount to an
evasion of a positive duty or a virtual refusal to perform a duty enjoined by law. 41 Public respondents having acted strictly
pursuant to their constitutional powers and duties, we find no grave abuse of discretion in their assailed acts.
PoliRev Cases 1
Petitioners contend that the postponement of the SK elections would allow the incumbent SK officers to perpetuate themselves
in power, depriving other youths of the opportunity to serve in elective SK positions. This argument deserves scant
consideration. While RA No. 9164 contains a hold-over provision, incumbent SK officials can remain in office only until their
successors have been elected or qualified. On July 15, 2002, when the SK elections are held, the hold-over period expires and
all incumbent SK officials automatically cease to hold their SK offices and their ex-officio public offices.

In sum, petitioners have no personal and substantial interest in maintaining this suit. This petition presents no actual justiciable
controversy. Petitioners do not cite any provision of law that is alleged to be unconstitutional. Lastly, we find no grave abuse of
discretion on the part of public respondents.

WHEREFORE, the petition is DISMISSED for utter lack of merit.

SO ORDERED.
PoliRev Cases 1
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. Nos. L-10360 and L-10433             January 17, 1957

JULIANO A. ALBA, in his capacity as Acting Vice Mayor of Roxas City, petitioner,

vs.
HONORABLE JOSE D. EVANGELISTA, Judge of the Court of First Instance of Capiz and VIVENCIO C.
ALAJAR, respondents.

VIVENCIO C. ALAJAR, petitioner-appellee,
vs.
JULIANO A. ALBA, respondent-appellant.

Nicolas V. Villaruz, Solicitor General Ambrosio Padilla and Solicitor Troadio Quiazon, Jr. for Juliano A. Alba.
Alvarez, Cacnio, Pamatian and Associates, Abeleda and Amores, Antonio J. Beldia, Pedro M. Bermejo, Jose M. F. Belo, Atila R.
Balgos and Alfonso V. Legaspi for Vivencio C. Alajar.

FELIX, J.:

On January 1, 1954, the President of the Philippines appointed Vivencio Alajar as Vice-Mayor of the City of Roxas (Annex D).
He took his oath and assumed office on January 6, 1954; on March 31 of that year, his appointment was confirmed by the
Commission on Appointment (Annex D-1) and he continued holding office until November, 1955, when he received a
communication from Assistant Executive Secretary Enrique C. Quema informing him that the President had designated Juliano
Alba in his stead as Acting Vice-Mayor of the City of Roxas and requesting him to turn over his said office to Mr. Alba effective
immediately. This communication wherein the President directed the writer thereof to convey to Mr. Alajar his appreciation for
the invaluable services he had rendered as Vice-Mayor of the City of Roxas (Annex C), was confirmed by a telegram that Alajar
received from the President dated November 23, 1955 (Annex B).

On the other hand, Executive Secretary Fred Ruiz Castro addressed Juliano A. Alba a communication through the Mayor of the
City of Roxas wherein Alba was informed that the President has designated him as Acting Vice-Mayor of the City of Roxas vice
Vivencio Alajar, and instructed him to qualify and enter upon the performance of the office, furnishing the Commissioner of Civil
Service with the copy of his oath (Annex A). On November 19, 1955, Juliano A. Alba took his oath and assumed office (Annex
A-1).

Not satisfied with the action of the President, Vivencio C. Alajar instituted quo warranto proceedings in the Court of First
Instance of Capiz against Juliano A. Alba (Civil Case No. V-2041), contending:

(a) That he was appointed Vice-Mayor of Roxas City on 1 January 1954 and his appointment was confirmed by the
Commission on Appointments on 31 March 1954 and that on 19 November 1955, Juliano A. Alba usurped the office of
Vice-Mayor of Roxas City;

(b) That there existed no vacancy of said office at the time of the designation by the President of the Philippines of
Juliano A. Alba as Acting Vice-Mayor of Roxas City; and

(c) That there existed no legal cause or reason whatsoever for the removal or disqualification of said Vivencio C. Alajar
by the appointment of Juliano Alba by the President of the Philippines as Acting Vice-Mayor of Roxas City.

After proper proceedings and hearing, the parties submitted the case for decision on the only issue of whether the
alleged removal  of the petitioner and the designation in his place of respondent as Vice-Mayor of Roxas City was legal or illegal.
On this point, the lower court held that the petitioner (Vivencio C. Alajar) was "entitled to remain in office as Vice-Mayor of the
City of Roxas with all the emoluments, rights and privileges appurtenant thereto until he resigns, dies or is removed for cause.
Without costs." (Decision, Annex C).

From this decision, Juliano A. Alba appealed to Us by filing a notice of appeal dated February 3, 1956. Four days later, the
appeal notwithstanding, Vivencio Alajar filed a petition (Annex D) praying for immediate execution of the judgment, and despite
the strong opposition of appellant, the motion was granted by the Court on February 18, 1956 (Annex )E), based on the special
reasons adduced by the petitioner and

Moreover, to uphold the supremacy of the law and constitution, which is the supreme and fundamental authority,
pertinent provisions of which are involved in this case, and considering that the immediate and positive effect of the
motion, if the same is denied, is to prolong the status of the illegality of the appointment of the second appointee and
present incumbent to the position of Vice-Mayor of the City of Roxas and the Question of who is entitled to occupy the
same and to exercise the public function of the office which affects public interest and public service, this Court, if it is to
be consistent with its pronouncement, conclusion or judgment, as it should be, is constrained to grant said motion.

The decision, however, was not executed because the herein petitioner, Juliano A. Alba, brought the matter up to this
Superiority praying:
PoliRev Cases 1
(1) That pending the determination of the validity of the order of immediate execution, a writ of preliminary injunction be
issued, upon previous filing of the bond fixed by this Honorable Court by the herein petitioner, restraining the herein
respondent Vivencio C. Alajar from discharging the duties and functions of the Vice-Mayor of Roxas City in order that
the herein petitioner shall continue unmolested as acting Vice-Mayor of Roxas City until the final determination of the
question of the validity of the order for the immediate execution of the decision of the trial court;

(2) That after hearing, judgment be rendered declaring null and void the order of respondent, Hon. Jose D. Evangelista,
dated 18 February 1956 for the immediate execution of his decision in the Quo Warranto Case (Alajar vs. Alba) on the
ground that the same was improperly issued as there existed no good reason for its issuance as contemplated and
provided by Section 2 of Rule 39 of the Rules of Court.

(3) For such other relief as may be just and equitable in the premises.

In this instance, the Solicitor General requested permission to intervene in the certiorari  case (G.R. No. L-10360), alleging that
the order of immediate execution issued by the trial judge deprived him of the opportunity to be heard and defend the
constitutionality of Republic Act No. 603 in the lower court and he desire to heard by this Court before We proceed to determine
the constitutionality of section 8 of Republic Act No. 603 by the affirmative vote of 8 Justice thereof (section 23, Rule 3 of the
Rules of Court — I Moran, Comments on the Rules of Court, 1953 ed., p. 111). The stand of the Solicitor General is that said
section 8 is constitutional (Article VI, section 1 and Article XII, section 1 of the Constitution of the Philippines; Jover vs. Borra, 49
Off. Gaz., 2765 and enactments of Congress subsequent to the case of Santos vs. Mallare, 48 Off. Gaz., 1793, etc., declaring
certain position to be terminable at the pleasure of the appointing authority — section 2545 Revised Administrative Code;
Commonwealth Act Nos. 39, 51, 520, 547 and 592; Republic Acts Nos. 162, 170, as amended; 179, as amended; 183, 288, as
amended; 305, 306, 327, 328, 521, 523, 525, as amended; 537, and 603) The motion for intervention of the Solicitor General
was granted by this Court.

In the meanwhile, the appeal of Juliano A. Alba in said case V-2041, was given due course and reached this Court. In this
instance the parties have already filed their respective briefs and the case was submitted for decision at the hearing held on
August 3, 1956.

Appellant's counsel maintains that the trial Court erred:

1. In predicating its decision on the mistaken assumption that the petitioner-appellee belongs to the unclassified civil
service, an assumption which begs the very issue; whether the vice-mayor of Roxas City belongs to the unclassified
service as claimed by the petitioner-appellee;

2. In not declaring without the necessity of making a pronouncement of its validity, that section 8 of Republic Act 603
was precisely intended by the Congress to exclude the office of vice-mayor of Roxas City from persons belonging to the
unclassified service under section 671 of the Revised Administrative Code, as amended;

3. In not declaring that in the case of Jover vs. Borra (49 Off. Gaz., 2767) the Supreme Court passed upon the validity
of section 8 of Republic Act No. 603;

4. In holding that the office of vice-mayor of Roxas City is neither primarily confidential nor policy-determining, and

5. In not holding that section 8 of Republic Act No. 603 is a valid exercise of the broad legislative powers vested in the
Congress of the Philippines by our Constitution.

As the petition for certiorari was admitted and given due course by this Court and the writ of preliminary injunction prayed for
was issued, We shall confine ourselves to the statement that appeal from a decision of the Court of First Instance in quo
warranto proceedings is perfected by the mere presentation of the notice of appeal (section 16 and 17, Rule 41 of the Rules of
Court), and from that moment "the trial court losses its jurisdiction over the case, except to issue orders for the protection and
preservation of the rights of the parties which do not involve any matter litigated by the appeal, and to approve compromises
offered by the parties prior to the transmittal of the record on appeal (which is not required in cases of quo warranto) to the
appellate court" (section 9, Rule 41 of the Rules of Court). Hence, in the case at bar, the trial court had no jurisdiction to provide
for the issuance of the writ for the advanced execution of its judgment, as it did by order of February 18, 1956 (Annex E).
Consequently, We have to declare that said order is null and void and of no force and effect and to make permanent the writ of
preliminary injunction We have issued at the instance of the herein petitioner.

We will now consider the merits of respondent's appeal in case G.R. No. L-10433. The solution of the controversy hinges on the
main question at issue, which may be propounded as follows:

Section 8 of Republic Act No. 603 creating the City of Roxas provides that the Vice-Mayor shall be appointed by the
President of the Philippines with the consent of the Commission on Appointments and shall hold office at the pleasure
of the President. In view of this provision of the law, could the President of the Philippines legally replace respondent
Vivencio C. Alajar, with or without cause, by petitioner Juliano A. Alba?

Vivencio C. Alajar and judge Jose D. Evangelista maintain of course the negative side alleging that in the case of De los Santos
vs. Mallare, 48 Off. Gaz., 1791, a similar provision of the Administrative Code which prescribed:

Sec. 2545. Appointment of City Officials. — The President of the Philippines shall appoint, with the consent of the
Commission on Appointments of the Congress of the Philippines, the mayor, the vice-mayor . . . and he may
REMOVE at pleasure any of the said officers  . . .,
PoliRev Cases 1
has been declared incompatible with the constitutional inhibitation that "no officer or employee in the Civil Service shall be
removed or suspended except for cause as provided by law", because the two provisions are mutually repugnant and absolutely
irreconcilable. In express terms, one permits what the other in similar manner prohibits. And the Supreme Court then said "that
the particular provisions of law (section 2545 of the Revised Administrative Code) which gives the Chief Executive power to
remove an officer at pleasure (though not unconstitutional) have been repealed by the Constitutional and ceased to be operative
from the time the latter went into effect."

On the other hand, the Solicitor General in his reply memorandum considers the matter from different angle. The view
expressed by him therein refer to the tenure of office of public officials. We quote from said memorandum the following:

A public office 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
function of government, to be exercised by him for the benefit of the public. The individual so invested is a public officer
(7 Mechem, Public Officers, section 1).

The question is whether an officer appointed for a definite time or during good behaviour, had any vested interest or
contract right in his office, of which Congress could not deprive him. The question is not novel. There seems to be but
little difficulty in deciding that there was no such interest or right (Grenshaw vs. United States, 134, U.S. 99, 104).

xxx     xxx     xxx

Admittedly, the act of Congress in creating a public office, defining its powers, functions and fixing the "term" or the
period during which the officer may claim to hold the office as of right and the "tenure" or the term during which the
incumbent actually holds the office, is a valid and constitutional exercise of legislative power (Article VI, section 1,
Constitution of the Philippines; Jover vs.  Borra, G.R. No. L-6782, July 25, 1953; Nueno vs. Angeles, 76 Phil., 12;
Francia vs.  Pecson and Subido, 47 Off, Gaz., 12 Supp. p. 296). In the exercise of the power, Congress enacted
Republic Act No. 603 on April 11, 1951, creating the City of Roxas and providing, among others for the position of Vice-
Mayor and its tenure or period during which the incumbent Vice-Mayor holds office at the pleasure of the
President (section 8, article II, Republic Act No. 603).

In Jover vs. Borra, supra, this Court through Mr. Justice Padilla, held that:

The legislative intent to provide for a fixed period of office tenure for the Mayor of the City of Iloilo and not to make him
removable at the pleasure of the appointing authority may be inferred from the fact that whereas the appointment of the
Vice-Mayor of the same city, as provided for in an amendatory act (Republic Act No. 365), and those of the Mayors and
Vice-Mayor of other cities (section 2545, Rev. Adm. Code; Commonwealth Acts Nos. 39, 51, 338, 520, 547 and 592;
Republic Acts Nos. 162, 170, as amended, 179, as amended; 183, 288, as amended; 305, 306, 327, 328, 521, 523,
525, as amended; 537 and 603) are at pleasure, that of the Mayor of the City of Iloilo is for a fixed period of time, as
provided for in the original charter (Commonwealth Act No. 57), and in this continued unchanged despite subsequent
amendatory acts (Commonwealth Act No. 158; Republic Act Nos. 276 and 365).

So, the logical inference from the above quoted excerpt of the decision of this Court promulgated long after the decision
rendered in the case of De los Santos vs. Mallare, supra, is that Congress can legally and constitutionally make the
tenure of certain officials dependent upon the pleasure of the President.

xxx     xxx     xxx

The pervading error of the respondents lies in the fact that they insist on the act of the President in designating
petitioner Alba in the place of respondent Alajar as one of removal. The replacement of respondent Alajar is not
removal, but an expiration of  its tenure, which is one of the ordinary modes of terminating official relations. On this
score, section 2545 of the Revised Administrative Code which was declared inoperative in the Santos vs. Mallare case,
is different from section 8 of Republic Act No. 603, Section 2545 refers to removal at pleasure while section 8 of
Republic Act No. 603 refers to holding office at the pleasure of the President.

Clearly, what is involved here is not the question of removal, or whether legal cause should precede or not that removal.
What is involved here is the creation of an office and the tenure of such office, which has been made expressly
dependent upon the pleasure of the President.

The cases relied upon by respondents are, therefore, inopposite to the instant proceedings. For all of them relate
to removal  of officials in violation of laws which prescribed fixity of term.

Even assuming for the moment that the act of replacing Alajar constitute removal, the act itself is valid and lawful, for
under section 8 of Republic Act No. 603, no fixity of tenure has been provided for, and the pleasure of the President has
been exercised in accordance with the policy laid down by Congress therein.

"Thus, in Lacson vs. Roque (49 Off. Gaz., 93, 101-102), this Court made clear that:

The most liberal view that can be taken of the power of the President to remove the Mayor of the City of Manila is that it
must be for cause. Even those who would uphold the legality of the Mayor's suspension do not go so far as to claim
power in the Chief Executive to remove the Mayor at pleasure. Untramelled discretionary power to remove does not
apply to appointed officers whose term of office is definite, much less elective officers. As has been pointedly stated:
"Fixity of tenure destroy the power of removal at pleasure otherwise incident to the appointing power; the reason of this
rule is the evident repugnance between the fixed term and the power of arbitrary removal. . . .
PoliRev Cases 1
An inferential authority to remove at pleasure cannot be declared, since the existence of a defined term, ipso facto,
negatives such an inference, and implies a contrary presumption, i.e., that the incumbent shall hold office to the end of
his term subject to removal for cause. (State ex rel. Gallaghar vs. Brown, 57 Mo. Ap., 302, expressly adopted by the
Supreme Court in State ex rel. vs. Maroney, 191 Mo., 548; etc.)

It is only in those cases in which the office is held at the pleasure of the appointing power and where the power of
removal is exercisable at its mere discretion, that the officer may be removed without notice or hearing.

"Thus, in Jover vs. Borra, supra, the same rule was reiterated:

The legislative intent to provide for a fixed period  of office tenure for the Mayor of the City of Iloilo and not to make him
removable at the pleasure of the appointing authority may be inferred  from the fact that whereas the appointment of the
Vice-Mayor of the same city, as provided for in an amendatory act (Republic Act No. 365), and those of the Mayors and
Vice-Mayor of other cities (section 2545, Revised Administrative Code; Commonwealth Acts Nos. 39, 51, 338, 520, 547
and 592; Republic Acts Nos. 162; 170, as amended; 179, as amended; 183, 288, as amended; 305; 306; 327; 328; 521;
523; 525, as amended; 537; and 603) are at pleasure, that of the Mayor of the City of Iloilo is for a fixed period of time,
as provided for in the original charter (Commonwealth Act No. 57), and this continued unchanged despite subsequent
amendatory acts (Commonwealth Act No. 158; Republic Acts Nos. 276 and 365).

It is an established rule that when the law authorizes a superior officer to remove a subordinate at pleasure his
discretion in the exercise of the power of removal is absolute. As long as the removal is effected in accordance with the
procedure prescribed by law, it may not be declared invalid by the courts, no matter how reprehensible and unjust the
motives of the removal might be (State vs. Kennelly, 55 Atl. 555).

For respondent judge to ignore these judicial doctrines brought to his attention by petitioner Alba even during the quo
warranto proceedings and in the face of their impressive clarity to rashly resolve his doubt against the constitutionality of
section 8 of Republic Act No. 603 is to exert his discretion with the greatest measure of abuse as to amount to lack of
jurisdiction (Abad Santos, vs. Tarlac, 38 Off. Gaz., 830).

After all the foregoing circumstances are found to be present, it must be shown that the statute violates the constitution
clearly, palpably, plainly, and in such manner as to leave no doubt or hesitation in the mind of the court  (Sharpless vs.
Mayor, 21 Pa. 147). The court presume that every statute is valid. This presumption is based upon the theory of
separation of powers which makes the enactment and repeal of laws exclusively a legislative function. As Chief Justice
Marshall said: "It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body, by
which any law is passed, to presume in favor of its validity, until its violation of the constitution is proved beyond all
reasonable doubt." (Darmouth College vs. Woodward, 4 Wheat, 625.)

It should be remembered in this connection that before a legislature passes a bill, it is presumed that it has decided the
measure to be constitutional; and when the executive approves that bill it is also presumed that he has been convinced
of its validity. Under these conditions, therefore, if a statute is reasonably suspectible of two interpretations, one making
it unconstitutional and other valid, it is the duty of the court to adopt the second construction in order to save the
measure. (U.S. vs. Delaware & Hudson Co., 213 U.S. 366.) Sinco, Philippine Political Law, 10 ed., pp. 525-526;
Emphasis supplied.

We certainly agree with the foregoing views of the Solicitor General because they constitute a clear and fair exposition of the law
on the matter. Anyway, the provision of Section 8 of Republic Act No. 603 empowering the President of the Philippine to appoint,
with the consent of the Commission on Appointments, the Vice-Mayor of Roxas City, the latter to hold office at the pleasure of
the President, can not by any stench of imagination he considered unconstitutional and void.

WHEREFORE, on the strenght of the foregoing considerations, and upon declaring the order of the Court of February 18, 1956
(Annex E) null and void and of no effect and upon making permanent the writ of preliminary injunction issued by this Court in the
present case, We hereby dismiss the quo warranto  proceedings, for respondent Vivencio C. Alajar has no right to continue
occupying the office of Vice-Mayor of Roxas City after the President of the Philippines, in the exercise of his power of allowing
said respondent to hold office at his pleasure, displaced him from said office and designated petitioner Juliano A. Alba as Acting
Vice-Mayor of said City. Costs in both cases are taxed against Vivencio C. Alajar.
PoliRev Cases 1
EN BANC

G. R. No. 155027             February 28, 2006

THE VETERANS FEDERATION OF THE PHILIPPINES represented by Esmeraldo R. Acorda, Petitioner,

vs.
Hon. ANGELO T. REYES in his capacity as Secretary of National Defense; and Hon. EDGARDO E. BATENGA in his
capacity as Undersecretary for Civil Relations and Administration of the Department of National Defense, Respondents.

DECISION

CHICO-NAZARIO, J.:

This is a Petition for Certiorari with Prohibition under Rule 65 of the 1997 Rules of Civil Procedure, with a prayer to declare as
void Department Circular No. 04 of the Department of National Defense (DND), dated 10 June 2002.

Petitioner in this case is the Veterans Federation of the Philippines (VFP), a corporate body organized under Republic Act No.
2640, dated 18 June 1960, as amended, and duly registered with the Securities and Exchange Commission. Respondent
Angelo T. Reyes was the Secretary of National Defense (DND Secretary) who issued the assailed Department Circular No. 04,
dated 10 June 2002. Respondent Edgardo E. Batenga was the DND Undersecretary for Civil Relations and Administration who
was tasked by the respondent DND Secretary to conduct an extensive management audit of the records of petitioner.

The factual and procedural antecedents of this case are as follows:

Petitioner VFP was created under Rep. Act No. 2640,1 a statute approved on 18 June 1960.

On 15 April 2002, petitioner’s incumbent president received a letter dated 13 April 2002 which reads:

Col. Emmanuel V. De Ocampo (Ret.)

President

Veterans Federation of the Philippines

Makati, Metro Manila

Dear Col. De Ocampo:

Please be informed that during the preparation of my briefing before the Cabinet and the President last March 9, 2002, we came
across some legal bases which tended to show that there is an organizational and management relationship between Veterans
Federation of the Philippines and the Philippine Veterans Bank which for many years have been inadvertently overlooked.

I refer to Republic Act 2640 creating the body corporate known as the VFP and Republic Act 3518 creating the Phil. Vets [sic]
Bank.

1. RA 2640 dated 18 June 60 Section 1 ... "hereby created a body corporate, under the control and supervision of the
Secretary of National Defense."

2. RA 2640 Section 12 ... "On or before the last day of the month following the end of each fiscal year, the Federation
shall make and transmit to the President of the Philippines or to the Secretary of National Defense, a report of its
proceedings for the past year, including a full, complete and itemized report of receipts and expenditures of whatever
kind."

3. Republic Act 3518 dated 18 June 1963 (An Act Creating the Philippine Veterans Bank, and for Other Purposes)
provides in Section 6 that ... "the affairs and business of the Philippine Veterans Bank shall be directed and its property
managed, controlled and preserved, unless otherwise provided in this Act, by a Board of Directors consisting of eleven
(11) members to be composed of three ex officio members to wit: the Philippine Veterans Administrator, the President
of the Veteran’s Federation of the Philippines and the Secretary of National Defense x x x.

It is therefore in the context of clarification and rectification of what should have been done by the DND (Department of National
Defense) for and about the VFP and PVB that I am requesting appropriate information and report about these two corporate
bodies.

Therefore it may become necessary that a conference with your staffs in these two bodies be set.

Thank you and anticipating your action on this request.

Very truly yours,

(SGD) ANGELO T. REYES

PoliRev Cases 1
[DND] Secretary

On 10 June 2002, respondent DND Secretary issued the assailed DND Department Circular No. 04 entitled, "Further
Implementing the Provisions of Sections 12 and 23 of Republic Act No. 2640," the full text of which appears as follows:

Department of National Defense

Department Circular No. 04

Subject: Further Implementing the Provisions of Sections 1 & 2 of

Republic Act No. 2640

Authority: Republic Act No. 2640

Executive Order No. 292 dated July 25, 1987

Section 1

These rules shall govern and apply to the management and operations of the Veterans Federation of the Philippines (VFP)
within the context provided by EO 292 s-1987.

Section 2 – DEFINITION OF TERMS – for the purpose of these rules, the terms, phrases or words used herein shall, unless the
context indicates otherwise, mean or be understood as follows:

Supervision and Control – it shall include authority to act directly whenever a specific function is entrusted by law or regulation to
a subordinate; direct the performance of a duty; restrain the commission of acts; approve, reverse or modify acts and decisions
of subordinate officials or units; determine priorities in the execution of plans and programs; and prescribe standards, guidelines,
plans and programs.

Power of Control – power to alter, modify, nullify or set aside what a subordinate officer had done in the performance of his
duties and to substitute the judgment of the former to that of the latter.

Supervision – means overseeing or the power of an officer to see to it that their subordinate officers perform their duties; it does
not allow the superior to annul the acts of the subordinate.

Administrative Process – embraces matter concerning the procedure in the disposition of both routine and contested matters,
and the matter in which determinations are made, enforced or reviewed.

Government Agency – as defined under PD 1445, a government agency or agency of government or "agency" refers to any
department, bureau or office of the national government, or any of its branches or instrumentalities, of any political subdivision,
as well as any government owned or controlled corporation, including its subsidiaries, or other self-governing board or
commission of the government.

Government Owned and Controlled Corporation (GOCC) – refer to any agency organized as a stock or non-stock corporation,
vested with functions relating to public needs whether governmental or proprietary in nature, and owned by the government
directly or through its instrumentalities wholly or, where applicable as in the case of stock corporations, to the extent of at least
50% of its capital stock.

Fund – sum of money or other resources set aside for the purpose of carrying out specific activities or attaining certain
objectives in accordance with special regulations, restrictions or limitations and constitutes an independent, fiscal and
accounting entity.

Government Fund – includes public monies of every sort and other resources pertaining to any agency of the government.

Veteran – any person who rendered military service in the land, sea or air forces of the Philippines during the revolution against
Spain, the Philippine American War, World War II, including Filipino citizens who served in Allied Forces in the Philippine
territory and foreign nationals who served in Philippine forces; the Korean campaign, the Vietnam campaign, the Anti-dissidence
campaign, or other wars or military campaigns; or who rendered military service in the Armed Forces of the Philippines and has
been honorably discharged or separated after at least six (6) years total cumulative active service or sooner separated due to
the death or disability arising from a wound or injury received or sickness or disease incurred in line of duty while in the active
service.

Section 3 – Relationship Between the DND and the VFP

3.1 Sec 1 of RA 3140 provides "... the following persons (heads of various veterans associations and organizations in the
Philippines) and their associates and successors are hereby created a body corporate, under the control and supervision of the
Secretary of National Defense, under the name, style and title of "Veterans Federation of the Philippines ..."
PoliRev Cases 1
The Secretary of National Defense shall be charged with the duty of supervising the veterans and allied program under the
jurisdiction of the Department. It shall also have the responsibility of overseeing and ensuring the judicious and effective
implementation of veterans assistance, benefits, and utilization of VFP assets.

3.2 To effectively supervise and control the corporate affairs of the Federation and to safeguard the interests and welfare of the
veterans who are also wards of the State entrusted under the protection of the DND, the Secretary may personally or through a
designated representative, require the submission of reports, documents and other papers regarding any or all of the
Federation’s business transactions particularly those relating to the VFP functions under Section 2 of RA 2640.

The Secretary or his representative may attend conferences of the supreme council of the VFP and such other activities he may
deem relevant.

3.3 The Secretary shall from time to time issue guidelines, directives and other orders governing vital government activities
including, but not limited to, the conduct of elections; the acquisition, management and dispositions of properties, the accounting
of funds, financial interests, stocks and bonds, corporate investments, etc. and such other transactions which may affect the
interests of the veterans.

3.4 Financial transactions of the Federation shall follow the provisions of the government auditing code (PD 1445) i.e.
government funds shall be spent or used for public purposes; trust funds shall be available and may be spent only for the
specific purpose for which the trust was created or the funds received; fiscal responsibility shall, to the greatest extent, be
shared by all those exercising authority over the financial affairs, transactions, and operations of the federation; disbursements
or dispositions of government funds or property shall invariably bear the approval of the proper officials.

Section 4 – Records of the FEDERATION

As a corporate body and in accordance with appropriate laws, it shall keep and carefully preserve records of all business
transactions, minutes of meetings of stockholders/members of the board of directors reflecting all details about such activity.

All such records and minutes shall be open to directors, trustees, stockholders, and other members for inspection and copies of
which may be requested.

As a body corporate, it shall submit the following: annual report; proceedings of council meetings; report of operations together
with financial statement of its assets and liabilities and fund balance per year; statement of revenues and expenses per year;
statement of cash flows per year as certified by the accountant; and other documents/reports as may be necessary or required
by the SND.

Section 5 – Submission of Annual and Periodic Report

As mandated under appropriate laws, the following reports shall be submitted to the SND, to wit:

a. Annual Report to be submitted not later than every January 31 of the following year. Said report shall consist of the
following:

1. Financial Report of the Federation, signed by the Treasurer General and Auditor General;

2. Roster of Members of the Supreme Council;

3. Roster of Members of the Executive Board and National Officers; and

4. Current listing of officers and management of VFP.

b. Report on the proceedings of each Supreme Council Meeting to be submitted not later than one month after the
meeting;

c. Report of the VFP President as may be required by SND or as may be found necessary by the President of the
Federation;

d. Resolutions passed by the Executive Board and the Supreme Council for confirmation to be submitted not later than
one month after the approval of the resolution;

e. After Operation/Activity Reports to be submitted not later than one month after such operation or activity;

Section 6 – Penal Sanctions

As an attached agency to a regular department of the government, the VFP and all its instrumentalities, officials and personnel
shall be subject to the penal provisions of such laws, rules and regulations applicable to the attached agencies of the
government.

In a letter dated 6 August 2002 addressed to the President of petitioner, respondent DND Secretary reiterated his instructions in
his earlier letter of 13 April 2002.
PoliRev Cases 1
Thereafter, petitioner’s President received a letter dated 23 August 2002 from respondent Undersecretary, informing him that
Department Order No. 129 dated 23 August 2002 directed "the conduct of a Management Audit of the Veterans Federation of
the Philippines."4 The letter went on to state that respondent DND Secretary "believes that the mandate given by said law can be
meaningfully exercised if this department can better appreciate the functions, responsibilities and situation on the ground and
this can be done by undertaking a thorough study of the organization." 5

Respondent Undersecretary also requested both for a briefing and for documents on personnel, ongoing projects and
petitioner’s financial condition. The letter ended by stating that, after the briefing, the support staff of the Audit Committee would
begin their work to meet the one-month target within which to submit a report.

A letter dated 28 August 2003 informed petitioner’s President that the Management Audit Group headed by the Undersecretary
would be paying petitioner a visit on 30 August 2002 for an update on VFP’s different affiliates and the financial statement of the
Federation.

Subsequently, the Secretary General of the VFP sent an undated letter to respondent DND Secretary, with notice to respondent
Undersecretary for Civil Relations and Administration, complaining about the alleged broadness of the scope of the
management audit and requesting the suspension thereof until such time that specific areas of the audit shall have been agreed
upon.

The request was, however, denied by the Undersecretary in a letter dated 4 September 2002 on the ground that a specific
timeframe had been set for the activity.

Petitioner thus filed this Petition for Certiorari with Prohibition under Rule 65 of the 1997 Rules of Civil Procedure, praying for the
following reliefs:

1. For this Court to issue a temporary restraining order and a writ of preliminary prohibitory and mandatory injunction to
enjoin respondent Secretary and all those acting under his discretion and authority from: (a) implementing DND
Department Circular No. 04; and (b) continuing with the ongoing management audit of petitioner’s books of account;

2. After hearing the issues on notice –

a. Declare DND Department Circular No. 04 as null and void for being ultra vires;

b. Convert the writ of prohibition, preliminary prohibitory and mandatory injunction into a permanent one. 6

GIVING DUE COURSE TO THE PETITION

Petitioner asserts that, although cases which question the constitutionality or validity of administrative issuances are ordinarily
filed with the lower courts, the urgency and substantive importance of the question on hand and the public interest attendant to
the subject matter of the petition justify its being filed with this Court directly as an original action. 7

It is settled that the Regional Trial Court and the Court of Appeals also exercise original jurisdiction over petitions for certiorari
and prohibition. As we have held in numerous occasions, however, such concurrence of original jurisdiction does not mean that
the party seeking extraordinary writs has the absolute freedom to file his petition in the court of his choice. 8 Thus, in
Commissioner of Internal Revenue v. Leal,9 we held that:

Such concurrence of original jurisdiction among the Regional Trial Court, the Court of Appeals and this Court, however, does not
mean that the party seeking any of the extraordinary writs has the absolute freedom to file his petition in the court of his choice.
The hierarchy of courts in our judicial system determines the appropriate forum for these petitions. Thus, petitions for the
issuance of the said writs against the first level (inferior) courts must be filed with the Regional Trial Court and those against the
latter, with the Court of Appeals. A direct invocation of this Court’s original jurisdiction to issue these writs should be allowed only
where there are special and important reasons therefor, specifically and sufficiently set forth in the petition. This is the
established policy to prevent inordinate demands upon the Court’s time and attention, which are better devoted to matters within
its exclusive jurisdiction, and to prevent further over-crowding of the Court’s docket. Thus, it was proper for petitioner to institute
the special civil action for certiorari with the Court of Appeals assailing the RTC order denying his motion to dismiss based on
lack of jurisdiction.

The petition itself, in this case, does not specifically and sufficiently set forth the special and important reasons why the Court
should give due course to this petition in the first instance, hereby failing to fulfill the conditions set forth in Commissioner of
Internal Revenue v. Leal.10 While we reiterate the policies set forth in Leal and allied cases and continue to abhor the propensity
of a number of litigants to disregard the principle of hierarchy of courts in our judicial system, we, however, resolve to take
judicial notice of the fact that the persons who stand to lose in a possible protracted litigation in this case are war veterans, many
of whom have precious little time left to enjoy the benefits that can be conferred by petitioner corporation. This bickering for the
power over petitioner corporation, an entity created to represent and defend the interests of Filipino veterans, should be resolved
as soon as possible in order for it to once and for all direct its resources to its rightful beneficiaries all over the country. All these
said, we hereby resolve to give due course to this petition.

ISSUES

Petitioner mainly alleges that the rules and guidelines laid down in the assailed Department Circular No. 04 expanded the scope
of "control and supervision" beyond what has been laid down in Rep. Act No. 2640. 11 Petitioner further submits the following
issues to this Court:
PoliRev Cases 1
1. Was the challenged department circular passed in the valid exercise of the respondent Secretary’s "control and
supervision"?

2. Could the challenged department circular validly lay standards classifying the VFP, an essentially civilian
organization, within the ambit of statutes only applying to government entities?

3. Does the department circular, which grants respondent direct management control on the VFP, unduly encroach on
the prerogatives of VFP’s governing body?

At the heart of all these issues and all of petitioner’s prayers and assertions in this case is petitioner’s claim that it is a private
non-government corporation.

CENTRAL ISSUE:

IS THE VFP A PRIVATE CORPORATION?

Petitioner claims that it is not a public nor a governmental entity but a private organization, and advances this claim to prove that
the issuance of DND Department Circular No. 04 is an invalid exercise of respondent Secretary’s control and supervision. 12

This Court has defined the power of control as "the power of an officer to alter or modify or nullify or set aside what a
subordinate has done in the performance of his duties and to substitute the judgment of the former to that of the latter." 13 The
power of supervision, on the other hand, means "overseeing, or the power or authority of an officer to see that subordinate
officers perform their duties. If the latter fail or neglect to fulfill them, the former may take such action or step as prescribed by
law to make them perform their duties."14 These definitions are synonymous with the definitions in the assailed Department
Circular No. 04, while the other provisions of the assailed department circular are mere consequences of control and supervision
as defined.

Thus, in order for petitioner’s premise to be able to support its conclusion, petitioners should be deemed to imply either of the
following: (1) that it is unconstitutional/impermissible for the law (Rep. Act No. 2640) to grant control and/or supervision to the
Secretary of National Defense over a private organization, or (2) that the control and/or supervision that can be granted to the
Secretary of National Defense over a private organization is limited, and is not as strong as they are defined above.

The following provision of the 1935 Constitution, the organic act controlling at the time of the creation of the VFP in 1960, is
relevant:

Section 7. The Congress shall not, except by general law, provide for the formation, organization, or regulation of private
corporations, unless such corporations are owned and controlled by the Government or any subdivision or instrumentality
thereof.15

On the other hand, its counterparts in the 1973 and 1987 constitutions are the following:

Section 4. The National Assembly shall not, except by general law, provide for the formation, organization, or regulation of
private corporations, unless such corporations are owned or controlled by the government or any subdivision or instrumentality
thereof.16

Sec. 16. The Congress shall not, except by general law, provide for the formation, organization, or regulation of private
corporations. Government-owned and controlled corporations may be created or established by special charters in the interest
of the common good and subject to the test of economic viability. 17

From the foregoing, it is crystal clear that our constitutions explicitly prohibit the regulation by special laws of private
corporations, with the exception of government-owned or controlled corporations (GOCCs). Hence, it would be impermissible for
the law to grant control of the VFP to a public official if it were neither a public corporation, an unincorporated governmental
entity, nor a GOCC.18 Said constitutional provisions can even be read to prohibit the creation itself of the VFP if it were neither of
the three mentioned above, but we cannot go into that in this case since there is no challenge to the creation of the VFP in the
petition as to permit this Court from considering its nullity.

Petitioner vigorously argues that the VFP is a private non-government organization, pressing on the following contentions:

1. The VFP does not possess the elements which would qualify it as a public office, particularly the
possession/delegation of a portion of sovereign power of government to be exercised for the benefit of the public;

2. VFP funds are not public funds because –

a) No budgetary appropriations or government funds have been released to the VFP directly or indirectly from
the Department of Budget and Management (DBM);

b) VFP funds come from membership dues;

c) The lease rentals raised from the use of government lands reserved for the VFP are private in character and
do not belong to the government. Said rentals are fruits of VFP’s labor and efforts in managing and
administering the lands for VFP purposes and objectives. A close analogy would be any Filipino citizen settling
PoliRev Cases 1
on government land and who tills the land for his livelihood and sustenance. The fruits of his labor belong to
him and not to the owner of the land. Such fruits are not public funds.

3. Although the juridical personality of the VFP emanates from a statutory charter, the VFP retains its essential
character as a private, civilian federation of veterans voluntarily formed by the veterans themselves to attain a unity of
effort, purpose and objectives, e.g. –

a. The members of the VFP are individual members and retirees from the public and military service;

b. Membership in the VFP is voluntary, not compulsory;

c. The VFP is governed, not by the Civil Service Law, the Articles of War nor the GSIS Law, but by the Labor
Code and the SSS Law;

d. The VFP has its own Constitution and By-Laws and is governed by a Supreme Council who are elected from
and by the members themselves;

4. The Administrative Code of 1987 does not provide that the VFP is an attached agency, nor does it provide that it is
an entity under the control and supervision of the DND in the context of the provisions of said code.

5. The DBM declared that the VFP is a non-government organization and issued a certificate that the VFP has not been
a direct recipient of any funds released by the DBM.

These arguments of petitioner notwithstanding, we are constrained to rule that petitioner is in fact a public corporation. Before
responding to petitioner’s allegations one by one, here are the more evident reasons why the VFP is a public corporation:

(1) Rep. Act No. 2640 is entitled "An Act to Create a Public Corporation to be Known as the Veterans Federation of the
Philippines, Defining its Powers, and for Other Purposes."

(2) Any action or decision of the Federation or of the Supreme Council shall be subject to the approval of the Secretary
of Defense.19

(3) The VFP is required to submit annual reports of its proceedings for the past year, including a full, complete and
itemized report of receipts and expenditures of whatever kind, to the President of the Philippines or to the Secretary of
National Defense.20

(4) Under Executive Order No. 37 dated 2 December 1992, the VFP was listed as among the government-owned and
controlled corporations that will not be privatized.

(5) In Ang Bagong Bayani – OFW Labor Party v. COMELEC, 21 this Court held in a minute resolution that the "VFP
[Veterans Federation Party] is an adjunct of the government, as it is merely an incarnation of the Veterans Federation of
the Philippines.

And now to answer petitioner’s reasons for insisting that it is a private corporation:

1. Petitioner claims that the VFP does not possess the elements which would qualify it as a public office, particularly the
possession/delegation of a portion of sovereign power of government to be exercised for the benefit of the public;

In Laurel v. Desierto,22 we adopted the definition of Mechem of a public office, that 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."

In the same case, we went on to adopt Mechem’s view that the delegation to the individual of some of the sovereign functions of
government is "[t]he most important characteristic" in determining whether a position is a public office or not. 23 Such portion of
the sovereignty of the country, either legislative, executive or judicial, must attach to the office for the time being, to be exercised
for the public benefit. Unless the powers conferred are of this nature, the individual is not a public officer. The most important
characteristic which distinguishes an office from an employment or contract is that the creation and conferring of an office
involves a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of
the public; – that some portion of the sovereignty of the country, either legislative, executive or judicial, attaches, for the time
being, to be exercised for the public benefit. Unless the powers conferred are of this nature, the individual is not a public
officer.24 The issue, therefore, is whether the VFA’s officers have been delegated some portion of the sovereignty of the country,
to be exercised for the public benefit.

In several cases, we have dealt with the issue of whether certain specific activities can be classified as sovereign functions.
These cases, which deal with activities not immediately apparent to be sovereign functions, upheld the public sovereign nature
of operations needed either to promote social justice25 or to stimulate patriotic sentiments and love of country. 26

As regards the promotion of social justice as a sovereign function, we held in Agricultural Credit and Cooperative Financing
Administration (ACCFA) v. Confederation of Unions in Government Corporations and Offices (CUGCO), 27 that the compelling
urgency with which the Constitution speaks of social justice does not leave any doubt that land reform is not an optional but a
compulsory function of sovereignty. The same reason was used in our declaration that socialized housing is likewise a sovereign
function.28 Highly significant here is the observation of former Chief Justice Querube Makalintal:
PoliRev Cases 1
The growing complexities of modern society, however, have rendered this traditional classification of the functions of
government [into constituent and ministrant functions] quite unrealistic, not to say obsolete. The areas which used to be left to
private enterprise and initiative and which the government was called upon to enter optionally, and only "because it was better
equipped to administer for the public welfare than is any private individual or group of individuals," continue to lose their well-
defined boundaries and to be absorbed within activities that the government must undertake in its sovereign capacity if it is to
meet the increasing social challenges of the times. Here[,] as almost everywhere else[,] the tendency is undoubtedly towards a
greater socialization of economic forces. Here, of course, this development was envisioned, indeed adopted as a national policy,
by the Constitution itself in its declaration of principle concerning the promotion of social justice. 29 (Emphasis supplied.)

It was, on the other hand, the fact that the National Centennial Celebrations was calculated to arouse and stimulate patriotic
sentiments and love of country that it was considered as a sovereign function in Laurel v. Desierto. 30 In Laurel, the Court then
took its cue from a similar case in the United States involving a Fourth of July fireworks display. The holding of the Centennial
Celebrations was held to be an executive function, as it was intended to enforce Article XIV of the Constitution which provides
for the conservation, promotion and popularization of the nation’s historical and cultural heritage and resources, and artistic
relations.

In the case at bar, the functions of petitioner corporation enshrined in Section 4 of Rep. Act No. 2640 31 should most certainly fall
within the category of sovereign functions. The protection of the interests of war veterans is not only meant to promote social
justice, but is also intended to reward patriotism. All of the functions in Section 4 concern the well-being of war veterans, our
countrymen who risked their lives and lost their limbs in fighting for and defending our nation. It would be injustice of catastrophic
proportions to say that it is beyond sovereignty’s power to reward the people who defended her.

Like the holding of the National Centennial Celebrations, the functions of the VFP are executive functions, designed to
implement not just the provisions of Rep. Act No. 2640, but also, and more importantly, the Constitutional mandate for the State
to provide immediate and adequate care, benefits and other forms of assistance to war veterans and veterans of military
campaigns, their surviving spouses and orphans.32

2. Petitioner claims that VFP funds are not public funds.

Petitioner claims that its funds are not public funds because no budgetary appropriations or government funds have been
released to the VFP directly or indirectly from the DBM, and because VFP funds come from membership dues and lease rentals
earned from administering government lands reserved for the VFP.

The fact that no budgetary appropriations have been released to the VFP does not prove that it is a private corporation. The
DBM indeed did not see it fit to propose budgetary appropriations to the VFP, having itself believed that the VFP is a private
corporation.33 If the DBM, however, is mistaken as to its conclusion regarding the nature of VFP’s incorporation, its previous
assertions will not prevent future budgetary appropriations to the VFP. The erroneous application of the law by public officers
does not bar a subsequent correct application of the law. 34

Nevertheless, funds in the hands of the VFP from whatever source are public funds, and can be used only for public purposes.
This is mandated by the following provisions of Rep. Act No. 2640:

(1) Section 2 provides that the VFP can only "invest its funds for the exclusive benefit of the Veterans of the
Philippines;"

(2) Section 2 likewise provides that "(a)ny action or decision of the Federation or of the Supreme Council shall be
subject to the approval of the Secretary of National Defense." Hence, all activities of the VFP to which the Supreme
Council can apply its funds are subject to the approval of the Secretary of National Defense;

(3) Section 4 provides that "the Federation shall exist solely for the purposes of a benevolent character, and not for the
pecuniary benefit of its members;"1avvphil.net

(4) Section 6 provides that all funds of the VFP in excess of operating expenses are "reserved for disbursement, as the
Supreme Council may authorize, for the purposes stated in Section two of this Act;"

(5) Section 10 provides that "(a)ny donation or contribution which from time to time may be made to the Federation by
the Government of the Philippines or any of its subdivisions, branches, offices, agencies or instrumentalities shall be
expended by the Supreme Council only for the purposes mentioned in this Act."; and finally,

(6) Section 12 requires the submission of annual reports of VFP proceedings for the past year, including a full, complete
and itemized report of receipts and expenditures of whatever kind, to the President of the Philippines or to the Secretary
of National Defense.

It is important to note here that the membership dues collected from the individual members of VFP’s affiliate organizations do
not become public funds while they are still funds of the affiliate organizations. A close reading of Section 1 35 of Rep. Act No.
2640 reveals that what has been created as a body corporate is not the individual membership of the affiliate organizations, but
merely the aggregation of the heads of the affiliate organizations. Thus, only the money remitted by the affiliate organizations to
the VFP partake in the public nature of the VFP funds.

In Republic v. COCOFED,36 we held that the Coconut Levy Funds are public funds because, inter alia, (1) they were meant to be
for the benefit of the coconut industry, one of the major industries supporting the national economy, and its farmers; and (2) the
very laws governing coconut levies recognize their public character. The same is true with regard to the VFP funds. No less
public is the use for the VFP funds, as such use is limited to the purposes of the VFP which we have ruled to be sovereign
PoliRev Cases 1
functions. Likewise, the law governing VFP funds (Rep. Act No. 2640) recognizes the public character of the funds as shown in
the enumerated provisions above.

We also observed in the same COCOFED case that "(e)ven if the money is allocated for a special purpose and raised by special
means, it is still public in character."37 In the case at bar, some of the funds were raised by even more special means, as the
contributions from affiliate organizations of the VFP can hardly be regarded as enforced contributions as to be considered taxes.
They are more in the nature of donations which have always been recognized as a source of public funding. Affiliate
organizations of the VFP cannot complain of their contributions becoming public funds upon the receipt by the VFP, since they
are presumed aware of the provisions of Rep. Act No. 2640 which not only specifies the exclusive purposes for which VFP funds
can be used, but also provides for the regulation of such funds by the national government through the Secretary of National
Defense. There is nothing wrong, whether legally or morally, from raising revenues through non-traditional methods. As
remarked by Justice Florentino Feliciano in his concurring opinion in Kilosbayan, Incorporated v. Guingona, Jr. 38 where he
explained that the funds raised by the On-line Lottery System were also public in nature, thus:

x x x [T]he more successful the government is in raising revenues by non-traditional methods such as PAGCOR operations and
privatization measures, the lesser will be the pressure upon the traditional sources of public revenues, i.e., the pocket books of
individual taxpayers and importers.

Petitioner additionally harps on the inapplicability of the case of Laurel v. Desierto 39 which was cited by Respondents. Petitioner
claims that among the reasons National Centennial Commission Chair Salvador Laurel was considered a public officer was the
fact that his compensation was derived from public funds. Having ruled that VFP funds from whatever source are public funds,
we can safely conclude that the Supreme Council’s compensation, taken as they are from VFP funds under the term "operating
expenses" in Section 6 of Rep. Act No. 2640, are derived from public funds. The particular nomenclature of the compensation
taken from VFP funds is not even of relevance here. As we said in Laurel concerning compensation as an element of public
office:

Under particular circumstances, "compensation" has been held to include allowance for personal expenses, commissions,
expenses, fees, an honorarium, mileage or traveling expenses, payments for services, restitution or a balancing of accounts,
salary, and wages.40

3. Petitioner argues that it is a civilian federation where membership is voluntary.

Petitioner claims that the Secretary of National Defense "historically did not indulge in the direct or ‘micromanagement’ of the
VFP precisely because it is essentially a civilian organization where membership is voluntary." 41 This reliance of petitioner on
what has "historically" been done is erroneous, since laws are not repealed by disuse, custom, or practice to the
contrary.42 Furthermore, as earlier stated, the erroneous application of the law by public officers does not bar a subsequent
correct application of the law.43

Neither is the civilian nature of VFP relevant in this case. The Constitution does not contain any prohibition, express or implied,
against the grant of control and/or supervision to the Secretary of National Defense over a civilian organization. The Office of the
Secretary of National Defense is itself a civilian office, its occupant being an alter ego of the civilian Commander-in-Chief. This
set-up is the manifestation of the constitutional principle that civilian authority is, at all times, supreme over the military. 44 There
being no such constitutional prohibition, the creation of a civilian public organization by Rep. Act No. 2640 is not rendered invalid
by its being placed under the control and supervision of the Secretary of National Defense.

Petitioner’s stand that the VFP is a private corporation because membership thereto is voluntary is likewise erroneous. As stated
above, the membership of the VFP is not the individual membership of the affiliate organizations, but merely the aggregation of
the heads of such affiliate organizations. These heads forming the VFP then elect the Supreme Council and the other
officers,45 of this public corporation.

4. Petitioner claims that the Administrative Code of 1987 does not provide that the VFP is an attached agency, and nor does it
provide that it is an entity under the control and supervision of the DND in the context of the provisions of said code.

The Administrative Code, by giving definitions of the various entities covered by it, acknowledges that its enumeration is not
exclusive. The Administrative Code could not be said to have repealed nor enormously modified Rep. Act No. 2640 by
implication, as such repeal or enormous modification by implication is not favored in statutory construction. 46

5. Petitioner offers as evidence the DBM opinion that the VFP is a non-government organization in its certification that the VFP
"has not been a direct recipient of any funds released by the DBM."

Respondents claim that the supposed declaration of the DBM that petitioner is a non-government organization is not persuasive,
since DBM is not a quasi-judicial agency. They aver that what we have said of the Bureau of Local Government Finance (BLGF)
in Philippine Long Distance Telephone Company (PLDT) v. City of Davao 47 can be applied to DBM:

In any case, it is contended, the ruling of the Bureau of Local Government Finance (BLGF) that petitioner’s exemption from local
taxes has been restored is a contemporaneous construction of Section 23 [of R.A. No. 7925 and, as such, is entitled to great
weight.

The ruling of the BLGF has been considered in this case. But unlike the Court of Tax Appeals, which is a special court created
for the purpose of reviewing tax cases, the BLGF was created merely to provide consultative services and technical assistance
to local governments and the general public on local taxation and other related matters. Thus, the rule that the "Court will not set
aside conclusions rendered by the CTA, which is, by the very nature of its function, dedicated exclusively to the study and
consideration of tax problems and has necessarily developed an expertise on the subject, unless there has been an abuse or
improvident exercise of authority" cannot apply in the case of the BLGF.
PoliRev Cases 1
On this score, though, we disagree with respondents and hold that the DBM’s appraisal is considered persuasive. Respondents
misread the PLDT case in asserting that only quasi-judicial agencies’ determination can be considered persuasive. What the
PLDT case points out is that, for an administrative agency’s opinion to be persuasive, the administrative agency involved
(whether it has quasi-judicial powers or not) must be an expert in the field they are giving their opinion on.

The DBM is indeed an expert on determining what the various government agencies and corporations are. This determination is
necessary for the DBM to fulfill its mandate:

Sec. 2. Mandate. - The Department shall be responsible for the formulation and implementation of the National Budget with the
goal of attaining our national socio-economic plans and objectives.

The Department shall be responsible for the efficient and sound utilization of government funds and revenues to effectively
achieve our country's development objectives. 48

The persuasiveness of the DBM opinion has, however, been overcome by all the previous explanations we have laid so far. It
has also been eclipsed by another similarly persuasive opinion, that of the Department of National Defense embodied in
Department Circular No. 04. The DND is clearly more of an expert with respect to the determination of the entities under it, and
its Administrative Rules and Regulations are entitled to great respect and have in their favor the presumption of legality. 49

The DBM opinion furthermore suffers from its lack of explanation and justification in the "certification of non-receipt" where said
opinion was given. The DBM has not furnished, in said certification or elsewhere, an explanation for its opinion that VFP is a
non-government organization.

THE FATE OF DEPARTMENT CIRCULAR NO. 04

Our ruling that petitioner is a public corporation is determinative of whether or not we should grant petitioner’s prayer to declare
Department Circular No. 04 void.

Petitioner assails Department Circular No. 04 on the ground that it expanded the scope of control and supervision beyond what
has been laid down in Rep. Act No. 2640. Petitioner alleges that "(t)he equation of the meaning of `control’ and `supervision’ of
the Administrative Code of 1987 as the same `control and supervision’ under Rep. Act No. 2640, takes out the context of the
original legislative intent from the peculiar surrounding circumstances and conditions that brought about the creation of the
VFP."50 Petitioner claims that the VFP "was intended as a self-governing autonomous body with a Supreme Council as
governing authority," and that the assailed circular "pre-empts VFP’s original self-governance and autonomy (in) representing
veterans organizations, and substitutes government discretion and decisions to that of the veterans’ own
determination."51 Petitioner says that the circular’s provisions practically render the Supreme Council inutile, despite its being the
statutory governing body of the VFP.52

As previously mentioned, this Court has defined the power of control as "the power of an officer to alter or modify or nullify or set
aside what a subordinate has done in the performance of his duties and to substitute the judgment of the former to that of the
latter."53 The power of supervision, on the other hand, means "overseeing, or the power or authority of an officer to see that
subordinate officers perform their duties." 54 Under the Administrative Code of 1987:55

Supervision and control shall include the authority to act directly whenever a specific function is entrusted by law or regulation to
a subordinate; direct the performance of duty; restrain the commission of acts; review, approve, reverse or modify acts and
decisions of subordinate officials or units; determine priorities in the execution of plans and programs; and prescribe standards,
guidelines, plans and programs. x x x

The definition of the power of control and supervision under Section 2 of the assailed Department Circular are synonymous with
the foregoing definitions. Consequently, and considering that petitioner is a public corporation, the provisions of the assailed
Department Circular No. 04 did not supplant nor modify the provisions of Republic Act No. 2640, thus not violating the settled
rule that "all such (administrative) issuances must not override, but must remain consistent and in harmony with the law they
seek to apply or implement. Administrative rules and regulations are intended to carry out, neither to supplant nor to modify, the
law."56

Section 3.2 of the assailed department circular, which authorizes the Secretary of National Defense to "x x x personally or
through a designated representative, require the submission of reports, documents and other papers regarding any or all of the
Federation’s business functions, x x x."

as well as Section 3.3 which allows the Secretary of DND to

x x x [F]rom time to time issue guidelines, directives and other orders governing vital government activities including, but not
limited to, the conduct of elections, the acquisition, management and dispositions of properties, the accounting of funds, financial
interests, stocks and bonds, corporate investments, etc. and such other transactions which may affect the interests of the
veterans.

are merely consequences of both the power of control and supervision granted by Rep. Act No. 2640. The power to alter or
modify or nullify or set aside what a subordinate has done in the performance of his duties, or to see to it that subordinate
officers perform their duties in accordance with law, necessarily requires the ability of the superior officer to monitor, as closely
as it desires, the acts of the subordinate.

The same is true with respect to Sections 4 and 5 of the assailed Department Circular No. 04, which requires the preservation of
the records of the Federation and the submission to the Secretary of National Defense of annual and periodic reports.
PoliRev Cases 1
Petitioner likewise claims that the assailed DND Department Circular No. 04 was never published, and hence
void.57 Respondents deny such non-publication. 58

We have put forth both the rule and the exception on the publication of administrative rules and regulations in the case of
Tañada v. Tuvera:59

x x x Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law
pursuant also to a valid delegation.

Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency
and not the public, need not be published. Neither is publication required of the so-called letters of instructions issued by
administrative superiors concerning the rules on guidelines to be followed by their subordinates in the performance of their
duties.

Even assuming that the assailed circular was not published, its validity is not affected by such non-publication for the reason that
its provisions fall under two of the exceptions enumerated in Tañada.

Department Circular No. 04 is an internal regulation. As we have ruled, they are meant to regulate a public corporation under the
control of DND, and not the public in general. As likewise discussed above, what has been created as a body corporate by Rep.
Act No. 2640 is not the individual membership of the affiliate organizations of the VFP, but merely the aggregation of the heads
of the affiliate organizations. Consequently, the individual members of the affiliate organizations, who are not public officers, are
beyond the regulation of the circular.

Sections 2, 3 and 6 of the assailed circular are additionally merely interpretative in nature. They add nothing to the law. They do
not affect the substantial rights of any person, whether party to the case at bar or not. In Sections 2 and 3, control and
supervision are defined, mentioning actions that can be performed as consequences of such control and supervision, but without
specifying the particular actions that shall be rendered to control and supervise the VFP. Section 6, in the same vein, merely
state what the drafters of the circular perceived to be consequences of being an attached agency to a regular department of the
government, enumerating sanctions and remedies provided by law that may be availed of whenever desired.

Petitioner then objects to the implementation of Sec. 3.4 of the assailed Department Circular, which provides that –

3.4 Financial transactions of the Federation shall follow the provisions of the government auditing code (PD 1445) i.e.
government funds shall be spent or used for public purposes; trust funds shall be available and may be spent only for the
specific purpose for which the trust was created or the funds received; fiscal responsibility shall, to the greatest extent, be
shared by all those exercising authority over the financial affairs, transactions, and operations of the federation; disbursements
or dispositions of government funds or property shall invariably bear the approval of the proper officials.

Since we have also previously determined that VFP funds are public funds, there is likewise no reason to declare this provision
invalid. Section 3.4 is correct in requiring the VFP funds to be used for public purposes, but only insofar the term "public
purposes" is construed to mean "public purposes enumerated in Rep. Act No. 2640."

Having in their possession public funds, the officers of the VFP, especially its fiscal officers, must indeed share in the fiscal
responsibility to the greatest extent.

As to petitioner’s allegation that VFP was intended as a self-governing autonomous body with a Supreme Council as governing
authority, we find that the provisions of Rep. Act No. 2640 concerning the control and supervision of the Secretary of National
Defense clearly withholds from the VFP complete autonomy. To say, however, that such provisions render the VFP inutile is an
exaggeration. An office is not rendered inutile by the fact that it is placed under the control of a higher office. These subordinate
offices, such as the executive offices under the control of the President, exercise discretion at the first instance. While their acts
can be altered or even set aside by the superior, these acts are effective and are deemed the acts of the superior until they are
modified. Surely, we cannot say that the offices of all the Department Secretaries are worthless positions.

In sum, the assailed DND Department Circular No. 04 does not supplant nor modify and is, on the contrary, perfectly in
consonance with Rep. Act No. 2640. Petitioner VFP is a public corporation. As such, it can be placed under the control and
supervision of the Secretary of National Defense, who consequently has the power to conduct an extensive management audit
of petitioner corporation.

WHEREFORE, the Petition is hereby DISMISSED for lack of merit. The validity of the Department of National Defense
Department Circular No. 04 is AFFIRMED.

SO ORDERED.
PoliRev Cases 1
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-2971             April 20, 1951

FELICIANO MANIEGO y CATU, petitioner,

vs.
THE PEOPLE OF THE PHILIPPINES, respondent.

Llorente and Yumul for petitioner.

Office of the Solicitor General Felix Bautista Angelo and Solicitor Augusto M. Luciano for respondent.

BENGZON, J.:

This petitioner was convicted, by the Fifth Division of the Court of Appeals, of a violation of article 210 of the Revised Penal
Code. He pleads for acquittal, insisting upon purely legal points.

The facts found by that appellate court are substantially the following:

That on February 27, 1947, the accused, although appointed as a laborer, had been placed in charge of issuing
summons and subpoenas for traffic violations in the Sala of Judge Crisanto Aragon of the Municipal Court of the City of
Manila. It appears furthermore, from the testimony of Clerk of Court Baltazar and Fiscal De la Merced, then Deputy
Fiscal attending to traffic violations, that the accused had been permitted to write motions for dismissal of prescribed
traffic cases against offenders without counsel, and to submit them to the Court for action, without passing through the
regular clerk. On the day in question, Felix Rabia, the complainant herein, appeared and inquired from the accused
about a subpoena that he received. He was informed that it was in connection with a traffic violation for which said
Rabia had been detained and given traffic summons by an American MP. The accused after a short conversation went
to Fiscal De la Merced and informed the Fiscal that the case had already prescribed. The Fiscal having found such to
be the case, instructed the accused that if the traffic violator had no lawyer, he could write the motion for dismissal and
have it signed by the party concerned. This was done by the accused and after the signing by Felix Rabia the matter
was submitted to the Court, which granted the petition for dismissal.

According to Felix Rabia and Agent No. 19 (La forteza) of the National Bureau of Investigation, the accused informed
Rabia that the latter was subject to a fine of P15; that Rabia inquired whether the same could be reduced because he
had no money, and that the accused informed Rabia that he could fix the case if Rabia would pay him P10; which Rabia
did and the accused pocketed. This charged was denied by the accused.

The pertinent portion of article 210 of the Revised Penal Code reads:

Any public officer who shall agree to perform an act constituting a crime, in connection with the performance of his
official duties, in consideration of any offer, promise, gift or present received by such officer, personally or through the
mediation of another, shall suffer the penalty of prision correccional in its minimum and medium periods and fine of not
lees than the value to the penalty corresponding to the crime agreed upon if the same shall have been committed.

If the gift was accepted by the officer in consideration of the execution of an act which does not constitute a crime, and
the officer executed said act, he shall suffer the same penalty provided in the preceding paragraph. . . .

As correctly indicated by counsel for petitioner the four essential elements of the offense are: (1) the the accused is a public
officer within the scope of article 203 of the Revised Penal Code; (2) that the accused received by himself or thru another, some
gift or present, offer or promise; (3) that such gift, present or promises has been given in consideration of his commission of
some crime or any act not constituting a crime; (4) that the crime or act relates to the exercise of the functions of the public
officer.

There can be no question that petitioner was a public officer within the meaning of article 203, which includes all persons "who,
by direct provision of law, popular election or appointment by competent authority, shall take part in the performance of public
functions in the Philippine Government, or shall perform in said government or any of its branches, public duties as an
employee, agent or subordinate official or any rank or class." That definition is quite comprehensive, embracing as it does, every
public servant from the highest to the lowest. For the purposes of the Penal Code, it obliterates the standard distinction in the
law of public officers between "officer" and "employee".

Petitioner, however, contending that the Court of Appeals erred in regarding him as a public officer, expounded and discussed
several grounds arranged under the following hearings:

a. The doctrine of "the temporary performance of public functions by a laborer" should not apply in defendant's case.

b. The overt act imputed on the accused does not constitute a circumstance by which he may be considered a public
official.
PoliRev Cases 1
c. His appointment as laborer came from one source, while the designation and delimitation of the functions of his
appointment came from another source.

After having carefully considered the expository argumentation, we are unconvinced. The law is clear, and we perceive no valid
reason to deny validity to the view entertained by the Spanish Supreme Court that, for the purposes of punishing bribery, the
temporary performance of public functions is sufficient to constitute a person a public official. This opinion, it must be stated, was
followed and applied by the Court of Appeals because the accused, although originally assigned to the preparation of summons
and subpoenas, had been allowed in some instance to prepare motions for dismissal of traffic cases.

And this Tribunal has practically concurred with the Spanish court when it opined 1 that a laborer in the Bureau of Post
temporarily detailed as filer of money orders was a public officer within the meaning of article 203 of the Revised Penal Code.
Indeed, common sense indicates that the receipt of bribe money is just as pernicious when committed by temporary employees
as when committed by permanent officials.

The second essential element has likewise been proven. The Court of Appeals said this petitioner received ten pesos from
Rabia (and pocketed the money) in consideration of his "fixing" Rabia's case, and thereafter he "fixed" it by filing a motion for
dismissal, which was approved in due course.

In connection with the last two elements of the offense, it should be stated that our pronouncements under the first sufficiently
answer petitioner's propositions elaborated in several parts of his brief, revolving around the thesis that since he was a mere
laborer  by appointment he may not be convicted, because the preparation of motions for dismissal is not surely the official
function of a laborer. Enough to recall that although originally appointed as a mere laborer, this defendant was on several
occasions designated or given the work to prepare motions for dismissal. He was consequently temporarily discharging such
public functions. And as in the performance thereof he accepted, even solicited, monetary reward, he certainly guilty as charged.

Wherefore, there being no issue about the penalty imposed, the decision of the Court of Appeals is affirmed in toto. With costs.
PoliRev Cases 1
EN BANC

G.R. No. 147387               December 10, 2003

RODOLFO C. FARIÑAS, MANUEL M. GARCIA, FRANCIS G. ESCUDERO, and AGAPITO A. AQUINO, AS MEMBERS OF
THE HOUSE OF REPRESENTATIVES AND ALSO AS TAXPAYERS, IN THEIR OWN BEHALF AND IN REPRESENTATION
OF THE MEMBERS OF THE MINORITY IN THE HOUSE OF REPRESENTATIVES, petitioners,
vs.
THE EXECUTIVE SECRETARY, COMMISSION ON ELECTIONS, HON. FELICIANO R. BELMONTE, JR., SECRETARY OF
THE INTERIOR AND LOCAL GOVERNMENT, SECRETARY OF THE SENATE, AND SECRETARY GENERAL OF THE
HOUSE OF REPRESENTATIVES, respondents.

x-----------------------x

G.R. No. 152161

CONG. GERRY A. SALAPUDDIN, petitioner,

vs.
COMMISSION ON ELECTIONS, respondent.

DECISION

CALLEJO, SR., J.:

Before the Court are two Petitions under Rule 65 of the Rules of Court, as amended, seeking to declare as unconstitutional
Section 14 of Republic Act No. 9006 (The Fair Election Act), insofar as it expressly repeals Section 67 of Batas Pambansa Blg.
881 (The Omnibus Election Code) which provides:

SEC. 67. Candidates holding elective office. – 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.

The petition for certiorari and prohibition in G.R. No. 147387 was filed by Rodolfo C. Fariñas, Manuel M. Garcia, Francis G.
Escudero and Agapito A. Aquino. At the time of filing of the petition, the petitioners were members of the minority bloc in the
House of Representatives. Impleaded as respondents are: the Executive Secretary, then Speaker of the House of
Representatives Feliciano R. Belmonte, Jr., the Commission on Elections, the Secretary of the Department of the Interior and
Local Government (DILG), the Secretary of the Senate and the Secretary General of the House of Representatives.

The petition for prohibition in G.R. No. 152161 was filed by Gerry A. Salapuddin, then also a member of the House of
Representatives. Impleaded as respondent is the COMELEC.

Legislative History of Republic Act No. 9006

Rep. Act No. 9006, entitled "An Act to Enhance the Holding of Free, Orderly, Honest, Peaceful and Credible Elections through
Fair Election Practices," is a consolidation of the following bills originating from the House of Representatives and the Senate,
respectively:

House Bill (HB) No. 9000 entitled "AN ACT ALLOWING THE USE OF MASS MEDIA FOR ELECTION PROPAGANDA,
AMENDING FOR THE PURPOSE BATAS PAMBANSA BILANG 881, OTHERWISE KNOWN AS THE ‘OMNIBUS ELECTION
CODE,’ AS AMENDED, AND FOR OTHER PURPOSES;" 1

Senate Bill (SB) No. 1742 entitled "AN ACT TO ENHANCE THE HOLDING OF FREE, ORDERLY, HONEST, PEACEFUL, AND
CREDIBLE ELECTIONS THROUGH FAIR ELECTION PRACTICES." 2

A Bicameral Conference Committee, composed of eight members of the Senate 3 and sixteen (16) members of the House of
Representatives,4 was formed to reconcile the conflicting provisions of the House and Senate versions of the bill.

On November 29, 2000, the Bicameral Conference Committee submitted its Report, 5 signed by its members, recommending the
approval of the bill as reconciled and approved by the conferees.

During the plenary session of the House of Representatives on February 5, 2001, Rep. Jacinto V. Paras proposed an
amendment to the Bicameral Conference Committee Report. Rep. Didagen P. Dilangalen raised a point of order commenting
that the House could no longer submit an amendment thereto. Rep. Sergio A.F. Apostol thereupon moved that the House return
the report to the Bicameral Conference Committee in view of the proposed amendment thereto. Rep. Dilangalen expressed his
objection to the proposal. However, upon viva voce voting, the majority of the House approved the return of the report to the
Bicameral Conference Committee for proper action. 6

In view of the proposed amendment, the House of Representatives elected anew its conferees 7 to the Bicameral Conference
Committee.8 Then again, for unclear reasons, upon the motion of Rep. Ignacio R. Bunye, the House elected another set of
conferees9 to the Bicameral Conference Committee.10
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On February 7, 2001, during the plenary session of the House of Representatives, Rep. Bunye moved that the House consider
the Bicameral Conference Committee Report on the contrasting provisions of HB No. 9000 and SB No. 1742. Rep. Dilangalen
observed that the report had been recommitted to the Bicameral Conference Committee. The Chair responded that the
Bicameral Conference Report was a new one, and was a result of the reconvening of a new Bicameral Conference Committee.
Rep. Dilangalen then asked that he be given time to examine the new report. Upon motion of Rep. Apostol, the House deferred
the approval of the report until the other members were given a copy thereof. 11

After taking up other pending matters, the House proceeded to vote on the Bicameral Conference Committee Report on the
disagreeing provisions of HB No. 9000 and SB No. 1742. The House approved the report with 125 affirmative votes, 3 negative
votes and no abstention. In explaining their negative votes, Reps. Fariñas and Garcia expressed their belief that Section 14
thereof was a rider. Even Rep. Escudero, who voted in the affirmative, expressed his doubts on the constitutionality of Section
14. Prior to casting his vote, Rep. Dilangalen observed that no senator signed the Bicameral Conference Committee Report and
asked if this procedure was regular.12

On the same day, the Senate likewise approved the Bicameral Conference Committee Report on the contrasting provisions of
SB No. 1742 and HB No. 9000.

Thereafter, Rep. Act No. 9006 was duly signed by then Senate President Aquilino Pimentel, Jr. and then Speaker of the House
of Representatives Feliciano R. Belmonte, Jr. and was duly certified by the Secretary of the Senate Lutgardo B. Barbo and the
Secretary General of the House of Representatives Robert P. Nazareno as "the consolidation of House Bill No. 9000 and
Senate Bill No. 1742," and "finally passed by both Houses on February 7, 2001."

President Gloria Macapagal-Arroyo signed Rep. Act No. 9006 into law on February 12, 2001.

The Petitioners’ Case

The petitioners now come to the Court alleging in the main that Section 14 of Rep. Act No. 9006, insofar as it repeals Section 67
of the Omnibus Election Code, is unconstitutional for being in violation of Section 26(1), Article VI of the Constitution, requiring
every law to have only one subject which should be expressed in its title.

According to the petitioners, the inclusion of Section 14 repealing Section 67 of the Omnibus Election Code in Rep. Act No. 9006
constitutes a proscribed rider. They point out the dissimilarity in the subject matter of Rep. Act No. 9006, on the one hand, and
Section 67 of the Omnibus Election Code, on the other. Rep. Act No. 9006 primarily deals with the lifting of the ban on the use of
media for election propaganda and the elimination of unfair election practices, while Section 67 of the Omnibus Election Code
imposes a limitation on elective officials who run for an office other than the one they are holding in a permanent capacity by
considering them as ipso facto resigned therefrom upon filing of the certificate of candidacy. The repeal of Section 67 of the
Omnibus Election Code is thus not embraced in the title, nor germane to the subject matter of Rep. Act No. 9006.

The petitioners also assert that Section 14 of Rep. Act No. 9006 violates the equal protection clause of the Constitution because
it repeals Section 67 only of the Omnibus Election Code, leaving intact Section 66 thereof which imposes a similar limitation to
appointive officials, thus:

SEC. 66. Candidates holding appointive office or position. – Any person holding a public appointive 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.

They contend that Section 14 of Rep. Act No. 9006 discriminates against appointive officials. By the repeal of Section 67, an
elective official who runs for office other than the one which he is holding is no longer considered ipso facto resigned therefrom
upon filing his certificate of candidacy. Elective officials continue in public office even as they campaign for reelection or election
for another elective position. On the other hand, Section 66 has been retained; thus, the limitation on appointive officials remains
- they are still considered ipso facto resigned from their offices upon the filing of their certificates of candidacy.

The petitioners assert that Rep. Act No. 9006 is null and void in its entirety as irregularities attended its enactment into law. The
law, not only Section 14 thereof, should be declared null and void. Even Section 16 of the law which provides that "[t]his Act
shall take effect upon its approval" is a violation of the due process clause of the Constitution, as well as jurisprudence, which
require publication of the law before it becomes effective.

Finally, the petitioners maintain that Section 67 of the Omnibus Election Code is a good law; hence, should not have been
repealed. The petitioners cited the ruling of the Court in Dimaporo v. Mitra, Jr., 13 that Section 67 of the Omnibus Election Code is
based on the constitutional mandate on the "Accountability of Public Officers:" 14

Sec. 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them
with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives.

Consequently, the respondents Speaker and Secretary General of the House of Representatives acted with grave abuse of
discretion amounting to excess or lack of jurisdiction for not considering those members of the House who ran for a seat in the
Senate during the May 14, 2001 elections as ipso facto resigned therefrom, upon the filing of their respective certificates of
candidacy.

The Respondents’ Arguments

For their part, the respondents, through the Office of the Solicitor General, urge this Court to dismiss the petitions contending,
preliminarily, that the petitioners have no legal standing to institute the present suit. Except for the fact that their negative votes
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were overruled by the majority of the members of the House of Representatives, the petitioners have not shown that they have
suffered harm as a result of the passage of Rep. Act No. 9006. Neither do petitioners have any interest as taxpayers since the
assailed statute does not involve the exercise by Congress of its taxing or spending power.

Invoking the "enrolled bill" doctrine, the respondents refute the petitioners’ allegations that "irregularities" attended the
enactment of Rep. Act No. 9006. The signatures of the Senate President and the Speaker of the House, appearing on the bill
and the certification signed by the respective Secretaries of both houses of Congress, constitute proof beyond cavil that the bill
was duly enacted into law.

The respondents contend that Section 14 of Rep. Act No. 9006, as it repeals Section 67 of the Omnibus Election Code, is not a
proscribed rider nor does it violate Section 26(1) of Article VI of the Constitution. The title of Rep. Act No. 9006, "An Act to
Enhance the Holding of Free, Orderly, Honest, Peaceful and Credible Elections through Fair Election Practices," is so broad that
it encompasses all the processes involved in an election exercise, including the filing of certificates of candidacy by elective
officials.

They argue that the repeal of Section 67 is germane to the general subject of Rep. Act No. 9006 as expressed in its title as it
eliminates the effect of prematurely terminating the term of an elective official by his filing of a certificate of candidacy for an
office other than the one which he is permanently holding, such that he is no longer considered ipso facto resigned therefrom.
The legislature, by including the repeal of Section 67 of the Omnibus Election Code in Rep. Act No. 9006, has deemed it fit to
remove the "unfairness" of considering an elective official ipso facto resigned from his office upon the filing of his certificate of
candidacy for another elective office. With the repeal of Section 67, all elective officials are now placed on equal footing as they
are allowed to finish their respective terms even if they run for any office, whether the presidency, vice-presidency or other
elective positions, other than the one they are holding in a permanent capacity.

The respondents assert that the repeal of Section 67 of the Omnibus Election Code need not be expressly stated in the title of
Rep. Act No. 9006 as the legislature is not required to make the title of the act a complete index of its contents. It must be
deemed sufficient that the title be comprehensive enough reasonably to include the general subject which the statute seeks to
effect without expressing each and every means necessary for its accomplishment. Section 26(1) of Article VI of the Constitution
merely calls for all the parts of an act relating to its subject to find expression in its title. Mere details need not be set forth.

According to the respondents, Section 14 of Rep. Act No. 9006, insofar as it repeals Section 67, leaving Section 66 of the
Omnibus Election Code intact and effective, does not violate the equal protection clause of the Constitution. Section 67 pertains
to elective officials while Section 66 pertains to appointive officials. A substantial distinction exists between these two sets of
officials; elective officials occupy their office by virtue of their mandate based upon the popular will, while the appointive officials
are not elected by popular will. The latter cannot, therefore, be similarly treated as the former. Equal protection simply requires
that all persons or things similarly situated are treated alike, both as to rights conferred and responsibilities imposed.

Further, Section 16, or the "Effectivity" clause, of Rep. Act No. 9006 does not run afoul of the due process clause of the
Constitution as it does not entail any arbitrary deprivation of life, liberty and property. Specifically, the section providing for
penalties in cases of violations thereof presume that the formalities of the law would be observed, i.e., charges would first be
filed, and the accused would be entitled to a hearing before judgment is rendered by a court having jurisdiction. In any case, the
issue about lack of due process is premature as no one has, as yet, been charged with violation of Rep. Act No. 9006.

Finally, the respondents submit that the respondents Speaker and Secretary General of the House of Representatives did not
commit grave abuse of discretion in not excluding from the Rolls those members thereof who ran for the Senate during the May
14, 2001 elections. These respondents merely complied with Rep. Act No. 9006, which enjoys the presumption of validity until
declared otherwise by the Court.

The Court’s Ruling

Before resolving the petitions on their merits, the Court shall first rule on the procedural issue raised by the respondents, i.e.,
whether the petitioners have the legal standing or locus standi to file the petitions at bar.

The petitions were filed by the petitioners in their capacities as members of the House of Representatives, and as taxpayers and
registered voters.

Generally, a party who impugns the validity of a statute must have a personal and substantial interest in the case such that he
has sustained, or will sustain, direct injury as a result of its enforcement. 15 The rationale for requiring a party who challenges the
constitutionality of a statute to allege such a personal stake in the outcome of the controversy is "to assure that concrete
adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult
constitutional questions."16

However, being merely a matter of procedure, this Court, in several cases involving issues of "overarching significance to our
society,"17 had adopted a liberal stance on standing. Thus, in Tatad v. Secretary of the Department of Energy, 18 this Court
brushed aside the procedural requirement of standing, took cognizance of, and subsequently granted, the petitions separately
filed by then Senator Francisco Tatad and several members of the House of Representatives assailing the constitutionality of
Rep. Act No. 8180 (An Act Deregulating the Downstream Oil Industry and For Other Purposes).

The Court likewise took cognizance of the petition filed by then members of the House of Representatives which impugned as
unconstitutional the validity of a provision of Rep. Act No. 6734 (Organic Act for the Autonomous Region in Muslim Mindanao) in
Chiongbian v. Orbos.19 Similarly, the Court took cognizance of the petition filed by then members of the Senate, joined by other
petitioners, which challenged the validity of Rep. Act No. 7716 (Expanded Value Added Tax Law) in Tolentino v. Secretary of
Finance.20
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Members of Congress, such as the petitioners, were likewise allowed by this Court to challenge the validity of acts, decisions,
rulings, or orders of various government agencies or instrumentalities in Del Mar v. Philippine Amusement and Gaming
Corporation,21 Kilosbayan, Inc. v. Guingona, Jr.,22 Philippine Constitution Association v. Enriquez,23 Albano v. Reyes,24 and
Bagatsing v. Committee on Privatization.25

Certainly, the principal issue posed by the petitions, i.e., whether Section 67 of the Omnibus Election Code, which this Court had
declared in Dimaporo26 as deriving its existence from the constitutional provision on accountability of public officers, has been
validly repealed by Section 14 of Rep. Act No. 9006, is one of "overarching significance" that justifies this Court’s adoption of a
liberal stance vis-à-vis the procedural matter on standing. Moreover, with the national elections barely seven months away, it
behooves the Court to confront the issue now and resolve the same forthrightly. The following pronouncement of the Court is
quite apropos:

... All await the decision of this Court on the constitutional question. Considering, therefore, the importance which the instant
case has assumed and to prevent multiplicity of suits, strong reasons of public policy demand that [its] constitutionality . . . be
now resolved. It may likewise be added that the exceptional character of the situation that confronts us, the paramount public
interest, and the undeniable necessity for a ruling, the national elections beings barely six months away, reinforce our stand. 27

Every statute is presumed valid.28 The presumption is that the legislature intended to enact a valid, sensible and just law and one
which operates no further than may be necessary to effectuate the specific purpose of the law. 29

It is equally well-established, however, that the courts, as guardians of the Constitution, have the inherent authority to determine
whether a statute enacted by the legislature transcends the limit imposed by the fundamental law. 30 And where the acts of the
other branches of government run afoul of the Constitution, it is the judiciary’s solemn and sacred duty to nullify the same. 31

Proceeding from these guideposts, the Court shall now resolve the substantial issues raised by the petitions.

Section 14 of Rep. Act No. 9006 Is Not a Rider32

At the core of the controversy is Section 14, the repealing clause of Rep. Act No. 9006, which provides:

Sec. 14. Sections 67 and 85 of the Omnibus Election Code (Batas Pambansa Blg. 881) and Sections 10 and 11 of Republic Act
No. 6646 are hereby repealed. As a consequence, the first proviso in the third paragraph of Section 11 of Republic Act No. 8436
is rendered ineffective. All laws, presidential decrees, executive orders, rules and regulations, or any part thereof inconsistent
with the provisions of this Act are hereby repealed or modified or amended accordingly.

The repealed provision, Section 67 of the Omnibus Election Code, quoted earlier, reads:

SEC. 67. Candidates holding elective office. – 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.

Section 26(1), Article VI of the Constitution provides:

SEC. 26 (1). Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof.

The proscription is aimed against the evils of the so-called omnibus bills and log-rolling legislation as well as surreptitious and/or
unconsidered encroaches. The provision merely calls for all parts of an act relating to its subject finding expression in its title. 33

To determine whether there has been compliance with the constitutional requirement that the subject of an act shall be
expressed in its title, the Court laid down the rule that –

Constitutional provisions relating to the subject matter and titles of statutes should not be so narrowly construed as to cripple or
impede the power of legislation. The requirement that the subject of an act shall be expressed in its title should receive a
reasonable and not a technical construction. It is sufficient if the title be comprehensive enough reasonably to include the
general object which a statute seeks to effect, without expressing each and every end and means necessary or convenient for
the accomplishing of that object. Mere details need not be set forth. The title need not be an abstract or index of the Act. 34

The title of Rep. Act No. 9006 reads: "An Act to Enhance the Holding of Free, Orderly, Honest, Peaceful and Credible Elections
through Fair Election Practices." Section 2 of the law provides not only the declaration of principles but also the objectives
thereof:

Sec. 2. Declaration of Principles. – The State shall, during the election period, supervise or regulate the enjoyment or utilization
of all franchises or permits for the operation of media of communication or information to guarantee or ensure equal opportunity
for public service, including access to media time and space, and the equitable right to reply, for public information campaigns
and fora among candidates and assure free, orderly, honest, peaceful and credible elections.

The State shall ensure that bona fide candidates for any public office shall be free from any form of harassment and
discrimination.35

The Court is convinced that the title and the objectives of Rep. Act No. 9006 are comprehensive enough to include the repeal of
Section 67 of the Omnibus Election Code within its contemplation. To require that the said repeal of Section 67 of the Code be
expressed in the title is to insist that the title be a complete index of its content. 36
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The purported dissimilarity of Section 67 of the Omnibus Election Code, which imposes a limitation on elective officials who run
for an office other than the one they are holding, to the other provisions of Rep. Act No. 9006, which deal with the lifting of the
ban on the use of media for election propaganda, does not violate the "one subject-one title" rule. This Court has held that an act
having a single general subject, indicated in the title, may contain any number of provisions, no matter how diverse they may be,
so long as they are not inconsistent with or foreign to the general subject, and may be considered in furtherance of such subject
by providing for the method and means of carrying out the general subject. 37

The deliberations of the Bicameral Conference Committee on the particular matter are particularly instructive:

SEN. LEGARDA-LEVISTE:

Yes, Mr. Chairman, I just wanted to clarify.

So all we’re looking for now is an appropriate title to make it broader so that it would cover this provision [referring to the repeal
of Section 67 of the Omnibus Election Code], is that correct? That’s all. Because I believe ...

THE CHAIRMAN (REP. SYJUCO):

We are looking for an appropriate coverage which will result in the nomenclature or title.

SEN. LEGARDA-LEVISTE:

Because I really do not believe that it is out of place. I think that even with the term "fair election practice," it really covers it,
because as expressed by Senator Roco, those conditions inserted earlier seemed unfair and it is an election practice and,
therefore, I think, I’m very comfortable with the title "Fair Election Practice" so that we can get over with these things so that we
don’t come back again until we find the title. I mean, it’s one provision which I think is fair for everybody. It may seem like a
limitation but this limitation actually provides for fairness in election practices as the title implies.

THE CHAIRMAN (REP. SYJUCO):

Yes.

SEN. LEGARDA-LEVISTE:

So I would want to beg the House contingent, let’s get it over with. To me, ha, it’s not a very touchy issue. For me, it’s even a
very correct provision. I feel very comfortable with it and it was voted in the Senate, at least, so I would like to appeal to the ...
para matapos na, then we come back as a Bicam just for the title Is that what you’re ...?

THE CHAIRMAN (REP. SYJUCO):

It’s not the title per se, it’s the coverage. So if you will just kindly bear with us. I’m happy that there is already one comfortable
senator there among ... several of us were also comfortable with it. But it would be well that when we rise from this Bicam that
we’re all comfortable with it.

THE CHAIRMAN (SEN. ROCO):

Yes. Anyway, let’s listen to Congressman Marcos.

REP. MARCOS:

Mr. Chairman, may I just make the observation that although it is true that the bulk of provisions deals with the area of
propaganda and political advertising, the complete title is actually one that indulge full coverage. It says "An Act to enhance the
holding of free, orderly, honest ... elections through fair election practices." But as you said, we will put that aside to discuss later
one.

Secondly, I think the Declaration of Principles contained in Section 2, paragraph 2 is perfectly adequate in that it says that it shall
ensure candidates for public office that may be free from any form of harassment and discrimination.

Surely this provision in Section 67 of the old Election Code of the existing Omnibus Election Code is a form of harassment or
discrimination. And so I think that in the effort at leveling the playing field, we can cover this and it should not be considered a
rider.

SEN. LEGARDA-LEVISTE:

I agree, Mr. Chairman. I think the Congresswoman from Ilocos had very clearly put it, that it is covered in the Declaration of
Principles and in the objective of this bill. And therefore, I hope that the House contingent would agree to this so that we can
finish it now. And it expressly provides for fair election practices because ...

THE CHAIRMAN (SEN. ROCO):

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Yeah, I think what is on the table is that we are not disputing this, but we are looking for a title that is more generic so that then
we have less of an objection on constitutionality. I think that’s the theory. So, there is acceptance of this.

Maybe we should not call it na limitation on elected officials. Maybe we should say the special provision on elected officials. So
how is that? Alam mo ito ...

REP. MARCOS:

I think we just change the Section 1, the short title.

THE CHAIRMAN (SEN. ROCO):

Also, Then we say - - on the short title of the Act, we say ...

REP. MARCOS:

What if we say fair election practices? Maybe that should be changed...

THE CHAIRMAN (SEN. ROCO):

O, sige, fine, fine. Let’s a brainstorm. Equal...

REP. PADILLA:

Mr. Chairman, why don’t we use "An Act rationalizing the holding of free, orderly, honest, peaceful and credible elections,
amending for the purpose Batasang Pambansa known as the Omnibus Election Code?"

THE CHAIRMAN (SEN. ROCO):

Why don’t we remove "fair" and then this shall be cited as Election Practices Act?"

REP. PICHAY:

That’s not an election practice. That’s a limitation.

THE CHAIRMAN (SEN. ROCO):

Ah - - - ayaw mo iyong practice. O, give me another noun.

REP. MARCOS:

The Fair Election.

THE CHAIRMAN (SEN. ROCO):

O, Fair Election Act.

REP. MACARAMBON:

Nagbi-brainstorm tayo dito, eh. How about if we change the title to enhance the holding of free, orderly, honest, peaceful and
ensure equal opportunity for public service through fair election practices?

REP. PICHAY:

Fair election practices?

REP. MACARAMBON:

Yeah. To ensure equal opportunity for public service through fair ...

THE CHAIRMAN (SEN. ROCO):

Wala nang practices nga.

REP. PICHAY:

Wala nang practices.

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THE CHAIRMAN (SEN. ROCO):

It shall be cited as Fair Election Act.

(Informal discussions)

REP. PICHAY:

Approve na iyan.

THE CHAIRMAN (SEN. ROCO):

Done. So, okay na iyon. The title will be "Fair Election Act."

The rest wala nang problema ano?

VOICES:

Wala na.

REP. MACARAMBON:

Wala na iyong practices?

THE CHAIRMAN (SEN. ROCO):

Wala na, wala na. Mahina tayo sa practice, eh.

O, wala na? We will clean up.

REP. MARCOS:

Title?

THE CHAIRMAN (SEN. ROCO):

The short title, "This Act ..."

THE CHAIRMAN (REP. SYJUCO):

You’re back to your No. 21 already.

REP. MARCOS:

The full title, the same?

THE CHAIRMAN (SEN. ROCO):

Iyon na nga. The full title is "An Act to enhance the holding ..." That’s the House version, eh, dahil pareho, hindi ba? Then the
short title "This Act shall be known as the Fair Election Act." 38

The legislators considered Section 67 of the Omnibus Election Code as a form of harassment or discrimination that had to be
done away with and repealed. The executive department found cause with Congress when the President of the Philippines
signed the measure into law. For sure, some sectors of society and in government may believe that the repeal of Section 67 is
bad policy as it would encourage political adventurism. But policy matters are not the concern of the Court. Government policy is
within the exclusive dominion of the political branches of the government. 39 It is not for this Court to look into the wisdom or
propriety of legislative determination. Indeed, whether an enactment is wise or unwise, whether it is based on sound economic
theory, whether it is the best means to achieve the desired results, whether, in short, the legislative discretion within its
prescribed limits should be exercised in a particular manner are matters for the judgment of the legislature, and the serious
conflict of opinions does not suffice to bring them within the range of judicial cognizance. 40 Congress is not precluded from
repealing Section 67 by the ruling of the Court in Dimaporo v. Mitra 41 upholding the validity of the provision and by its
pronouncement in the same case that the provision has a laudable purpose. Over time, Congress may find it imperative to
repeal the law on its belief that the election process is thereby enhanced and the paramount objective of election laws – the fair,
honest and orderly election of truly deserving members of Congress – is achieved.

Moreover, the avowed purpose of the constitutional directive that the subject of a bill should be embraced in its title is to apprise
the legislators of the purposes, the nature and scope of its provisions, and prevent the enactment into law of matters which have
not received the notice, action and study of the legislators and the public. 42 In this case, it cannot be claimed that the legislators
were not apprised of the repeal of Section 67 of the Omnibus Election Code as the same was amply and comprehensively
deliberated upon by the members of the House. In fact, the petitioners, as members of the House of Representatives, expressed
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their reservations regarding its validity prior to casting their votes. Undoubtedly, the legislators were aware of the existence of
the provision repealing Section 67 of the Omnibus Election Code.

Section 14 of Rep. Act No. 9006

Is Not Violative of the Equal
Protection Clause of the Constitution43

The petitioners’ contention, that the repeal of Section 67 of the Omnibus Election Code pertaining to elective officials gives
undue benefit to such officials as against the appointive ones and violates the equal protection clause of the constitution, is
tenuous.

The equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable classification. If the
groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated
differently from the other.44 The Court has explained the nature of the equal protection guarantee in this manner:

The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or
the oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to which it is directed or
by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons
shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal
protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies
alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such
class and those who do not.45

Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of
the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon
stringent conditions.46 On the other hand, appointive officials hold their office by virtue of their designation thereto by an
appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of
tenure47 while others serve at the pleasure of the appointing authority. 48

Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8, Title I, Subsection A. Civil
Service Commission, Book V of the Administrative Code of 1987 (Executive Order No. 292), appointive officials, as officers and
employees in the civil service, are strictly prohibited from engaging in any partisan political activity or take part in any election
except to vote. Under the same provision, elective officials, or officers or employees holding political offices, are obviously
expressly allowed to take part in political and electoral activities. 49

By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators deemed it proper to treat these
two classes of officials differently with respect to the effect on their tenure in the office of the filing of the certificates of candidacy
for any position other than those occupied by them. Again, it is not within the power of the Court to pass upon or look into the
wisdom of this classification.

Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis-a-vis appointive officials, is anchored
upon material and significant distinctions and all the persons belonging under the same classification are similarly treated, the
equal protection clause of the Constitution is, thus, not infringed.

The Enrolled Bill Doctrine

Is Applicable In this Case

Not content with their plea for the nullification of Section 14 of Rep. Act No. 9006, the petitioners insist that the entire law should
be nullified. They contend that irregularities attended the passage of the said law particularly in the House of Representatives
catalogued thus:

a. Creation of two (2) sets of BCC (Bicameral Conference Committee) members by the House during its session on
February 5, 2001;

b. No communication from the Senate for a conference on the compromise bill submitted by the BCC on November 29,
2000;

c. The new Report submitted by the 2nd/3rd BCC was presented for approval on the floor without copies thereof being
furnished the members;

d. The 2nd/3rd BCC has no record of its proceedings, and the Report submitted by it was not signed by the Chairman
(Sen. Roco) thereof as well as its senator-members at the time it was presented to and rammed for approval by the
House;

e. There was no meeting actually conducted by the 2nd/3rd BCC and that its alleged Report was instantly made and
passed around for the signature of the BCC members;

f. The Senate has no record of the creation of a 2nd BCC but only of the first one that convened on November 23, 2000;

g. The "Effectivity" clauses of SB No. 1741 and HB No. 9000, as well as that of the compromise bill submitted by the
BCC that convened on November 20, 2000, were couched in terms that comply with the publication required by the Civil
Code and jurisprudence, to wit:
PoliRev Cases 1
...

However, it was surreptitiously replaced in its final form as it appears in § 16, R.A. No. 9006, with the provision that "This Act
shall take effect immediately upon its approval;"

h. The copy of the compromise bill submitted by the 2nd/3rd BCC that was furnished the members during its
consideration on February 7, 2001, did not have the same § 16 as it now appears in RA No. 9006, but § 16 of the
compromise bill, HB 9000 and SB 1742, reasons for which no objection thereto was made;

i. The alleged BCC Report presented to the House on February 7, 2001, did not "contain a detailed, sufficiently explicit
statement of the changes in or amendments to the subject measure;" and

j. The disappearance of the "Cayetano amendment," which is Section 12 of the compromise bill submitted by the BCC.
In fact, this was the subject of the purported proposed amendment to the compromise bill of Member Paras as stated in
paragraph 7 hereof. The said provision states, thusly:

Sec. 12. Limitation on Elected Officials. – Any elected official who runs for president and vice-president shall be considered ipso
facto resigned from his office upon the filing of the certificate of candidacy. 50

The petitioners, thus, urge the Court to go behind the enrolled copy of the bill. The Court is not persuaded. Under the "enrolled
bill doctrine," the signing of a bill by the Speaker of the House and the Senate President and the certification of the Secretaries
of both Houses of Congress that it was passed are conclusive of its due enactment. A review of cases 51 reveals the Court’s
consistent adherence to the rule. The Court finds no reason to deviate from the salutary rule in this case where the irregularities
alleged by the petitioners mostly involved the internal rules of Congress, e.g., creation of the 2nd or 3rd Bicameral Conference
Committee by the House. This Court is not the proper forum for the enforcement of these internal rules of Congress, whether
House or Senate. Parliamentary rules are merely procedural and with their observance the courts have no concern. 52 Whatever
doubts there may be as to the formal validity of Rep. Act No. 9006 must be resolved in its favor. The Court reiterates its ruling
in Arroyo v. De Venecia,53 viz.:

But the cases, both here and abroad, in varying forms of expression, all deny to the courts the power to inquire into allegations
that, in enacting a law, a House of Congress failed to comply with its own rules, in the absence of showing that there was a
violation of a constitutional provision or the rights of private individuals. In Osmeña v. Pendatun, it was held: "At any rate, courts
have declared that ‘the rules adopted by deliberative bodies are subject to revocation, modification or waiver at the pleasure of
the body adopting them.’ And it has been said that ‘Parliamentary rules are merely procedural, and with their observance, the
courts have no concern. They may be waived or disregarded by the legislative body.’ Consequently, ‘mere failure to conform to
parliamentary usage will not invalidate the action (taken by a deliberative body) when the requisite number of members have
agreed to a particular measure.’"

The Effectivity Clause

Is Defective

Finally, the "Effectivity" clause (Section 16) of Rep. Act No. 9006 which provides that it "shall take effect immediately upon its
approval," is defective. However, the same does not render the entire law invalid. In Tañada v. Tuvera, 54 this Court laid down the
rule:

... the clause "unless it is otherwise provided" refers to the date of effectivity and not to the requirement of publication itself,
which cannot in any event be omitted. This clause does not mean that the legislator may make the law effective immediately
upon approval, or on any other date without its previous publication.

Publication is indispensable in every case, but the legislature may in its discretion provide that the usual fifteen-period shall be
shortened or extended….55

Following Article 2 of the Civil Code56 and the doctrine enunciated in Tañada, Rep. Act No. 9006, notwithstanding its express
statement, took effect fifteen days after its publication in the Official Gazette or a newspaper of general circulation.

In conclusion, it bears reiterating that one of the firmly entrenched principles in constitutional law is that the courts do not involve
themselves with nor delve into the policy or wisdom of a statute. That is the exclusive concern of the legislative branch of the
government. When the validity of a statute is challenged on constitutional grounds, the sole function of the court is to determine
whether it transcends constitutional limitations or the limits of legislative power. 57 No such transgression has been shown in this
case.

WHEREFORE, the petitions are DISMISSED. No pronouncement as to costs.

SO ORDERED.
PoliRev Cases 1
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 92008 July 30, 1990

RAMON P. BINAMIRA, petitioner,
vs.
PETER D. GARRUCHO, JR., respondent.

Ledesma, Saludo & Associates for petitioner.

CRUZ, J.:

In this petition for quo warranto, Ramon P. Binamira seeks reinstatement to the office of General Manager of the Philippine
Tourism Authority from which he claims to have been removed without just cause in violation of his security of tenure.

The petitioner bases his claim on the following communication addressed to him by the Minister of Tourism on April 7, 1986:

MEMORANDUM TO: MR. RAMON P. BINAMIRA

You are hereby designated General Manager of the Philippine Tourism Authority, effective immediately.

By virtue hereof, you may qualify and enter upon the performance of the duties of the office.

(Sgd.) JOSE ANTONIO GONZALES Minister of Tourism and Chairman, P.T.A. Board

Pursuant thereto, the petitioner assumed office on the same date.

On April 10, 1986, Minister Gonzales sought approval from President Aquino of the composition of the Board of Directors of the
PTA, which included Binamira as Vice-Chairman in his capacity as General Manager. This approval was given by the President
on the same date. 1

Binamira claims that since assuming office, he had discharged the duties of PTA General Manager and Vice-Chairman of its
Board of Directors and had been acknowledged as such by various government offices, including the Office of the President.

He complains, though, that on January 2, 1990, his resignation was demanded by respondent Garrucho as the new Secretary of
Tourism. Binamira's demurrer led to an unpleasant exchange that led to his filing of a complaint against the Secretary with the
Commission on Human Rights. But that is another matter that does not concern us here.

What does is that on January 4, 1990, President Aquino sent respondent Garrucho the following memorandum, 2 copy furnished
Binamira:

4 January 1990

MEMORANDUM TO: Hon. Peter D. Garrucho, Jr.. Secretary of Tourism

It appearing from the records you have submitted to this Office that the present General Manager of the
Philippine Tourism Authority was designated not by the President, as required by P.D. No. 564, as amended,
but only by the Secretary of Tourism, such designation is invalid. Accordingly, you are hereby designated
concurrently as General Manager, effective immediately, until I can appoint a person to serve in the said office
in a permanent capacity.

Please be guided accordingly.

(Sgd.) CORAZON C. AQUINO

cc: Mr. Ramon P. Binamira Philippine Tourism Authority Manila

Garrucho having taken over as General Manager of the PTA in accordance with this memorandum, the petitioner filed this action
against him to question his title. Subsequently, while his original petition was pending, Binamira filed a supplemental petition
alleging that on April 6, 1990, the President of the Philippines appointed Jose A. Capistrano as General Manager of the
Philippine Tourism Authority. Capistrano was impleaded as additional respondent.

The issue presented in this case is starkly simple.

Section 23-A of P.D. 564, which created the Philippine Tourism Authority, provides as follows:
PoliRev Cases 1
SECTION 23-A. General Manager-Appointment and Tenure. — The General Manager shall be appointed by
the President of the Philippines and shall serve for a term of six (6) years unless sooner removed for
cause; Provided, That upon the expiration of his term, he shall serve as such until his successor shall have
been appointed and qualified. (As amended by P.D. 1400)

It is not disputed that the petitioner was not appointed by the President of the Philippines but only designated  by the Minister of
Tourism. There is a clear distinction between appointment and designation that the petitioner has failed to consider.

Appointment may be defined as the selection, by the authority vested with the power, of an individual who is to exercise the
functions of a given office. 3 When completed, usually with its confirmation, the appointment results in security of tenure for the
person chosen unless he is replaceable at pleasure because of the nature of his office. Designation, on the other hand,
connotes merely the imposition by law of additional duties on an incumbent official, 4 as where, in the case before us, the
Secretary of Tourism is designated Chairman of the Board of Directors of the Philippine Tourism Authority, or where, under the
Constitution, three Justices of the Supreme Court are designated by the Chief Justice to sit in the Electoral Tribunal of the
Senate or the House of Representatives. 5 It is said that appointment is essentially executive while designation is legislative in
nature.

Designation may also be loosely defined as an appointment because it likewise involves the naming of a particular person to a
specified public office. That is the common understanding of the term. However, where the person is merely designated and not
appointed, the implication is that he shall hold the office only in a temporary capacity and may be replaced at will by the
appointing authority. In this sense, the designation is considered only an acting or temporary appointment, which does not
confer security of tenure on the person named.

Even if so understood, that is, as an appointment, the designation of the petitioner cannot sustain his claim that he has been
illegally removed. The reason is that the decree clearly provides that the appointment of the General Manager of the Philippine
Tourism Authority shall be made by the President of the Philippines, not by any other officer. Appointment involves the exercise
of discretion, which because of its nature cannot be delegated. Legally speaking, it was not possible for Minister Gonzales to
assume the exercise of that discretion as an alter ego of the President. The appointment (or designation) of the petitioner was
not a merely mechanical or ministerial act that could be validly performed by a subordinate even if he happened as in this case
to be a member of the Cabinet.

An officer to whom a discretion is entrusted cannot delegate it to another, the presumption being that he was
chosen because he was deemed fit and competent to exercise that judgment and discretion, and unless the
power to substitute another in his place has been given to him, he cannot delegate his duties to another. 6

In those cases in which the proper execution of the office requires, on the part of the officer, the exercise of
judgment or discretion, the presumption is that he was chosen because he was deemed fit and competent to
exercise that judgment and discretion, and, unless power to substitute another in his place has been given to
him, he cannot delegate his duties to another. 7

Indeed, even on the assumption that the power conferred on the President could be validly exercised by the Secretary, we still
cannot accept that the act of the latter, as an extension or "projection" of the personality of the President, made irreversible the
petitioner's title to the position in question. The petitioner's conclusion that Minister Gonzales's act was in effect the act of
President Aquino is based only on half the doctrine he vigorously invokes. Justice Laurel stated that doctrine clearly in the
landmark case of Villena v. Secretary of the Interior, 8 where he described the relationship of the President of the Philippines and
the members of the Cabinet as follows:

... all executive and administrative organizations are adjuncts of the Executive Department, the heads of the
various executive departments are assistants and agents of the Chief Executive, and, except in cases where
the Chief Executive is required by the Constitution or the law to act in person or the exigencies of the situation
demand that he act personally, the multifarious executive and administrative functions of the Chief Executive
are performed by and through the executive departments, and the acts of the secretaries of such departments,
performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the
Chief Executive, presumptively the acts of the Chief Executive.

The doctrine presumes the acts of the Department Head to be the acts of the President of the Philippines when "performed and
promulgated in the regular course of business," which was true of the designation made by Minister Gonzales in favor of the
petitioner. But it also adds that such acts shall be considered valid only if not 'disapproved or reprobated by the Chief Executive,"
as also happened in the case at bar.

The argument that the designation made by Minister Gonzales was approved by President Aquino through her approval of the
composition of the Board of Directors of the PTA is not persuasive. It must be remembered that Binamira was included therein
as Vice- Chairman only because of his designation as PTA General Manager by Minister Gonzales. Such designation being
merely provisional, it could be recalled at will, as in fact it was recalled by the President herself, through the memorandum she
addressed to Secretary Garrucho on January 4, 1990.

With these rulings, the petitioner's claim of security of tenure must perforce fall to the ground. His designation being an unlawful
encroachment on a presidential prerogative, he did not acquire valid title thereunder to the position in question. Even if it be
assumed that it could be and was authorized, the designation signified merely a temporary or acting appointment that could be
legally withdrawn at pleasure, as in fact it was (albeit for a different reason).i•t•c-aüsl  In either case, the petitioner's claim of
security of tenure must be rejected.

The Court sympathizes with the petitioner, who apparently believed in good faith that he was being extended a permanent
appointment by the Minister of Tourism. After all, Minister Gonzales had the ostensible authority to do so at the time the
PoliRev Cases 1
designation was made. This belief seemed strengthened when President Aquino later approved the composition of the PTA
Board of Directors where the petitioner was designated Vice-Chairman because of his position as General Manager of the PTA.
However, such circumstances fall short of the categorical appointment required to be made by the President herself, and not the
Minister of Tourism, under Sec. 23 of P.D. No. 564. We must rule therefore that the petitioner never acquired valid title to the
disputed position and so has no right to be reinstated as General Manager of the Philippine Tourism Authority.

WHEREFORE, the petition is DISMISSED, with costs against the petitioner. It is so ordered.
PoliRev Cases 1
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. NO. L-69137 August 5, 1986

FELIMON LUEGO, petitioner-appellant,
vs.
CIVIL SERVICE COMMISSION and FELICULA TUOZO, respondents-appellees.

Jose Batiquin for petitioner-appellant.

Fausto F. Tugade for private respondent-appellee.

CRUZ, J.:

Stripped of irrelevant details and impertinent incidents that have cluttered the voluminous record, the facts of this case may be
briefly narrated as follows:

The petitioner was appointed Administrative Officer 11, Office of the City Mayor, Cebu City, by Mayor Florentino Solon on
February 18, 1983. 1 The appointment was described as permanent" but the Civil Service Commission approved it as
"temporary," subject to the final action taken in the protest filed by the private respondent and another employee, and provided
"there (was) 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." 2 On March 22, 1984, after protracted
hearings the legality of which does not have to be decided here, the Civil Service Commission found the private respondent
better qualified than the petitioner for the contested position and, accordingly, directed "that Felicula Tuozo be appointed to the
position of Administrative Officer 11 in the Administrative Division, Cebu City, in place of Felimon Luego whose appointment as
Administrative Officer II is hereby revoked."3 The private respondent was so appointed on June 28, 1984, by the new mayor,
Mayor Ronald Duterte. 4 The petitioner, invoking his earlier permanent appointment, is now before us to question that order and
the private respondent's title.

The issue is starkly simple: Is the Civil Service Commission authorized to disapprove a permanent appointment on the ground
that another person is better qualified than the appointee and, on the basis of this finding, order his replacement by the latter?

The Solicitor General, rather than face the question squarely, says the petitioner could be validly replaced in the instant case
because his appointment was temporary and therefore could be withdrawn at will, with or without cause. Having accepted such
an appointment, it is argued, the petitioner waived his security of tenure and consequently ran the risk of an abrupt separation
from his office without violation of the Constitution. 5

While the principle is correct, and we have applied it many times, 6 it is not correctly applied in this case. The argument begs the
question. The appointment of the petitioner was not temporary but permanent and was therefore protected by Constitution. The
appointing authority indicated that it was permanent, as he had the right to do so, and it was not for the respondent Civil Service
Commission to reverse him and call it temporary.

The stamping of the words "APPROVED as TEMPORARY" did not change the character of the appointment, which was clearly
described as "Permanent" in the space provided for in Civil Service Form No. 33, dated February 18, 1983. 7 What was
temporary was the approval of the appointment, not the appointment it sell And what made the approval temporary was the fact
that it was made to depend on the condition specified therein and on the verification of the qualifications of the appointee to the
position.

The Civil Service Commission is not empowered to determine the kind or nature of the appointment extended by the appointing
officer, its authority being limited to approving or reviewing the appointment in the light of the requirements of the Civil Service
Law. When the appointee is qualified and authorizing the other legal requirements are satisfied, the Commission has no choice
but to attest to the appointment in accordance with the Civil Service Laws.

As Justice Ramon C. Fernandez declared in an earlier case:

It is well settled that the determination of the kind of appointment to be extended lies in the official vested by
law with the appointing power and not the Civil Service Commission. The Commissioner of Civil Service is not
empowered to determine the kind or nature of the appointment extended by the appointing officer. When the
appointee is qualified, as in this case, the Commissioner of Civil Service has no choice but to attest to the
appointment. Under the Civil Service Law, Presidential Decree No. 807, the Commissioner is not authorized to
curtail the discretion of the appointing official on the nature or kind of the appointment to be extended. 8

Indeed, the approval is more appropriately called an attestation, that is, of the fact that the appointee is qualified for the position
to which he has been named. As we have repeatedly held, such attestation is required of the Commissioner of Civil Service
merely as a check to assure compliance with Civil Service Laws. 9

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
PoliRev Cases 1
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.

It is different where the Constitution or the law subjects the appointment to the approval of another officer or body, like the
Commission on Appointments under 1935 Constitution. 10 Appointments made by the President of the Philippines had to be
confirmed by that body and could not be issued or were invalidated without such confirmation. In fact, confirmation by the
Commission on Appointments was then considered part of the appointing process, which was held complete only after such
confirmation. 11

Moreover, the Commission on Appointments could review the wisdom of the appointment and had the power to refuse to concur
with it even if the President's choice possessed all the qualifications prescribed by law. No similar arrangement is provided for in
the Civil Service Decree. On the contrary, the Civil Service Commission is limited only to the non-discretionary authority of
determining whether or not the person appointed meets all the required conditions laid down by the law.

It is understandable if one is likely to be misled by the language of Section 9(h) of Article V of the Civil Service Decree because it
says the Commission has the power to "approve" and "disapprove" appointments. Thus, it is provided therein that the
Commission shag have inter alia the power to:

9(h) Approve all appointments, whether original or promotional to positions in the civil service, except those
presidential appointees, members of the Armed Forces of the Philippines, police forces, firemen, and
jailguards, and disapprove those where the appointees do not possess appropriate eligibility or required
qualifications. (emphasis supplied)

However, a full reading of the provision, especially of the underscored parts, will make it clear that all the Commission is actually
allowed to do is check whether or not the appointee possesses the appropriate civil service eligibility or the required
qualifications. If he does, his appointment is approved; if not, it is disapproved. No other criterion is permitted by law to be
employed by the Commission when it acts on--or as the Decree says, "approves" or "disapproves" an appointment made by the
proper authorities.

Significantly, the Commission on Civil Service acknowledged that both the petitioner and the private respondent were qualified
for the position in controversy. 12 That recognition alone rendered it functus officio in the case and prevented it from acting
further thereon except to affirm the validity of the petitioner's appointment. To be sure, it had no authority to revoke the said
appointment simply because it believed that the private respondent was better qualified for that would have constituted an
encroachment on the discretion vested solely in the city mayor.

In preferring the private respondent to the petitioner, the Commission was probably applying its own Rule V, Section 9, of Civil
Service Rules on Personnel Actions and Policies, which provides that "whenever there are two or more employees who are
next-in-rank, preference shall be given to the employee who is most competent and qualified and who has the appropriate civil
service eligibility." This rule is inapplicable, however, because neither of the claimants is next in rank. Moreover, the next-in-rank
rule is not absolute as the Civil Service Decree allows vacancies to be filled by transfer of present employees, reinstatement, re-
employment, or appointment of outsiders who have the appropriate eligibility. 13

There are apparently no political overtones in this case, which looks to be an honest contention between two public functionaries
who each sincerely claims to be entitled to the position in dispute. This is gratifying for politics should never be permitted to
interfere in the apolitical organization of the Civil Service, which is supposed to serve all the people regardless of partisan
considerations. This political detachment will be impaired if the security of tenure clause in the Constitution is emasculated and
appointments in the Civil Service are revoked and changed at will to suit the motivations and even the fancies of whatever party
may be in power.

WHEREFORE, the resolution of the respondent Commission on Civil Service dated March 22, 1984, is set aside, and the
petitioner is hereby declared to be entitled to the office in dispute by virtue of his permanent appointment thereto dated February
18, 1983. No costs.

SO ORDERED.
PoliRev Cases 1
Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 114795 July 17, 1996

LUCITA Q. GARCES, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, SALVADOR EMPEYNADO and CLAUDIO CONCEPCION, respondents.

RESOLUTION

FRANCISCO, J.:p

Questioned in this petition for review is the decision 1 of the Court of Appeals 2 (CA), as well as its resolution, which affirmed the
decision of the Regional Trial Court 3 (RTC) of Zamboanga del Norte in dismissing a petition for mandamus against a Provincial
Election Supervisor and an incumbent Election Registrar.

The undisputed facts are as follows:

Petitioner Lucita Garces was appointed Election Registrar of Gutalac, Zamboanga del Norte on July 27, 1986. She was to
replace respondent Election Registrar Claudio Concepcion who, in turn, was transferred to Liloy, Zamboanga del
Norte. 4 Correspondingly approved by the Civil Service Commission, 5 both appointments were to take effect upon assumption of
office. Concepcion, however, refused to transfer post as he did not request for it. 6 Garces, on the other hand, was directed by
the Office of Assistant Director for Operations to assume the Gutalac post. 7 But she was not able to do so because of a
Memorandum issued by respondent Provincial Election Supervisor Salvador Empeynado that prohibited her from assuming
office in Gutalac as the same is not vacant. 8

On February 24, 1987, Garces was directed by the same Office of Assistant Director to defer her assumption of the Gutalac
post. On April 15, 1987, she received a letter from the Acting Manager, Finance Service Department, with an enclosed check to
cover for the expenses on construction of polling booths. It was addressed "Mrs. Lucita Garces E.R. Gutalac, Zamboanga del
Norte" which Garces interpreted to mean as superseding the deferment order. 9 Meanwhile, since respondent Concepcion
continued occupying the Gutalac office, the COMELEC en banc cancelled his appointment to Liloy. 10

On February 26, 1988, Garces filed before the RTC a petition for mandamus with preliminary prohibitory and mandatory
injunction and damages against Empeynado 11 and Concepcion, among others. Meantime, the COMELEC en banc through a
Resolution dated June 3, 1988, resolved to recognize respondent Concepcion as the Election Registrar of Gutalac, 12 and
ordered that the appointments of Garces to Gutalac and of Concepcion to Liloy be cancelled. 13 In view thereof, respondent
Empeynado moved to dismiss the petition for mandamus alleging that the same was rendered moot and academic by the said
COMELEC Resolution, and that the case is cognizable only by the COMELEC under Sec. 7 Art. IX-A of the 1987 Constitution.
The RTC, thereafter, dismissed the petition for mandamus on two grounds, viz., (1) that quo warranto is the proper
remedy, 14 and (2) that the "cases" or "matters" referred under the constitution pertain only to those involving the conduct of
elections. On appeal, respondent CA affirmed the RTC's dismissal of the case. Hence, this petition

The issues raised are purely legal. First, is petitioner's action for mandamus proper? And, second, is this case cognizable by the
RTC or by the Supreme Court?

On the first issue, Garces claims that she has a clear legal right to the Gutalac post which was deemed vacated at the time of
her appointment and qualification. Garces insists that the vacancy was created by Section 2, Article III of the Provisional
Constitution. 15 On the contrary, Concepcion posits that he did not vacate his Gutalac post as he did not accept the transfer to
Liloy.

Article III Section 2 of the Provisional Constitution provides:

All elective and appointive officials and employees under the 1973 Constitution shall continue in the
office until otherwise provided by proclamation or executive order or upon the designation or
appointment and qualification of their successors, if such is made within a period of one year from
February 25, 1986. (Emphasis supplied).

The above organic provision did not require any cause for removal of an appointive official under the 1973
Constitution. 16 The transition period from the old to the new Constitution envisioned an "automatic" vacancy; 17 hence
the government is not hard put to prove anything plainly and simply because the Constitution allows it. 18 Mere
appointment and qualification of the successor removes an incumbent from his post. Nevertheless, the government in
an act of auto-limitation and to prevent indiscriminate dismissal of government personnel issued on May 28, 1986,
Executive Order (E.O.) No. 17. This executive order, which applies in this case as it was passed prior to the issuance of
Concepcion's transfer order, enumerates five grounds for separation or replacement of elective and appointive officials
authorized under Article III, Section 2 of the Provisional Constitution, to wit:
PoliRev Cases 1
1. Existence of a case for summary dismissal pursuant to Section 40 of the Civil Service Law;

2. Existence of the probable cause for violation of the Anti-Graft and Corrupt Practices Act as
determined by the Ministry Head concerned;

3. Gross incompetence or inefficiency in the discharge of functions;

4. Misuse of public office for partisan political purposes;

5. Any other analogous ground showing that the incumbent is unfit to remain in the service or his
separation/replacement is in the interest of the service.

Not one of these grounds was alleged to exist, much less proven by petitioner when respondent Concepcion was
transferred from Gutalac to Liloy. More, Concepcion was transferred without his consent. A transfer requires a prior
appointment. 19 If the transfer was made without the consent of the official concerned, it is tantamount to removal
without valid cause 20 contrary to the fundamental guarantee on non-removal except for cause. 21 Concepcion's transfer
thus becomes legally infirm and without effect for he was not validly terminated. His appointment to the Liloy post, in
fact, was incomplete because he did not accept it. Acceptance, it must be emphasized, it is indispensable to complete
an appointment.22 Corollarily, Concepcion's post in Gutalac never became vacant. It is a basic precept in the law of
public officers that "no person, no matter how qualified and eligible he is for a certain position may be appointed to an
office which is not vacant. 23 There can be no appointment to a non-vacant position. The incumbent must first be legally
removed, or his appointment validly terminated before one could be validly installed to succeed him. Further, Garces'
appointment was ordered to be deferred by the COMELEC. The deferment order, we note, was not unequivocably
lifted. Worse, her appointment to Gutalac was even cancelled by the COMELEC en banc.

These factors negate Garces' claim for a well-defined, clear, certain legal right to the Gutalac post. On the contrary, her
right to the said office is manifestly doubtful and highly questionable. As correctly ruled by respondent
court, mandamus, which petitioner filed below, will not lie as this remedy applies only where petitioner's right is founded
clearly in law and not when it is doubtful. 24 It will not issue to give him something to which he is not clearly and
conclusively entitled. 25 Considering that Concepcion continuously occupies the disputed position and exercises the
corresponding functions therefor, the proper remedy should have been quo warranto and not mandamus. 26 Quo
warranto tests the title to one's office claimed by another and has as its object the ouster of the holder from its
enjoyment, while mandamus avails to enforce clear legal duties and not to try disputed titles. 27

Garces' heavy reliance with the 1964 Tulawie  28 case is misplaced for material and different factual considerations.
Unlike in this case, the disputed office of "Assistant Provincial Agriculturist" in the case of Tulawie is clearly vacant and
petitioner Tulawie's appointment was confirmed by the higher authorities making his claim to the disputed position clear
and certain. Tulawie's petition for mandamus, moreover, was against the Provincial Agriculturist who never claimed title
to the contested office. In this case, there was no vacancy in the Gutalac post and petitioner's appointment to which she
could base her claim was revoked making her claim uncertain.

Coming now to the second issue.

The jurisdiction of the RTC was challenged by respondent Empeynado 29 contending that this is a "case" or "matter"
cognizable by the COMELEC under Sec. 7 Art. IX-A of the 1987 Constitution. The COMELEC resolution cancelling the
appointment of Garces as Election Registrar of Gutalac, he argues, should be raised only on certiorari before the
Supreme Court and not before the RTC, else the latter court becomes a reviewer of an en banc COMELEC resolution
contrary to Sec. 7, Art. IX-A.

The contention is without merit. Sec. 7, Art. IX-A of the Constitution provides:

Each commission shall decide by a majority vote of all its members any case or matter brought before it within
sixty days from the date of its submission for decision or resolution. A case or  matter  is deemed submitted for
decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the
commission or by the commission itself. Unless otherwise provided by this constitution or by law, any decision,
order, or ruling of each commission may be brought to the supreme court on certiorari by the aggrieved party
within thirty days from receipt of a copy thereof.

This provision is inapplicable as there was no case or matter filed before the COMELEC. On the contrary, it was the
COMELEC's resolution that triggered this controversy. The "case" or "matter" referred to by the constitution must be
something within the jurisdiction of the COMELEC, i.e., it must pertain to an election dispute. The settled rule is that
"decision, rulings, order" of the COMELEC that may be brought to the Supreme Court on certiorari under Sec. 7 Art. IX-
A are those that relate to the COMELEC's exercise of its adjudicatory or quasi-judicial powers 30 involving
"elective regional, provincial, and city officials." 31 In this case, what is being assailed is the COMELEC's choice of an
appointee to occupy the Gutalac Post which is an administrative duty done for the operational set-up of an
agency. 32 The controversy involves an appointive, not an elective, official. Hardly can this matter call for
the certiorari jurisdiction of the Supreme Court. To rule otherwise would surely burden the Court with trivial
administrative questions that are best ventilated before the RTC, a court which the law vests with the power to exercise
original jurisdiction over "all cases not within the exclusive jurisdiction over of any court, tribunal, person or body
exercising judicial or quasi-judicial
functions." 33

WHEREFORE, premises considered, the petition for review is hereby DENIED without prejudice to the filing of the
proper action with the appropriate body.
PoliRev Cases 1
PoliRev Cases 1
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-21691             September 15, 1967

RAMON V. MITRA, petitioner-appellee,
vs.
ABELARDO SUBIDO, in his capacity as Acting Commissioner of Civil Service, ET AL., respondents-appellants.

Garcia, Perez and Sikat for petitioner-appellee.

Office of the Solicitor General for respondents-appellants.

ANGELES, J.:

This is an appeal from the decision of the Court of First instance of Manila, dated July 26, 1963, in Civil Case No. 53006, entitled
Ramon V. Mitra, petitioner, versus Abelardo Subido, et al., respondents, declaring null and void the order of the Acting
Commissioner of Civil Service terminating the services of Ramon V. Mitra as Senior Technical Assistant in the Office of the
Mayor, City of Manila, and ordering the respondent City Auditor to authorize the other respondent City Treasurer to pay the
salary of the petitioner beginning January 16, 1963, and during his tenure of office as Senior Technical Assistant in the Office of
the City Mayor, Antonio J. Villegas.

The record of the proceeding had in this case in the court a quo shows the antecedent facts that gave rise to the controversy, as
follows:

Effective July 1, 1962, Mayor Antonio J. Villegas, of the City of Manila, appointed the petitioner as Senior Technology Assistant
in his office, with compensation at the rate of P8,400 per annum. This appointment was forwarded to the Civil Service
Commission for approval, and after processing the same, was released with the required approval as follows:

APPROVED: subject to the usual physical and medical examination.

Subject to the availability of funds As an exceptional case under Sec. 256 of the Revised
Administrative Code. (x)

A. del Rosario
Commissioner of Civil Service

By:

(SGD) EPI REY PANGRAMUYEN         

Chief, Personnel Transaction Division         

(x) Provided the provisions of Par. 3, Sec. 23 of Republic Act Act 2260 have been observed.

The appointee Ramon V. Mitra qualified for and assumed the position of Senior Technical Assistant in the Office of the Mayor of
Manila on said date, July 1, 1962. Since then, he discharged the duties of the position and was paid the corresponding salary for
his services, until January 15, 1963.

On January 11, 1963, the Acting Commissioner of Civil Service, Abelardo Subido, wrote to the City Mayor informing him that the
appointment extended to the petitioner was in violation of the certification requirement prescribed by the Civil Service Law and
was incomplete, because the approval thereof by Epi Rey Pangramuyen, Chief, Personnel Transactions Division, was "ultra
vires," the latter having acted beyond the scope of his delegated authority. In the same communication, the acting Commissioner
of Civil Service ordered the termination of the services of Ramon V. Mitra, upon receipt of said letter by the City Mayor, who was
"requested to notify accordingly the employee affected and to advise" the Civil Service Commission of the date of said notice.

On January 14, 1963, the said letter-order of the Acting Commissioner of Civil Service was received by the City Mayor who, on
the same date, returned it to the sender with a first indorsement wherein he explained that the duties of Ramon V. Mitra as
Senior Technical Assistant in his office involved the knowledge of the law profession and as such, was entitled to the full benefits
of Republic Act 1080, as amended. In the concluding paragraph of the indorsement, the City Mayor requested the
Commissioner to withdraw his aforesaid letter-order of January 11, 1963, terminating the services of the petitioner.

On January 14, 1963, the Acting Commissioner of Civil Service simultaneously sent to the City Treasurer and the City Auditor,
both of Manila, and the General Manager of the Government Service Insurance System communications furnishing each of
them with a copy of his order terminating the services of the petitioner as Senior Technical Assistant in the Office of the Mayor,
City of Manila.1awphîl.nèt

On January 17, 1963, the City Auditor wrote a letter to the City Treasurer requesting that the salary of the petitioner Ramon V.
Mitra be suspended beginning with the period from January 16 to 31, 1963. The City Treasurer forwarded this communication
PoliRev Cases 1
with his first indorsement to the City Mayor informing the latter that the salary of Ramon V. Mitra would be suspended
corresponding to the period from January 16 to 31, 1963. The same communication was returned on January 25, 1963 by the
City Mayor with his second indorsement to the City Treasurer directing him to continue paying the salary of the petitioner unless
otherwise expressly ordered by his Office.

The foregoing communications of the City Mayor did not in any way afford relief in the predicament that the petitioner found
himself in, as the Acting Commissioner of Civil Service did not heed the request of the City Mayor to withdraw the letter-order of
the former terminating the services of the petitioner; similarly, the City Treasurer did not comply with the directive contained in
the second indorsement of the City Mayor, dated January 25, 1963, directing him to continue paying the salary of petitioner; and
accordingly, Ramon V. Mitra did not receive his salary for the period from January 16 to 31, 1963. Consequently, on February 5,
1963, Ramon V. Mitra filed with the Court of First Instance of Manila, this case which is a petition for mandamus with preliminary
mandatory injunction against Abelardo Subido, in his capacity as Acting Commisisoner of Civil Service; Manuel Cudiamat, in his
capacity as City Treasurer of Manila; and Jose Erestain, in his capacity as City Auditor.

Pending trial of the case on the merits, petitioner prayed for the issuance of a writ of preliminary mandatory injunction to restrain
the Acting Commisisoner of Civil Service from enforcing his order of January 11, 1963, terminating his services as Senior
Technical Assistant in the Office of the Mayor, and to order the City Auditor and City Treasurer to authorize and pay,
respectively, his salary corresponding to the period from January 16 to 31, 1963, and those which may thereafter become due
and payable. On the basis of the evidence adduced at the hearing thereof, however, the lower court found no extreme necessity
justifying the issuance of the writ prayed for; and in its order dated March 9, 1963, denied the prayer for the issuance of the writ
of preliminary mandatory injunction.

Finally, after due trial on the merits in the main cause, the court a quo on July 26, 1963, rendered the decision appealed from,
holding that the appointment of petitioner Ramon V. Mitra as Senior Technical Assistant in the Office of the Mayor at
P8,400.00  per annum effective July 1, 1962, bears the valid approval of the Civil Service Commission and is complete; that the
order of the Commissioner of Civil Service dated March 11, 1960 did not limit the authority of the Chief, Personnel Transactions
Division of said Office to approve appointments; that his being a member of the bar, in relation to the position of Senior
Technical Assistant in the Office of the Mayor is equivalent to "first grade" eligibility under Republic Act 1080, as amended by
Republic Act 1844, because the position involves professional knowledge of the law; that the certification requirement of the law
is not necessary in the appointment; that the principle of exhaustion of adsition involves professional knowledge of the law; that
the Acting Commissioner of Civil Service has no authority to order the cancellation of petitioner's appointment; and that the order
of the Acting Commissioner terminating the services of the petitioner dated January 11, 1963, was null and void. Conformably
thereto, the Court rendered the decision appealed from which, as aforestated in the opening paragraph of this opinion, declared
null and void the order of the Acting Commissioner of Civil Service terminating the services of Ramon V. Mitra as Senior
Technical Assistant in the Office of the Mayor of Manila, and ordered the respondent City Auditor of said city to authorize the
City Treasurer to pay the salary of the petition of the petitioner beginning January 16, 1963, and during his tenure of office in his
position as Senior Technical Assistant.

Respondent Acting Commissioner of Civil Service and City Auditor of Manila have come to Us on appeal, specifically assigning
as errors the above-enumerated holdings of the lower court.

Appellants contend that the appellee, Ramon V. Mitra, does not possess the necessary eligibility required by the position to
which he was appointed. It is alleged that his being a member of the bar, considered in relation to his position as Senior
Technical Assistant in the Office of the Mayor, City of Manila, which does not involve the knowledge edge of the law profession,
is equivalent to "second grade" civil service eligibility under Republic Act No. 1080, as amended by Republic Act No. 1944, and
is, therefore, not appropriate for the position aforementioned which involves a compensation of P8,400.00 per annum and
requires a "first grade" civil service eligibility.

We shall examine the provision of the law invoked in relation to the duties of the appellee under the position in question. Section
1 of Republic Act 1080, as amended by Republic Act 1844 provides among others, as follows:

Sec. 1. — The bar examinations and the examinations given by the various boards of examiners of the Government are
declared as civil service examinations, and shall, for purposes of appointment to the positions in the classified service
the duties of which involve the knowledge of the respective professions, except positions requiring highly specialized
knowledge not covered by the ordinary board examinations, be considered as equivalent to first grade regular
examination given by the Bureau of Civil Service if the profession requires at least four years of study in college, and as
equivalent to the second grade regular examination if the profession requires less than four years of college
study: Provided, however, That such bar or board examination shall be equivalent to the next lower grade of civil
service examination when the person is to be employed in a position other than one requiring his professional
knowledge; . . . .

On the other hand, as Senior Technical Assistant in the Office of the Mayor, City of Manila, petitioner was assigned to perform
the following duties:

1. To study and make the necessary recommendation on matters involving the legal, technical and administrative
aspects of the city government administration, for appropriate consideration by the undersigned;

2. To undertake research, legal or otherwise, to determine the legality and/or feasibility of the execution of projects of
the city which are calculated to insure the promotion of the best interest and welfare of the city residents, and to make
the necessary report thereon for consideration;

3. To take action on official matters wherein his qualifications, knowledge and experience are required and may be
utilized to fullest advantage; and
PoliRev Cases 1
4. To perform such other assignments as may be given to him from time to time.

It is argued by the appellants that the above-enumerated duties do not involve knowledge of the legal profession as
contemplated in the law, aforecited. It is suggested that a distinction should be made between "professional knowledge" and
"legal knowledge;" and that while Republic Act 1080, as amended, requires professional knowledge of the law, the position in
question, on the other hand, like any other position in the government service, calls only for some legal knowledge. The
implication is, that one need not be a lawyer to undertake legal research to determine the legality of city projects, and to study
and make necessary recommendation on matters involving the legal aspects of the city government administration for
consideration of the Mayor of the City of Manila.

We find these contention and suggestion devoid of any reasonable basis. The duties devolving upon the position of Senior
Technical Assistant as above described involve the capacity not only of finding what and where the law applicable to a given
situation is, but also of making legal research to know the principles evolved by the courts in construing that law as applied to
the given situation. Only lawyers, by reason of their academic preparation and training in law, are technically equipped with
knowledge to handle such duties. When the law or the duties of the position to be filled speaks of legal work, it means
proficiency in law is required, which only lawyers are presumed to possess. Likewise, in passing upon legal matters involving the
corporate and governmental affairs of the City of Manila, it is indispensable that the incumbent must be a lawyer, otherwise, he
would not be in a position to determine the legality of a course of action which the office of the Mayor may desire to take. Neither
is the observation of herein appellants, that the City Fiscal of Manila as legal adviser of the city, is the proper person to pass
upon the legal aspects of city administration, entirely correct, for such contention strikes not only at the very prerogative of the
power that created the position in question, but also because it would deny the Mayor of Manila a chance to ascertain for himself
in the first instance, through his assistants, the legal aspects of matters or problems brought before him. For these reasons,
appellee's admission to the bar, in relation to the position of Senior Technical Assistant in the Office of the Mayor, should be
considered as equivalent to first grade eligibility under the provisions of Republic Act 1080.

It is next argued by the appellants that the appointment of Ramon V. Mitra as Senior Technical Assistant in the Office of the
Mayor of Manila is in violation of the "certification requirement" of the Civil Service Law, relying upon the provisions of Section
23, Republic Act No. 2260:

. . . if the vacancy is not filled by promotion as provided herein, then the same shall be filled by transfer of present
employees in the government service, by reinstatement, by reemployment of persons separated through reduction in
force, or by certification from appropriate registers of eligibles in accordance with rules promulgated in pursuance of this
Act.

It is apparent from the foregoing provision of the Civil Service Law that prior certification of eligibles is required only if a position
is not filled by promotion, by transfer of persons already in the government service, and by reinstatement or reemployment of
persons separated from the service through reduction in force. In the case at bar, it was shown during the trial that the appointee
was formerly employed in the Department of Foreign Affairs and the Central Bank of the Philippines. Obviously, therefore, the
appointment was a reinstatement, and there was no necessity of obtaining prior certification of eligibles from the Civil Service
Commission.

Appellants further maintain that the appellee in this case, had not exhausted administrative remedies, for appeal from the order
of the Commissioner of Civil Service to the President was yet available, and it was error on the part of the Court of First Instance
of Manila to entertain the premature action instituted against them. We find no merit in this argument. It has been repeatedly
held that the principle requiring the previous exhaustion of administrative remedies is not applicable where the question in
dispute is purely a legal one (Tapales vs. The President & Board of Regents of the U.P., L-17523, March 30, 1963), where the
controverted act is patently illegal or was performed without jurisdiction or in excess of jurisdiction (Mangubat vs. Osmeña, L-
12837, April 30, 1959), where the respondent is a department secretary whose acts as an alter ego of the President bear the
implied or assumed approval of the latter (Marinduque Iron Mines Agents, Inc. vs. Secretary of Public Works, G.R. No. L-15982,
May 31, 1963), or where there are circumstances indicating the urgency of judicial intervention (Alzate vs. Aldaba, L-14407,
February 29, 1960; Demaisip vs. Court of Appeals, L-13000, September 29, 1959). Similarly, when, as in this case, in
terminating the services of the appellee, the Commissioner of Civil Service acted summarily without any semblance of
compliance, or even an attempt to comply with the elementary rules of due process, when the order is immediately executed
and petitioner was immediately removed from office, then appeal was not a plain, speedy and adequate remedy in the ordinary
course of law (Fernandez, et al. vs. Cuneta, et al., G.R. No. L-14392, May 30, 1960), and the employee adversely affected may
forthwith seek the protection of the courts. Moreover, appellant Commissioner of Civil Service maintains that in terminating the
services of the appellee, he was not acting in the exercise of his power to impose disciplinary measures to erring subordinate
officers and employees which is subject to review by the Civil Service Board of Appeals and the President, but in pursuance of
his power to approve or disapprove appointments, in the exercise of which latter function, his jurisdiction is exclusive (Sec. 16
[h], Republic Act 2260), which all the more renders the claim of non-exhaustion of administrative remedies in this case untenable
(Billy Millares vs. Abelardo Subido, et al., L-23281, August 10, 1967).

Regarding the holding of the lower court that the Commissioner of Civil Service had no power to cancel the appointment of the
appellee, the appellants argue that said Commissioner had power to do so because the appointment in question was null and
void from the beginning, and that in terminating the services of the appellee, he was merely enforcing the provisions of the Civil
Service Law which should not be construed as a removal of the appointee from office. In justifying his act, reliance is made by
the Commissioner of Civil Service upon Section 16 of Republic Act No. 2260, otherwise known as the Civil Service Act of 1959,
and Section 693 of the Revised Administrative Code, to wit:

Sec. 16. Powers and duties of the Commissioner of Civil Service. — It shall be among the powers and duties of the
Commissioner of Civil Service:

(f) To make investigations and special reports upon all matters relating to the enforcement of the Civil Service Law and
rules; to inspect and audit the agencies' personnel work programs to determine compliance with the Civil Service Law,
PoliRev Cases 1
rules, standards and other requirements; and to take corrective measures when unsatisfactory situations are found;
(Republic Act No. 2260) [Emphasis Ours]

Sec. 693. Opinion of the Commissioner of Civil Service on Controverted Questions Related to the Service. — A
disbursing officer, the head of any department, bureau, or office, or the Auditor General, may apply for, and the
Commissioner of Civil Service shall render, a decision upon any question as to whether a position is in the classified or
in the unclassified civil service, or whether the appointment of any person to a classified position has been made in
accordance with law, which decision, when rendered, shall be final unless reversed by the President of the Philippines
on appeal. (Revised Administrative Code.)

There is no sense in denying that the Commissioner of Civil Service possesses ample powers to review appointments made to
positions in the civil service, and to take corrective measures when unsatisfactory situations are found to exist under the above-
quoted provisions of the law. It is also laudable that the Commissioner of Civil Service sees to it that the provisions of the Civil
Service Law are properly enforced. However, the power to take corrective measures should be exercised with caution.

It may be stated as a general rule that an appointment once made is irrevocable and not subject to reconsideration. This view
represents the great weight of authority (note found at page 135 American Law Reports, supported by innumerable decisions).
The rule is qualified, however, where the assent, confirmation or approval of some other officer or body is needed before the
appointment may issue and be deemed complete. Necessarily, this calls for a determination in any given situation whether or
not all the acts necessary to make an appointment complete have been performed.

Where the power of appointment is absolute, and the appointee has been determined upon, no further consent or
approval is necessary, and the formal evidence of the appointment, the commission, may issue at once. Where,
however, the assent or confirmation of some other officer or body is required, the commission can issue or the
appointment be complete only when such assent or confirmation is obtained. (Mechem, Law of Public Offices and
Officers, Sec. 112, p. 46)

Under our Civil Service Law and the rules promulgated thereunder, an appointment to a position in the civil service must be
submitted to the Commissioner of Civil Service for approval, i.e., for determination whether the proposed appointee is qualified
to hold the position, and whether or not the pertinent rules had been followed in making the appointment. We have said in this
connection that the appointment made by an officer duly empowered to make it, is not final and complete until after the
Commissioner of Civil Service has certified that such appointment may be made (Gorospe vs. Secretary of Public Works, L-
11090, January 31, 1959). The acts of the head of Department or Office making the appointment and the Commissioner of Civil
Service acting together, though not concurrently, but consecutively, are necessary to make an appointment complete. And there
should be no question that for an appointee in the clasiffied position in the civil service to be entitled to the protection of the law
against unjust removal, his appointment must receive the approval of the Commissioner of Civil Service (Favis vs. Rupisan, et
al., L-22823, May 19, 1966).

Applying the rules above-explained, We hold that the appointment of the appellee had become complete when the appellant
Commissioner of Civil Service issued his order terminating the services of the former. The appointment in question was
extended to the appellee on July 1, 1962, by virtue of which the appointee assumed the duties of his position. Under the same
appointment as approved by the Chief, Personnel Transactions Division in the name of the Commissioner of Civil Service, the
City Auditor and City Treasurer allowed and paid, respectively, the salary of the appellee for the period from July 1, 1962 to
January 15, 1963, a period of six and a half months. In the case of appointments made by local officials and attested to by
Provincial Treasurers and City Treasurers under Section 20 of the Civil Service Law, the appointments are deemed to have
been properly made if within a period of one hundred eighty days the Commissioner of Civil Service fails to make any correction
or revision thereof. The same section of the law ordains that the Commissioner should make a review of actions taken in the
discharge of delegated authority thereunder, which include those performed by chiefs of divisions and primary units in his office,
to insure compliance with standards and regulations. After the lapse of the period therein allowed, corrections of mistakes may
no longer be had, considering that after the lapse of that time the probationary period of an employee under his appointment
also ends, and his appointment automatically becomes permanent. We find no plausible reason why the presumption of
regularity which attaches to appointments attested to by Provincial and City Treasurers after the lapse of six months should not
be applied to appointments submitted directly to the Civil Service Commissioner and approved in his name by a Chief of Division
in his office. Even on the premise that the appointment of the appellee did suffer from an infirmity occasioned by the mistake of
the division chief concerned who approved the appointment, the same should now be deemed complete under the
circumstances and reasons above-enumerated. There should be some point of time when an appointment made and approved
should not be disturbed by reason of some violation of certain office rules that has been due to mere inadvertence. Unless the
appointment is an absolute nullity, or in the absence of fraud on the part of the appointee, the irregularity must be deemed cured
by the probational and absolute appointment of the appointee and should be considered conclusive.

A removal from office takes place after title to the office has become vested in the appointee, whereas revocation of an
appointment is had, if it is to be successful, before the appointment is complete (42 Am. Jur. 959). The moment the appointee
assumes a position in the civil service under a completed appointment, he acquires a legal, not merely equitable right, which is
protected not only by statute, but also by the Constitution, and it cannot be taken away from him, either by revocation of the
appointment or by removal, except for cause, and with previous notice and hearing, consistent with Section 4 of Article XII of our
fundamental law, and with the constitutional requirement of due process. And when, as in this case, the appointee has been
regularly performing the duties of his office and been paid the corresponding salary for more than six months already under a
known appointment that was never questioned by either the City Treasurer or the City Auditor of Manila before granting the
salary of the appellee, the act of the Acting Commissioner of Civil Service in summarily terminating the services of the appointee
may not be said to be a reconsideration of the appointment, but is in fact a removal from office. Like a judgment that is not void
upon its face, the appointment in question is not "the serpent that may be attacked or slain at sight." The power to remove from
office cannot lightly be inferred from the duty of the Commissioner of Civil Service to make investigations and take corrective
measures when unsatisfactory situations are found to exist. Under the circumstances of this case, that duty should be exercised,
if it is to be exercise at all, with the end in view of ratifying the appointment in question should he believe that the act of his
subordinate in approving the appointment is not sufficient, considering that the appellee has been found qualified for the position
PoliRev Cases 1
to which he was appointed. In the same token, We find it unnecessary to pass upon the authority of the Chief of Personnel
Transactions Division of the Civil Service Commission to approve the disputed appointmentof the appellee.

WHEREFORE, and considering all the foregoing, the instant appeal should be, as hereby it is, dismissed, and the decision
appealed from affirmed in toto. No pronouncement as to costs.
PoliRev Cases 1
Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 184219               January 30, 2012

SAMUEL B. ONG, Petitioner,
vs.
OFFICE OF THE PRESIDENT, ET AL., Respondents.

DECISION

REYES, J.:

The Case

Before us is a petition for review1 on certiorari under Rule 45 of the Rules of Court filed by Samuel B. Ong (Ong) to assail the
Decision2 rendered by the Court of Appeals (CA) on August 5, 2008 in CA-G.R. SP No. 88673, the dispositive portion of which
reads:

WHEREFORE, in view of the foregoing premises, the petition for quo warranto filed in this case is hereby DENIED.

SO ORDERED.3

Ong died on May 22, 2009 during the pendency of the instant petition. 4 Admittedly, Ong's death rendered the prayer for
reinstatement in the petition for quo warranto as moot and academic. However, substitution 5 was sought because in the event
that the Court would rule that Ong was indeed entitled to the position he claimed, backwages pertaining to him can still be paid
to his legal heirs. Per Resolution6 issued on January 10, 2011, we granted the motion for substitution. The deceased petitioner is
now herein substituted by his wife Elizabeth, and children, Samuel Jr., Elizabeth and Carolyn, all surnamed Ong.

Antecedents Facts

The CA aptly summarized the facts of the case before the filing of the petition for quo warranto as follows:

The petitioner [Ong] joined the National Bureau of Investigation (NBI) as a career employee in 1978. He held the position of NBI
Director I from July 14, 1998 to February 23, 1999 and NBI Director II from February 24, 1998 to September 5, 2001. On
September 6, 2001, petitioner was appointed Director III by the President. His appointment paper pertinently reads:

"x x x

Pursuant to the provisions of existing laws, the following are hereby appointed to the NATIONAL BUREAU OF
INVESTIGATION, DEPARTMENT OF JUSTICE co-terminus with the appointing authority:

xxx

SAMUEL B. ONG - DIRECTOR III

(vice Carlos S. Caabay) [DEPUTY DIRECTOR]

x x x"

On June 3, 2004, the petitioner received from respondent Reynaldo Wycoco Memorandum Circular No. 02-S.2004 informing
him that his appointment, being co-terminus with the appointing authority's tenure, would end effectively at midnight on June 30,
2004 and, unless a new appointment would be issued in his favor by the President consistent with her new tenure effective July
1, 2004, he would be occcupying his position in a de facto/hold[-]over status until his replacement would be appointed.

On December 01, 2004, the President appointed respondent Victor A. Bessat as NBI Director III as replacement of the
petitioner. Consequently, respondent Wycoco notified the petitioner that, effective on December 17, 2004, the latter should
cease and desist from performing his functions as NBI Director III in view of the presidential appointment of respondent Bessat
as petitioner's replacement. The petitioner received the aforementioned notice only on January 27, 2005. 7 (underscoring
supplied and citations omitted)

On February 22, 2005, Ong filed before the CA a petition for quo warranto.  He sought for the declaration as null and void of (a)
his removal from the position of NBI Director III; and (b) his replacement by respondent Victor Bessat (Bessat). Ong likewise
prayed for reinstatement and backwages.

The CA denied Ong's petition on grounds:

PoliRev Cases 1
A petition for quo warranto is a proceeding to determine the right of a person to the use or exercise of a franchise or office and to
oust the holder from its enjoyment, if his claim is not well-founded, or if he has forfeited his right to enjoy the privilege. 8 Where
the action is filed by a private person, in his own name, he must prove that he is entitled to the controverted position, otherwise,
respondent has a right to the undisturbed possession of the office. 9

Section 27 of the Administrative Code of 1987, as amended, classifies the appointment status of public officers and employees
in the career service into permanent and temporary. 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. 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.

x x x In Cuadra v. Cordova,10 temporary appointment is defined 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 temporary appointee accepts the
position with the condition that he shall surrender the office when called upon to do so by the appointing authority. The
termination of a temporary appointment may be with or without a cause since the appointee serves merely at the pleasure of the
appointing authority.

In the career executive service, the acquisition of security of tenure presupposes a permanent appointment. As held in General
v. Roco,11 two requisites must concur in order that an employee in the career executive service may attain security of tenure, to
wit: 1) CES eligibility[;] and 2) appointment to the appropriate CES rank.

In the present case, it is undisputed that the petitioner is a non-CESO eligible. At best, therefore, his appointment could be
regarded only as temporary and, hence, he has no security of tenure. Such being the case, his appointment can be withdrawn at
will by the President, who is the appointing authority in this case, and "at a moment's notice." 12

Moreover, a perusal of the petitioner's appointment will reveal that his appointment as NBI Director III is co-terminous with the
appointing authority. Correlatively, his appointment falls under Section 14 of the Omnibus Rules Implementing Book V of the
Revised Administrative Code of 1987 which provides that:13

"Sec. 14. An appointment may also be co-terminous which shall be issued to a person whose entrance and continuity in the
service is based on the trust and confidence of the appointing authority or that which is subject to his pleasure, or co-existent
with his tenure, or limited by the duration of project or subject to the availability of funds. "

The co-terminous status may thus be classified as follows:

xxxx

(2) Co-terminous with the appointing authority –

when appointment is co-existent with the tenure of the appointing authority or at his pleasure; x x x

xxxx

Thus, although petitioner's appointment is co-terminous with the tenure of the President, he nevertheless serves at the pleasure
of the President and his appointment may be recalled anytime. The case of Mita Pardo de Tavera v. Philippine Tuberculosis
Society, Inc.14 delineated the nature of an appointment held "at the pleasure of the appointing power" in this wise:

An appointment held at the pleasure of the appointing power is in essence temporary in nature. It is co-extensive with the desire
of the Board of Directors. Hence, when the Board opts to replace the incumbent, technically there is no removal but only an
expiration of term and in an expiration of term, there is no need of prior notice, due hearing or sufficient grounds before the
incumbent can be separated from office. The protection afforded by Section 7.04 of the Code of By-Laws on Removal [o]f
Officers and Employees, therefore, cannot be claimed by petitioner.

All told, petitioner's appointment as well as its consequent termination falls within the ambit of the discretion bestowed on the
appointing authority, the President. Simply put, his appointment can be terminated at any time for any cause and without the
need of prior notice or hearing since he can be removed from his office anytime. His termination cannot be said to be violative of
Section 2(3), Article IX-B of the 1987 Constitution. When a temporary appointee is required to relinquish his office, he is being
separated from office because his term has expired. 15 Starkly put, upon the appointment of respondent Bessat as his
replacement, his term of office had already expired.

Likewise, it is inconsequential that the petitioner was replaced by another non-CESO eligible, respondent Besat. In a quo
warranto proceeding[,] the person suing must show that he has a clear right to the office allegedly held unlawfully by another.
Absent that right, the lack of qualification or eligibility of the supposed usurper is immaterial. 16

Indeed, 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. 17
PoliRev Cases 1
In sum, quo warranto is unavailing in the instant case, as the public office in question has not been usurped, intruded into or
unlawfully held by respondent Bessat. The petitioner had no legal right over the disputed office and his cessation from office
involves no removal but an expiration of his term of office.18

Hence, the instant petition ascribing to the CA the following errors:

I.

THE CA ERRED WHEN IT SUSTAINED THE VALIDITY OF THE PETITIONER'S REMOVAL BY RESPONDENT
WYCOCO AS NBI DIRECTOR III (DEPUTY DIRECTOR).19

II.

THE CA ERRED IN HOLDING THAT SINCE THE PETITIONER HELD A CO-TERMINOUS APPOINTMENT, HE IS
TERMINABLE AT THE PLEASURE OF THE APPOINTING POWER.20

Citing Ambas v. Buenaseda21 and Decano v. Edu,22 the instant petition emphasizes that the power of removal is lodged in the
appointing authority. Wycoco, and not the President, issued Memorandum Circular (MC) No. 02-S.2004 informing Ong that his
co-terminous appointment as Director III ended effectively on June 30, 2004. The issuance of MC No. 02-S.2004 was allegedly
motivated by malice and revenge since Ong led the NBI employees in holding rallies in July 2003 to publicly denounce Wycoco.
Hence, Bessat's assumption of the position was null and void since it was technically still occupied by Ong at the time of the
former's appointment.

It is further alleged that it was erroneous for the CA to equate "an appointment co-terminous with the tenure of the appointing
authority with one that is at the pleasure of such appointing authority." 23 Citing Alba, etc.. v. Evangelista, etcl.,24 Ong's counsel
distinguished a "term" as "the time during which the officer may claim to hold office as of right" from a "tenure" which "represents
the term during which the incumbent actually holds the office". Ong's appointment, from which he cannot be removed without
just cause, was co-terminous with the President's tenure which ended not on June 30, 2004, but only on June 30, 2010.

Section 2(b), Article IX-G of the 1987 Constitution and Jocom v. Regalado25 are likewise cited to stress that government
employees, holding both career and non-career service positions, are entitled to protection from arbitrary removal or suspension.
In the case of Ong, who started his employment in 1978 and rose from the ranks, it is allegedly improper for the CA to impliedly
infer that the President acted in bad faith by converting his supposed promotional appointment to one removable at the pleasure
of the appointing authority.

In its Comment26 to the petition, the Office of the Solicitor General (OSG) maintains that the replacement of Ong by Bessat was
fair, just and in accord with the doctrine enunciated in Aklan College v. Guarino,27 and with Sections 1328 and 14,29 Rule V, Civil
Service Commission (CSC) Resolution No. 91-1631 issued on December 27, 1991. Section 13 substantially provides that only a
temporary appointment can be issued to a person who does not have the appropriate civil service eligibility. Section 14(2), on
the other hand, defines a co-terminous appointment as one co-existent with the tenure of the appointing authority or at his
pleasure. The last paragraph of Section 14 states that appointments which are co-terminous with the appointing authority shall
not be considered as permanent.

The OSG also points out that in issuing MC No. 02-S.2004, Wycoco did not remove Ong as Director III but merely reminded the
latter that after June 30, 2004, his appointment shall lapse into a  de facto/hold-over status unless he was re-appointed. Ong's
colleagues applied for re-appointment. Bessat was in fact re-appointed as Director II on August 13, 2004. Subsequently, on
December 1, 2004, the President appointed Bessat as Director III, effectively replacing Ong.

Further, the OSG claims that when Ong accepted promotional appointments in the Career Executive Service (CES) for which he
did not have the required eligibility, he became a temporary employee and had impliedly abandoned his right to security of
tenure.

Our Ruling

The petition is bereft of merit.

MC No. 02-S.2004 did not remove Ong from the position of Director III. Assuming arguendo that it did, the defect was
cured when the President, who was the appointing authority herself, in whose hands were lodged the power to remove,
appointed Bessat, effectively revoking Ong's appointment.

MC No. 02-S.2004,30 addressed to Ong, Bessat, Deputy Director Nestor Mantaring, and Regional Director Edward Villarta, in
part reads:

Records indicate your appointment status as "co-terminus" with the appointing power's tenure which ends effectively at midnight
of this day, 30 June 2004.

Unless, therefore, a new appointment is extended to you by Her Excellency GLORIA MACAPAGAL-ARROYO, consistent with
her new tenure effective 01 July 2004, your services shall lapse into a de facto/hold[-]over status, to ensure continuity of service,
until your replacements are appointed in your stead. 31
PoliRev Cases 1
On December 1, 2004, the President appointed Bessat as Ong's replacement. 32 Bessat was notified on December 17, 2004.
Wycoco furnished Ong with a Notice,33 dated December 20, 2004, informing the latter that he should cease from performing the
functions of Director III, effective December 17, 2004.

It is argued that in the hands of the appointing authority are lodged the power to remove. Hence, Wycoco allegedly acted
beyond the scope of his authority when he issued MC No. 02-S.2004.

This Court notes that MC No. 02-S.2004 did not in effect remove Ong from his post. It merely informed Ong that records of the
NBI showed that his co-terminous appointment had lapsed into a de facto/hold-over status. It likewise apprised him of the
consequences of the said status.

Be that as it may, if we were to assume for argument's sake that Wycoco removed Ong from his position as Director III by virtue
of the former's issuance of MC No. 02-S.2004, still, the defect was cured when the President herself issued Bessat's
appointment on December 1, 2004. The appointing authority, who in this case was the President, had effectively revoked Ong's
appointment.

Ong lacked the CES eligibility required for the position of Director III and his appointment was "co-terminus with the
appointing authority." His appointment being both temporary and co-terminous in nature, it can be revoked by the
President even without cause and at a short notice.

This Court likewise finds no error in the CA's ruling that since Ong held a co-terminous appointment, he was removable at the
pleasure of the appointing authority.

It is established that no officer or employee in the Civil Service shall be removed or suspended except for cause provided by
law.34 However, this admits of exceptions for it is likewise settled that the right to security of tenure is not available to those
employees whose appointments are contractual and co-terminous in nature. 35 1âwphi1

In the case at bar, Ong's appointment as Director III falls under the classifications provided in (a) Section 14(2) of the Omnibus
Rules Implementing Book V of the Administrative Code, to wit, that which is "co-existent with the tenure of the appointing
authority or at his pleasure"; and (b) Sections 13(b) 36 and 14(2)37 of Rule V, CSC Resolution No. 91-1631, or that which is both a
temporary and a co-terminous appointment. The appointment is temporary as Ong did not have the required CES eligibility.

The case of Amores v. Civil Service Commission, et al.38 is instructive anent the nature of temporary appointments in the CES to
which the position of Director III held by Ong belonged. The Court declared:

An appointment is permanent where the appointee meets all the requirements for the position to which he is being appointed,
including the appropriate eligibility prescribed, and it is  temporary where the appointee meets all the requirements for the
position except only the appropriate civil service eligibility.

xxxx

x x x Verily, it is clear that the possession of the required CES eligibility is that which will make an appointment in the career
executive service a permanent one. x x x

Indeed, the law permits, on many occasions, the appointment of non-CES eligibles to CES positions in the government in the
absence of appropriate eligibles and when there is necessity in the interest of public service to fill vacancies in the government.
But in all such cases, the appointment is at best merely temporary as it is said to be conditioned on the subsequent obtention of
the required CES eligibility. x x x

xxx

Security of tenure in the career executive service, which presupposes a permanent appointment, takes place upon passing the
CES examinations administered by the CES Board. x x x

At this juncture, what comes unmistakably clear is the fact that because petitioner lacked the proper CES eligibility and therefore
had not held the subject office in a permanent capacity, there could not have been any violation of petitioner’s supposed right to
security of tenure inasmuch as he had never been in possession of the said right at least during his tenure as Deputy Director
for Hospital Support Services. Hence, no challenge may be offered against his separation from office even if it be for no cause
and at a moment’s notice. Not even his own self-serving claim that he was competent to continue serving as Deputy Director
may actually and legally give even the slightest semblance of authority to his thesis that he should remain in office. Be that as it
may, it bears emphasis that, in any case, the mere fact that an employee is a CES eligible does not automatically operate to
vest security of tenure on the appointee inasmuch as the security of tenure of employees in the career executive service, except
first and second-level employees, pertains only to rank and not to the office or position to which they may be appointed.
[45]39 (underscoring supplied and citations omitted)

The Court is categorical in the Amores case that an appointee without the requisite CES eligibility cannot hold the position in a
permanent capacity. Temporary appointments are made if only to prevent hiatus in the government's rendition of public service.
However, a temporary appointee can be removed even without cause and at a moment's notice. As to those with eligibilities,
their rights to security of tenure pertain to ranks but not to the positions to which they were appointed.

Ong never alleged that at any time during which he held the Director III position, he had acquired the requisite eligibility. Thus,
the right to security of tenure did not pertain to him at least relative to the Director III position.
PoliRev Cases 1
The next logical query to be resolved then is whether or not Ong, as an appointee holding a position "co-terminus with the
appointing authority," was entitled to remain as Director III until the end of the President's tenure on June 30, 2010.

We likewise rule in the negative.

Both Section 14 of the Omnibus Rules Rules Implementing Book V of the Administrative Code and Section 14 (2) of Rule V,
CSC Resolution No. 91-1631 define a co-terminous appointment as one co-existent with the tenure of the appointing authority or
at his pleasure.

In Mita Pardo de Tavera v. Philippine Tuberculosis Society, Inc.40 cited by the CA in its decision, we sustained the replacement
of an incumbent, who held an appointment at the pleasure of the appointing authority. Such appointment was in essence
temporary in nature. We categorized the incumbent's replacement not as removal but rather as an expiration of term and no
prior notice, due hearing or cause were necessary to effect the same. In Decano v. Edu,41 we ruled that the acceptance of a
temporary appointment divests an appointee of the right to security of tenure against removal without cause. Further, in Carillo
vs. CA,42 we stated that "one who holds a temporary appointment has no fixed tenure of office; his employment can be
terminated at the pleasure of the appointing authority, there being no need to show that the termination is for cause."

In Ong's case, his appointment was temporary and co-terminous. The doctrines enunciated in the cases of Mita Pardo de
Tavera, Decano, and Carillo  apply. Hence, no legal challenge can be properly posed against the President's appointment of
Bessat as Ong's replacement. The CA correctly ruled that in quo warranto proceedings, the petitioner must show that he has a
clear right to the office allegedly held unlawfully by another and in the absence of the said right, the lack of qualification or
eligibility of the supposed usurper is immaterial. Stated differently, where a non-eligible holds a temporary appointment, his
replacement by another non-eligible is not prohibited.43

We note that Ong's counsel had painstakingly drawn distinctions between a term and a tenure. It is argued that since Ong's
appointment was co-terminous with the appointing authority, it should not had lapsed into a de facto status but continued until
the end of the President's tenure on June 30, 2010.

Under the Omnibus Rules Implementing the Revised Administrative Code and CSC Resolution No. 91-1631, a co-terminous
appointment is defined as one "co-existing with the tenure of the appointing authority or at his pleasure." Neither law nor
jurisprudence draws distinctions between appointments "co-existing with the term of the appointing authority" on one hand, and
one "co-existing with the appointing authority's tenure" on the other. In the contrary, under the aforecited rules, tenure and term
are used rather loosely and interchangeably.

In Ong's case, the issues needed to be disposed of revolve around the concepts of temporary and co-terminous appointments.
The distinctions between term and tenure find no materiality in the instant petition. Besides, whether or not the President's term
ended on June 30, 2004 or her tenure ceased on June 30, 2010, the fact remains that she appointed Bessat as Director III, in
effect revoking Ong's temporary and co-terminous appointment.

This Court recognizes Ong's lengthy service rendered to the government and deeply commisserates with his earlier plight.
However, we cannot grant Ong the reliefs he sought as law and jurisprudence clearly dictate that being a temporary and co-
terminous appointee, he had no vested rights over the position of Director III.

IN VIEW OF THE FOREGOING, the petition is DENIED. The Decision rendered by the Court of Appeals on August 5, 2008 in
CA-G.R. SP No. 88673 is AFFIRMED.

SO ORDERED.
PoliRev Cases 1
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 104732 June 22, 1993

ROBERTO A. FLORES, DANIEL Y. FIGUEROA, ROGELIO T. PALO, DOMINGO A. JADLOC, CARLITO T. CRUZ and
MANUEL P. REYES, petitioner,
vs.
HON. FRANKLIN M. DRILON, Executive Secretary, and RICHARD J. GORDON, respondents.

Isagani M. Jungco, Valeriano S. Peralta, Miguel Famularcano, Jr. and Virgilio E. Acierto for petitioners.

BELLOSILLO, J.:

The constitutionality of Sec. 13, par. (d), of R.A. 7227, 1 otherwise known as the "Bases Conversion and Development Act of
1992," under which respondent Mayor Richard J. Gordon of Olongapo City was appointed Chairman and Chief Executive Officer
of the Subic Bay Metropolitan Authority (SBMA), is challenged in this original petition with prayer for prohibition, preliminary
injunction and temporary restraining order "to prevent useless and unnecessary expenditures of public funds by way of salaries
and other operational expenses attached to the office . . . ." 2 Paragraph (d) reads —

(d) Chairman administrator  — The President shall appoint a professional manager as administrator of the
Subic Authority with a compensation to be determined by the Board subject to the approval of the Secretary of
Budget, who shall be the ex oficio chairman of the Board and who shall serve as the chief executive officer of
the Subic Authority: Provided, however, That for the first year of its operations from the effectivity of this Act,
the mayor of the City of Olongapo shall be appointed as the chairman and chief executive officer of the Subic
Authority (emphasis supplied).

Petitioners, who claim to be taxpayers, employees of the U.S. Facility at the Subic, Zambales, and officers and members of the
Filipino Civilian Employees Association in U.S. Facilities in the Philippines, maintain that the proviso in par. (d) of Sec. 13 herein-
above quoted in italics infringes on the following constitutional and statutory provisions: (a) Sec. 7, first par., Art. IX-B, of the
Constitution, which states that "[n]o elective official shall be eligible for appointment or designation in any capacity to any public
officer or position during his tenure,"3 because the City Mayor of Olongapo City is an elective official and the subject posts are
public offices; (b) Sec. 16, Art. VII, of the Constitution, which provides that "[t]he President shall . . . . 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",4 since it was Congress through the questioned proviso and not the President who appointed the Mayor to the subject
posts;5 and, (c) Sec. 261, par. (g), of the Omnibus Election Code, which says:

Sec. 261. Prohibited Acts. — The following shall be guilty of an election offense: . . . (g) Appointment of new
employees, creation of new position, promotion, or giving salary increases. — During the period of forty-five
days before a regular election and thirty days before a special election, (1) any head, official or appointing
officer of a government office, agency or instrumentality, whether national or local, including government-
owned or controlled corporations, who appoints or hires any new employee, whether provisional, temporary or
casual, or creates and fills any new position, except upon prior authority of the Commission. The Commission
shall not grant the authority sought unless it is satisfied that the position to be filled is essential to the proper
functioning of the office or agency concerned, and that the position shall not be filled in a manner that may
influence the election. As an exception to the foregoing provisions, a new employee may be appointed in case
of urgent need: Provided, however, That notice of the appointment shall be given to the Commission within
three days from the date of the appointment. Any appointment or hiring in violation of this provision shall be null
and void. (2) Any government official who promotes, or gives any increase of salary or remuneration or
privilege to any government official or employee, including those in government-owned or controlled
corporations . . . .

for the reason that the appointment of respondent Gordon to the subject posts made by respondent Executive Secretary on 3
April 1992 was within the prohibited 45-day period prior to the 11 May 1992 Elections.

The principal question is whether the proviso in Sec. 13, par. (d), of R.A. 7227 which states, "Provided, however, That for the
first year of its operations from the effectivity of this Act, the mayor of the City of Olongapo shall be appointed as the chairman
and chief executive officer of the Subic Authority," violates the constitutional proscription against appointment or designation of
elective officials to other government posts.

In full, Sec. 7 of Art. IX-B of the Constitution provides:

No elective official shall be eligible for appointment or designation in any capacity to any public office or
position during his tenure.
PoliRev Cases 1
Unless otherwise allowed by law or by the primary functions of his position, 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.

The section expresses the policy against the concentration of several public positions in one person, so that a public officer or
employee may serve full-time with dedication and thus be efficient in the delivery of public services. It is an affirmation that a
public office is a full-time job. Hence, a public officer or employee, like the head of an executive department described in Civil
Liberties Union v. Executive Secretary, G.R. No. 83896, and Anti-Graft League of the Philippines, Inc. v. Philip Ella C. Juico, as
Secretary of Agrarian Reform, G.R. No. 83815,6 ". . . . should be allowed to attend to his duties and responsibilities without the
distraction of other governmental duties or employment. He should be precluded from dissipating his efforts, attention and
energy among too many positions of responsibility, which may result in haphazardness and inefficiency . . . ."

Particularly as regards the first paragraph of Sec. 7, "(t)he basic idea really is to prevent a situation where a local elective official
will work for his appointment in an executive position in government, and thus neglect his constituents . . . ." 7

In the case before us, the subject  proviso  directs the President to appoint an elective official, i.e., the Mayor of Olongapo City, to
other government posts (as Chairman of the Board and Chief Executive Officer of SBMA). Since this is precisely what the
constitutional proscription seeks to prevent, it needs no stretching of the imagination to conclude that the  proviso  contravenes
Sec. 7, first par., Art. IX-B, of the Constitution. Here, the fact that the expertise of an elective official may be most beneficial to
the higher interest of the body politic is of no moment.

It is argued that Sec. 94 of the Local Government Code (LGC) permits the appointment of a local elective official to another post
if so allowed by law or by the primary functions of his office.8 But, the contention is fallacious. Section 94 of the LGC is not
determinative of the constitutionality of Sec. 13, par. (d), of R.A. 7227, for no legislative act can prevail over the fundamental law
of the land. Moreover, since the constitutionality of Sec. 94 of LGC is not the issue here nor is that section sought to be declared
unconstitutional, we need not rule on its validity. Neither can we invoke a practice otherwise unconstitutional as authority for its
validity.

In any case, the view that an elective official may be appointed to another post if allowed by law or by the primary functions of
his office, ignores the clear-cut difference in the wording of the two (2) paragraphs of Sec. 7, Art.
IX-B, of the Constitution. While the second paragraph authorizes holding of multiple offices by an appointive  official when
allowed by law or by the primary functions of his position, the first paragraph appears to be more stringent by not providing any
exception to the rule against appointment or designation of an elective official to the government post, except as are particularly
recognized in the Constitution itself, e.g., the President as head of the economic and planning agency; 9 the Vice-President, who
may be appointed Member of the Cabinet; 10 and, a member of Congress who may be designated ex officio member of the
Judicial and Bar Council. 11

The distinction between the first and second paragraphs of Sec. 7, Art. IX-B, was not accidental when drawn, and not without
reason. It was purposely sought by the drafters of the Constitution as shown in their deliberation, thus —

MR. MONSOD. In other words, what then Commissioner is saying, Mr. Presiding Officer, is that the prohibition
is more strict with respect to elective officials, because in the case of appointive officials, there may be a law
that will allow them to hold other positions.

MR. FOZ. Yes, I suggest we make that difference, because in the case of appointive officials, there will be
certain situations where the law should allow them to hold some other positions. 12

The distinction being clear, the exemption allowed to appointive officials in the second paragraph cannot be extended to elective
officials who are governed by the first paragraph.

It is further argued that the SBMA posts are merely ex officio to the position of Mayor of Olongapo City, hence, an excepted
circumstance, citing Civil Liberties Union v. Executive Secretary, 13 where we stated that the prohibition against the holding of
any other office or employment by the President, Vice-President, Members of the Cabinet, and their deputies or assistants
during their tenure, as provided in Sec. 13, Art. VII, of the Constitution, does not comprehend additional duties and
functions required by the primary functions of the officials concerned, who are to perform them in an ex officio capacity as
provided by law, without receiving any additional compensation therefor.

This argument is apparently based on a wrong premise. Congress did not contemplate making the subject SBMA posts as ex
officio  or automatically attached to the Office of the Mayor of Olongapo City without need of appointment. The phrase "shall be
appointed" unquestionably shows the intent to make the SBMA posts appointive and not merely adjunct to the post of Mayor of
Olongapo City. Had it been the legislative intent to make the subject positions ex officio, Congress would have, at least, avoided
the word "appointed" and, instead, "ex officio" would have been used. 14

Even in the Senate deliberations, the Senators were fully aware that subject proviso may contravene Sec. 7, first par., Art. IX-B,
but they nevertheless passed the bill and decided to have the controversy resolved by the courts. Indeed, the Senators would
not have been concerned with the effects of Sec. 7, first par., had they considered the SBMA posts as ex officio.

Cognizant of the complication that may arise from the way the subject proviso  was stated, Senator Rene Saguisag remarked
that "if the Conference Committee just said "the Mayor shall be the Chairman" then that should foreclose the issue. It is a
legislative choice." 15 The Senator took a view that the constitutional proscription against appointment of elective officials may
have been sidestepped if Congress attached the SBMA posts to the Mayor of Olongapo City instead of directing the President to
appoint him to the post. Without passing upon this view of Senator Saguisag, it suffices to state that Congress intended the
posts to be appointive, thus nibbling in the bud the argument that they are ex officio.
PoliRev Cases 1
The analogy with the position of Chairman of the Metro Manila Authority made by respondents cannot be applied to uphold the
constitutionality of the challenged proviso since it is not put in issue in the present case. In the same vein, the argument that if
no elective official may be appointed or designated to another post then Sec. 8, Art. IX-B, of the Constitution allowing him to
receive double compensation 16 would be useless, is non sequitur since Sec. 8 does not affect the constitutionality of the
subject  proviso. In any case, the Vice-President for example, an elective official who may be appointed to a cabinet post under
Sec. 3, Art. VII, may receive the compensation attached to the cabinet position if specifically authorized by law.

Petitioners also assail the legislative encroachment on the appointing authority of the President. Section 13, par. (d), itself vests
in the President the power to appoint the Chairman of the Board and the Chief Executive Officer of SBMA, although he really
has no choice under the law but to appoint the Mayor of Olongapo City.

As may be defined, an "appointment" is "[t]he designation of a person, by the person or persons having authority therefor, to
discharge the duties of some office or trust," 17 or "[t]he selection or designation of a person, by the person or persons having
authority therefor, to fill an office or public function and discharge the duties of the same. 18 In his treatise, Philippine Political
Law, 19 Senior Associate Justice Isagani A. Cruz defines appointment as "the selection, by the authority vested with the power,
of an individual who is to exercise the functions of a given office."

Considering that appointment calls for a selection, the appointing power necessarily exercises a discretion. According to
Woodbury, J., 20 "the choice  of a person to fill an office constitutes the essence of his appointment," 21 and Mr. Justice Malcolm
adds that an "[a]ppointment to office is intrinsically an executive act involving the exercise of discretion." 22 In Pamantasan ng
Lungsod ng Maynila v. Intermediate Appellate Court  23 we held:

The power to appoint is, in essence, discretionary. The appointing power has the right of choice which he may
exercise freely according to his judgment, deciding for himself who is best qualified among those who have the
necessary qualifications and eligibilities. It is a prerogative of the appointing power . . . .

Indeed, the power of choice is the heart of the power to appoint. Appointment involves an exercise of discretion of whom to
appoint; it is not a ministerial act of issuing appointment papers to the appointee. In other words, the choice of the appointee is a
fundamental component of the appointing power.

Hence, when Congress clothes the President with the power to appoint an officer, it (Congress) cannot at the same time limit the
choice of the President to only one candidate. Once the power of appointment is conferred on the President, such conferment
necessarily carries the discretion of whom to appoint. Even on the pretext of prescribing the qualifications of the officer,
Congress may not abuse such power as to divest the appointing authority, directly or indirectly, of his discretion to pick his own
choice. Consequently, when the qualifications prescribed by Congress can only be met by one individual, such enactment
effectively eliminates the discretion of the appointing power to choose and constitutes an irregular restriction on the power of
appointment. 24

In the case at bar, while Congress willed that the subject posts be filled with a presidential appointee for the first year of its
operations from the effectivity of R.A. 7227, the proviso nevertheless limits the appointing authority to only one eligible, i.e., the
incumbent Mayor of Olongapo City. Since only one can qualify for the posts in question, the President is precluded from
exercising his discretion to choose whom to appoint. Such supposed power of appointment, sans the essential element of
choice, is no power at all and goes against the very nature itself of appointment.

While it may be viewed that the  proviso merely sets the qualifications of the officer during the first year of operations of
SBMA, i.e., he must be the Mayor of Olongapo City, it is manifestly an abuse of congressional authority to prescribe
qualifications where only one, and no other, can qualify. Accordingly, while the conferment of the appointing power on the
President is a perfectly valid legislative act, the proviso limiting his choice to one is certainly an encroachment on his
prerogative.

Since the ineligibility of an elective official for appointment remains all throughout his tenure or during his incumbency, he may
however resign first from his elective post to cast off the constitutionally-attached disqualification before he may be considered fit
for appointment. The deliberation in the Constitutional Commission is enlightening:

MR. DAVIDE. On Section 4, page 3, line 8, I propose the substitution of the word "term" with TENURE.

MR. FOZ. The effect of the proposed amendment is to make possible for one to resign from his position.

MR. DAVIDE. Yes, we should allow that prerogative.

MR. FOZ. Resign from his position to accept an executive position.

MR. DAVIDE. Besides, it may turn out in a given case that because of, say, incapacity, he may leave the
service, but if he is prohibited from being appointed within the term for which he was elected, we may be
depriving the government of the needed expertise of an individual. 25

Consequently, as long as he is an incumbent, an elective official remains ineligible for appointment to another public office.

Where, as in the case of respondent Gordon, an incumbent elective official was, notwithstanding his ineligibility, appointed to
other government posts, he does not automatically forfeit his elective office nor remove his ineligibility imposed by the
Constitution. On the contrary, since an incumbent elective official is not eligible to the appointive position, his appointment or
designation thereto cannot be valid in view of his disqualification or lack of eligibility. This provision should not be confused with
Sec. 13, Art. VI, of the Constitution where "(n)o Senator or Member of the House of Representatives may hold any other office or
PoliRev Cases 1
employment in the Government . . . during his term without forfeiting his seat . . . ." The difference between the two provisions is
significant in the sense that incumbent national legislators lose their elective posts only after they have been appointed to
another government office, while other incumbent elective officials must first resign their posts before they can be appointed,
thus running the risk of losing the elective post as well as not being appointed to the other post. It is therefore clear that
ineligibility is not directly related with forfeiture of office. ". . . . The effect is quite different where it is expressly  provided  by law
that a person holding one office shall be ineligible to another. Such a provision is held to incapacitate the incumbent of an office
from accepting or holding a second office (State ex rel. Van Antwerp v Hogan, 283 Ala. 445, 218 So 2d 258; McWilliams v Neal,
130 Ga 733, 61 SE 721) and to render his election or appointment to the latter office void (State ex rel. Childs v Sutton, 63 Minn
147, 65 NW 262. Annotation: 40 ALR 945) or voidable (Baskin v State, 107 Okla 272, 232 p 388, 40 ALR 941)." 26 "Where the
constitution, or statutes declare that persons holding one office shall be ineligible for election or appointment to another office,
either generally or of a certain kind, the prohibition has been held to incapacitate the incumbent of the first office to hold the
second so that any attempt to hold the second is void (Ala. — State ex rel. Van Antwerp v. Hogan, 218 So 2d 258, 283 Ala
445)." 27

As incumbent elective official, respondent Gordon is ineligible for appointment to the position of Chairman of the Board and
Chief Executive of SBMA; hence, his appointment thereto pursuant to a legislative act that contravenes the Constitution cannot
be sustained. He however remains Mayor of Olongapo City, and his acts as SBMA official are not necessarily null and void; he
may be considered a de facto officer, "one whose acts, though not those of a lawful officer, the law, upon principles of policy and
justice, will hold valid so far as they involve the interest of the public and third persons, where the duties of the office were
exercised . . . . under color of a known election or appointment, void because the officer was not eligible, or because there was a
want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want
of power or defect being unknown to the public . . . . [or] under color of an election, or appointment, by or pursuant to a public
unconstitutional law, before the same is adjudged to be such (State vs. Carroll, 38 Conn., 499; Wilcox vs. Smith, 5 Wendell
[N.Y.], 231; 21 Am. Dec., 213; Sheehan's Case, 122 Mass, 445, 23 Am. Rep., 323)." 28

Conformably with our ruling in Civil Liberties Union, any and all per diems, allowances and other emoluments which may have
been received by respondent Gordon pursuant to his appointment may be retained by him.

The illegality of his appointment to the SBMA posts being now evident, other matters affecting the legality of the
questioned  proviso  as well as the appointment of said respondent made pursuant thereto need no longer be discussed.

In thus concluding as we do, we can only share the lament of Sen. Sotero Laurel which he expressed in the floor deliberations of
S.B. 1648, precursor of R.A. 7227, when he articulated —

. . . . (much) as we would like to have the present Mayor of Olongapo City as the Chief Executive of this
Authority that we are creating; (much) as I, myself, would like to because I know the capacity, integrity, industry
and dedication of Mayor Gordon; (much) as we would like to give him this terrific, burdensome and heavy
responsibility, we cannot do it because of the constitutional prohibition which is very clear. It says: "No elective
official shall be appointed or designated to another position in any capacity." 29

For, indeed, "a Constitution must be firm and immovable, like a mountain amidst the strife of storms or a rock in the ocean
amidst the raging of the waves." 30 One of the characteristics of the Constitution is permanence, i.e., "its capacity to resist
capricious or whimsical change dictated not by legitimate needs but only by passing fancies, temporary passions or occasional
infatuations of the people with ideas or personalities . . . . Such a Constitution is not likely to be easily tampered with to suit
political expediency, personal ambitions or ill-advised agitation for change." 31

Ergo, under the Constitution, Mayor Gordon has a choice. We have no choice.

WHEREFORE, the proviso in par. (d), Sec. 13, of R.A. 7227, which states: ". . . Provided, however, That for the first year of its
operations from the effectivity of this Act, the Mayor of the City of Olongapo shall be appointed as the chairman and chief
executive officer of the Subic Authority," is declared unconstitutional; consequently, the appointment pursuant thereto of the
Mayor of Olongapo City, respondent Richard J. Gordon, is INVALID, hence NULL and VOID.

However, all per diems, allowances and other emoluments received by respondent Gordon, if any, as such Chairman and Chief
Executive Officer may be retained by him, and all acts otherwise legitimate done by him in the exercise of his authority as
officer de facto of SBMA are hereby UPHELD.

SO ORDERED.
PoliRev Cases 1
Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-39451 February 20, 1989

ISIDRO M. JAVIER, petitioner-appellee,
vs.
PURIFICACION C. REYES, respondents-appellant.**

Victorino B. Aldaba for petitioner-appellee.

Jesus R. Mabagos for respondent-appellant.

SARMIENTO, J.:

Before the Court is a certified case involving pure questions of law. The facts, as found by the trial court, are as follows:

...It is alleged that petitioner was the duly appointed Chief of Police of Malolos, Bulacan, on November 7, 1967
by the then Mayor Victorino B. Aldaba, which appointment was confirmed and approved by the Municipal
Council of the said municipality on the same date as per Resolution No. 210, Series of 1967; that the following
day, petitioner took his oath of office and thereafter assumed and discharged the rights, prerogatives and
duties of the office; that on January 3, 1968, pending approval and attestation of his appointment by the Civil
Service Commission, respondent, who had then assumed the office of Municipal Mayor, recalled petitioner's
appointment from the Civil Service Commission in her letter of said date; that not satisfied with her letter of
recall, respondent summarily, arbitrarily and illegally ousted and relieved petitioner as Chief of Police and at the
same time, designated Police Lt. Romualdo F. Clements, a non-eligible, as Officer-in-Charge of the Police
Department, in her memorandum dated January 12, 1968, that on February 2, 1968, pursuant to the letter of
recall, the Civil Service Commission returned the appointment papers of petitioner without action, duly
excepted to by petitioner in his motion for reconsideration dated February 16, 1968; that on May 2, 1968, the
Civil Service Commission attested and approved the appointment of petitioner as such Chief of Police, in its 3rd
Indorsement, pertinent portion of which reads as follows:

In view of Resolution No. 185 adopted by the Municipal Council of Malolos, Bulacan, in its meeting of
September 26, 1967, notifying this Office that the appointment of Mr, Bayani Bernardo as Chief of Police of
Malolos has not been confirmed by said Council, and as the consent of the Municipal Council is a mandatory
requirement under Section 1 of Rep. Act 1551, the said appointment is considered null and void. In view
thereof, the attached appointment of Mr. Isidro M. Javier has been approved as permanent under Section 24
(b) of R.A. 2260...;

that in its letter to respondent dated July 9, 1968 wherein its ruling contained in the aforequoted 3rd
Indorsement was reiterated, the Civil Service Commission directed respondent "that steps be taken
immediately to install Mr. Javier as Chief of Police of that Municipality (Malolos)"; that notwithstanding the
aforementioned ruling and directive, respondent neglected and refused to reinstate petitioner to tile position of
Chief of Police of Malolos which act is specifically enjoined upon her as Municipal Mayor and public officer, in
Sec. 19, Article IV of Rep. Act 2260 otherwise known as the Civil Service Act o)f 1959; that as a result of
respondent's refusal to perform the act enjoined upon her by law, petitioner was deprived of his salary since
November 8, 1967 up to his ouster on January 13, 1968 and from then on up to the present; that as a further
consequence of the inaction of respondent, petitioner suffered social humiliation and embarrassment, was
exposed to public ridicule, causing him mental anguish thereby sustaining moral damages in the amount of
P5,000.00 and was forced to engage counsel to prosecute his rights for the sum of Pl,000.00 attorney's fees.

Respondent denies the material allegations of the petition and as special and affirmative defenses alleges that
one Bayani Bernardo was appointed Chief of Police of Malolos by the then Mayor Jovencio C. Caluag on
September 4, 1967; that likewise, Isidro M. Javier, petitioner herein, was appointed Chief of Police of the same
municipality on November 8, 1967 by the then Mayor Victorino B. Aldaba, both of which appointments were
approved by the Civil Service Commission; that in justifying the approval of the appointment of Bayani
Bernardo, despite lack of consent of the Municipal Council, the Civil Service Commission stated in its 7th
indorsement dated January 17, 1968, as follows:

...The non-retention of the phrase "With the consent of the Municipal Council " found in Section lf of the
Republic Act No. 1551 (effective June 16, 1966) which, insofar as pertinent, x x x only shows the clear intention
of the lawmaking body to amend the provision first above quoted by the Police Act of 1966 which vest in the
Mayor the sole authority to appoint members of the police force with exception of course, of cities whose
charters may require the participation of the council in such matters. Furthermore, the Decentralization Act of
1967 (effective September 12, 1967) does not require the consent of the Municipal Council on the appointment
of policemen. ...

that the same Commission, however, in approving the appointment of petitioner Isidro Javier, stated in its 3rd
indorsement of May 2, 1968, as follows:
PoliRev Cases 1
... In view of Resolution No. 185 adopted by the Municipal Council of Malolos, Bulacan, in its meeting of
September 26, 1967 notifying this Office that the appointment of Mr. Bayani Bernardo Chief of Police of
Malolos, Bulacan has not been confirmed by said Council as the consent of the Municipal Council is a
mandatory requirement under Sec. 1 of Republic Act 1551, the said appointment is considered null and void. In
view thereof, the attached appointment of Mr. Isidro M. Javier has been approved ...

that in view of the obvious conflict of both actions of the Civil Service Commission which virtually renders the
two appointments apparently valid, respondent is placed in a set of circumstances wherein her action in favor
of either of the appointees may render her personally liable for salaries and other damages in favor of the
other.

Having been granted the right to intervene, Bayani Bernardo moved to dismiss the petition on the grounds that
the cause of action of petitioner has already prescribed and/or is barred by the Statute of Limitations and that
the present petition is not founded on a clear, complete, undisputed and indubitable legal right. However,
having been filed out of time, the motion to dismiss was not resolved and intervenor was declared in default in
the order of this Court dated September 26,1969.

The following facts have been admitted by the parties: that petitioner Isidro M. Javier was appointed Chief of
Police of Malolos, Bulacan on November 7,1967 by the then Mayor Victorino B. Aldaba, and approved by the
Civil Service Commission on May 2, 1968; that petitioner took his oath of office as such on November 8, 1967
and immediately assumed the position and discharged his duties until January 13, 1968 when he was
separated from office by respondent Municipal Mayor Purificacion Reyes; that respondent recalled the said
appointment of petitioner on January 3,1968 pursuant to which said appointment was returned by the Civil
Service Commission returning his appointment on the basis of which the said commission reconsidered the
same and approved his appointment on May 2, 1968; that since May 2, 1968 to the present, respondent has
not reinstated the petitioner notwithstanding a follow-up letter circular dated July 9, 1968 of the Commission of
Civil Service, directing the immediate reinstatement of petitioner; that one Bayani Bernardo was also appointed
Chief of Police of Malolos, Bulacan on September 4,1967, approved by the Commissioner of Civil Service on
September 17,1967; and that said appointment of Bayani Bernardo by the then Mayor Jovencio Caluag was
not referred to the Police Commission for decision. (pp. 164-168, Record) 1

The legal questions involved are as follows:

(1) When an appointment to the position of municipal chief of police was made by a municipal mayor and said
appointment was not approved by the municipal council and such lack of approval lasted for more than ninety
(90) days from the issuance of the appointment, will Sec. 8 of R.A. 4864, otherwise known as the Police Act of
1966 apply?

(2) When two appointments to one and the same position were both approved by the Civil Service Commission
on the basis of two legal provisions, which one will prevail over the other ? (Pp. 1-2, Appellant's Brief) 2

The Court finds that preeminently, the question is: Between the petitioner's appointment and that of Bayani Bernardo, which
prevails?

It shall be recalled that the petitioner was appointed Chief of Police of Malolos, Bulacan, on November 7, 1967, by then Mayor
Victorino Aldaba and the following day, took his oath of office. He discharged the powers of the office until January 13, 1968
when the respondent, who had meanwhile succeeded as local chief executive, and in an apparent political maneuver, removed
him in favor of Bayani Bernardo.

On the other hand, Bernardo never assumed office or took his oath. It cannot be said, then, that he had accepted his
appointment. Such an appointment being ineffective, we hold that the petitioner's appointment prevails.

Acceptance is indispensable to complete an appointment. The fact that Bernardo's appointment was confirmed by the Civil
Service Commission does not complete it since confirmation or attestation by the Commission, although an essential part of the
appointing process, 3 serves merely to assure the eligibility of the appointee. 4

Furthermore, Bernardo never contested the petitioner's right to office. He did, of course, intervene in the mandamus suit, but it
was a belated effort to assert his alleged rights. It is not indicative of an interested party. It was too little and too late.

Bernardo's argument that he had thought it "prudent" 5 to await a clarification on the double appointments comes as a lame
excuse. He should have challenged the petitioner's subsequent appointment, rather than allow events to take their course. The
Court believes that he is guilty of laches.

On the other hand, we cannot say the same thing as far as the petitioner is concerned. The records show that he was appointed
on November 7, 1967, and the following day, November 8, 1967, he took his oath of office and discharged the duties
appurtenant thereto until January 13, 1968, when the succeeding mayor, the herein respondent Purificacion Reyes, recalled his
appointment and appointed another. Thereupon, the petitioner went to the Civil Service Commission to ask for reinstatement.
Finally, he brought suit for mandamus. These acts amounted to acceptance and gave rise to a vested right to the office in his
favor. 6

This case should be distinguished from Cristobal v. Melchor, 7 where we held that a party is not precluded by laches from
pursuing reinstatement (notwithstanding the lapse of the one-year period within which to sue on quo warranto.) In that case, we
were impressed by the efforts of the dismissed employee to seek reinstatement upon assurances from his superiors that one
would be forthcoming. Moreover, we said that Ingles v. Mutuc,  8  in which we ordered reinstatement, was the law of the case
PoliRev Cases 1
among the parties, although the dismissed employee was not a party thereto. In the case at bar, Bayani Bernardo never
undertook steps that would have convinced us that he was interested in, or had accepted, the appointment. Let the Court say
that it would have been differently minded had he done so. 9

Under the circumstances, there is no necessity in delving on the questions raised at the outset. Our findings herein render them
moot, and academic.

WHEREFORE, the respondent Mayor, or her successor in office, as well as the respondent, the Municipality of Malolos,
Bulacan, are ORDERED to REINSTATE the petitioner to office of Chief of Police, Malolos, Bulacan, or its equivalent, or to any
position equivalent in rank and pay, subject to the requirements of age and fitness, and to PAY him back salaries equivalent to
five (5) years without qualification or deduction.

SO ORDERED.
PoliRev Cases 1
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 93023             March 13, 1991

TOMAS D. ACHACOSO, petitioner
vs.
CATALINO MACARAIG and RUBEN D. TORRES, in their capacities as Executive Secretary and Secretary of the
Department of Labor and Employment (DOLE), respectively; and JOSE N. SARMIENTO, respondents.

Padilla, Jimenez, Kintanar and Asuncion Law Office for petitioner.

CRUZ, J.:

The petitioner invokes security of tenure against his claimed removal without legal cause. The respondents assert he is not
entitled to the guaranty because he is not a career official. These are the legal issues. The facts are as follows:

Tomas D. Achacoso was appointed Administrator of the Philippine Overseas Employment Administration on October 16, 1987,
and assumed office on October 27, 1987. On January 2, 1990, in compliance with a request addressed by the President of the
Philippines to "all Department Heads, Undersecretaries, Assistant Secretaries, Bureau Heads," and other government officials,
he filed a courtesy resignation. This was accepted by the President on April 3, 1990, "with deep regrets." On April 10, 1990, the
Secretary of Labor requested him to turn over his office to the Deputy Administrator as officer in-charge. In a letter dated April
19, 1990, he protested his replacement and declared he was not surrendering his office because his resignation was not
voluntary but filed only in obedience to the President's directive. On the same date, respondent Jose N. Sarmiento was
appointed Administrator of the POEA, vice the petitioner. Achacoso was informed thereof the following day and was again asked
to vacate his office. He filed a motion for reconsideration on April 23, 1990, but this was denied on April 30, 1990. He then came
to this Court for relief.

In this petition for prohibition and mandamus, this Court is asked to annul the appointment of Sarmiento and to prohibit the
respondents from preventing the petitioner from discharging his duties as Administrator of the POEA.

Achacoso contends that he is a member of the Career Service of the Civil Service and so enjoys security of tenure, which is one
of the characteristics of the Career Service as distinguished from the Non-Career Service. 1 Claiming to have the rank of
undersecretary, he says he comes under Article IV, Section 5 of P.D. 807, otherwise known as the Civil Service Decree, which
includes in the Career Service:

3. Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary, Bureau Director, Assistant
Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of
equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the
President.

His argument is that in view of the security of tenure enjoyed by the above-named officials, it was "beyond the prerogatives of
the President" to require them to submit courtesy resignations. Such courtesy resignations, even if filed, should be disregarded
for having been submitted "under duress," as otherwise the President would have the power to remove career officials at
pleasure, even for capricious reasons. In support of this contention, he invokes Ortiz vs. Commission on Elections,2 where we
observed that "to constitute a complete and operative act of resignation, the officer or employee must show a clear intention to
relinquish" and that "a courtesy resignation cannot properly be interpreted as a resignation in the legal sense for it is not
necessarily a reflection of a public official's intention to surrender his position." He concludes that as his removal was illegal,
there was no vacancy in the disputed office to which respondent Sarmiento could have been validly appointed.

In his Comment, the Solicitor General concedes that the office of POEA Administrator is a career executive service position but
submits that the petitioner himself is not a career executive service official entitled to security of tenure. He offers the following
certification from the Civil Service Commission to show that the petitioner did not possess the necessary qualifications when he
was appointed Administrator of the POEA in 1987:

CERTIFICATION

This is to certify that per records of the Career Executive Service Board (CESB), Mr. Tomas D. Achacoso III has not participated
in a Career Executive Service Development Program (CESDP) and is not a CES eligible. This is to certify further that Mr.
Achacoso was not appointed to a rank in the CES and is not therefore a member of the Career Executive Service.

x x x           x x x          x x x

(Sgd.) ELMOR D. JURIDICO

Executive Director

Reference is also made to the following rules embodied in Part III, Article IV, Integrated Reorganization Plan as approved by
P.D. 1 and amended by P.D. 336 and P.D. 337, on the career executive service:
PoliRev Cases 1
c. Appointment. Appointment to appropriate classes in the Career Service shall be made by the President  from a list of
career executive eligibles recommended by the Board. Such appointments shall be made on the basis of rank; provided
that appointments to the higher ranks which qualify the incumbents to assignments as undersecretary and heads of the
bureaus and offices and equivalent positions shall be with the confirmation of the Commission on Appointments. The
President may, however, in exceptional cases, appoint any person who is not a Career Executive Service eligible,
provided that such appointee shall subsequently take the required Career Executive Service examination and that he
shall not be promoted to a higher class until he qualifies in such examination. (Emphasis supplied.)

The respondents contend that as the petitioner was not a career executive service eligible at the time of his appointment, he
came under the exception to the above rule and so was subject to the provision that he "shall subsequently take the required
Career Executive Service examination and that he shall not be promoted to a higher rank until he qualifies in such examination."
Not having taken that examination, he could not claim that his appointment was permanent and guaranteed him security of
tenure in his position.

It is settled that a permanent appointment can be issued only "to a person who meets all the requirements for the position to
which he is being appointed, including the appropriate eligibility prescribed." Achacoso did not. At best, therefore, his
appointment could be regarded only as temporary. And being so, it could be withdrawn at will by the appointing authority and "at
a moment's notice," conformably to established jurisprudence.

The Court, having considered these submissions and the additional arguments of the parties in the petitioner's Reply and the
Solicitor-General's Rejoinder, must find for the respondents.

The mere fact that a position belongs to the Career Service does not automatically confer security of tenure on its occupant
even if he does not possess the required qualifications. Such right will have to depend on the nature of his 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, only as an exception to the rule, may be appointed to it merely in an acting capacity in the
absence of appropriate eligibles.3

The appointment extended to him cannot be regarded as permanent even if it may be so designated.

The purpose of an acting or temporary appointment is to prevent a hiatus in the discharge of official functions by authorizing a
person to discharge the same pending the selection of a permanent or another appointee. 4 The person named in an acting
capacity accepts the position under the condition that he shall surrender the office once he is called upon to do so by the
appointing authority.

In these circumstances, the acting appointee is separated by a method of terminating official relations known in the law of public
officers as expiration of the term. His term is understood at the outset as without any fixity and enduring at the pleasure of the
appointing authority. When required to relinquish his office, he cannot complain that he is being removed in violation of his
security of tenure because removal imports the separation of the incumbent before the expiration of his term.5 This is allowed by
the Constitution only when it is for cause as provided by law. The acting appointee is separated precisely because his term has
expired. Expiration of the term is not covered by the constitutional provision on security of tenure.

There is a long line of cases affirming the rule that:

. . . One who holds a temporary appointment has no fixed tenure of office; his employment can be terminated at the
pleasure of the appointing power, there being no need the show that the termination is for cause. 6

The petitioner contends that his appointment was really intended to be permanent because temporary appointments are not
supposed to exceed twelve months and he was allowed to serve in his position for more than three years. This is unacceptable.
Even if that intention were assumed, it would not by itself alone make his appointment permanent. Such an appointment did not
confer on the petitioner the appropriate civil service eligibility he did not possess at the time he was appointed, nor did it vest him
with the right to security of tenure that is available only to permanent appointees.

The case of Luego vs. Civil Service Commission7 is not applicable because the facts of that case are different. The petitioner in
Luego was qualified and was extended a  permanent appointment that could not be withdrawn on the ground that it was merely
temporary. In the case at bar, the petitioner was not eligible and therefore could be appointed at best only in a temporary
capacity. The other cases he cites, viz. Pamantasan ng Lungsod ng Maynila vs. Intermediate Appellate Court,8 Palma-
Fernandez vs. De la Paz,9 and Dario vs. Mison,10 are also not pertinent because they also involved permanent appointees who
could not be removed because of their security of tenure.

It should be obvious from all the above observations that the petitioner could have been validly replaced even if he had not filed
his courtesy resignation. We therefore do not have to rule on its legality. Suffice it to say that it could have been a graceful way
of withdrawing him from his office with all the formal amenities and no asperity or discord if only he had not chosen to contest it.
But it was his right to do so, of course, although his challenge has not succeeded.

WHEREFORE, the petition is DISMISSED, with costs against the petitioner. It is so ordered.
PoliRev Cases 1
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. Nos. 104216 August 20, 1993

TEODORO B. PANGILINAN, petitioner,
vs.
GUILLERMO T. MAGLAYA, THE EXECUTIVE SECRETARY, SECRETARY OF THE DEPARTMENT OF TRANSPORTATION
AND COMMUNICATIONS, respondents.

Gancayco Law Office and Moncupa, Torio & Malaya Law Offices for petitioner.

The Solicitor General for respondents.

CRUZ, J.:

The petitioner complains that he has been removed from office without due process and just cause in disregard of his
constitutional security of tenure. Worse, his removal was made in bad faith, immediately after his expose of certain anomalies in
which superiors were involved.

Teodoro B. Pangilinan joined the government service on July 18, 1966, when he was appointed agent in the National Bureau of
Investigation, a position for which he had the appropriate civil service eligibility. He had risen to Supervising Agent when he
resigned to accept appointment as Executive Director of the Land Transportation Office on July 8, 1987. He assumed office on
July 16, 1987.

The petitioner says that from February 19, 1988 to November 30, 1988, he was detailed to the Manila International Airport
Authority, where he served as Assistant General Manager in charge of finance and administration and also of security and
general services.

Upon his return to the LTO, he was designated as Resident Ombudsman in addition to his regular duties. As such, he
discovered, among other anomalies, irregularities in the purchase of motor vehicle license plates. The license plates ordered
were not reflective as required by P.D. 98 and B.P. 43. He says he brought this matter to the attention of Asst. Secretary Manuel
Sabalza of the Department of Transportation and Communications and later of Secretary Pete Prado. Neither of them took any
action.

On September 27, 1991, the petitioner called a press conference expose what the media later described as "the license plate
mess." He also announced his intention to file graft charges with the Ombudsman against Prado, Sabalza and Undersecretary
Jose Valdecañas, also of the DOTC.

The following day, Secretary Prado relieved Pangilinan as Executive Director of the LTO and replaced him with Guillermo
Maglaya as officer-in-charge. However, the petitioner continued receiving his salary (although his allowances were withheld)
until December 31, 1991. When he asked why his pay had been discontinued, he was informed by Asst. Secretary Juan V.
Borra, Jr. that Maglaya had already been designated as Acting Executive Director of the LTO.

In this petition, Pangilinan prays for reinstatement on the ground that no charge has been filed or proved against him to justify
his removal.

Required to comment, the Solicitor General argues that Pangilinan was validly separated because he was appointed to the
disputed position in an acting capacity only. He does not possess the qualifications prescribed for the office of Executive Director
of the LTO, which is a career executive service position for which only a career executive service official is eligible. The
petitioner is not a career executive service official. Hence, he could not be, and was not extended a permanent appointment.

The public respondents cite Sec. 5(1) of P.D. 807 which provides that membership in the career executive service requires:

(i) that the official must be included in the register of career executive eligibles; and

(ii) that the official must have been appointed to an appropriate class in the Career Executive Service.

Respondent Augusto B. Araneta, who was later designated to replace Maglaya, submitted the following certification from the
Executive Director of the Career Executive Service Board: 1

CERTIFICATION

This is to certify that the position of Executive Director in the Land Transportation Office, Department of
Transportation and Communications is classified as a position belonging to the Career Executive Service
(CES). This is to certify further that per records of the Career Executive Service Board (CESB), MR.
PoliRev Cases 1
TEODORO B. PANGILINAN, former Executive Director of said office is not a CES eligible, and was not
appointed to a rank in the CES.

This certification is issued upon the request of Atty. Augusto B. Araneta for whatever purpose it may serve.

(Sgd.) ELMOR D. JURIDICO

Executive Director

The respondents also invoke the case of Achacoso v.  Macaraig, 2 where this Court declared:

It is settled that a permanent appointment can be issued only "to a person who meets all the requirements for
the position to which he is being appointed, including the appropriate eligibility prescribed." Achacoso did not.
At best, therefore, his appointment could be regarded only as temporary. And being so, it could be withdrawn at
will by the appointing authority and "at a moment's notice," conformably to established jurisprudence.

xxx xxx xxx

The mere fact that a position belongs to the Career Service does not automatically confer security of tenure on
its occupant even if he does not possess the required qualifications. Such right will have to depend on the
nature of his 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, only 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.

The purpose of an acting or temporary appointment is to prevent a hiatus in the discharge of official, functions
by authorizing a person to discharge the same pending the selection of a permanent or another appointee. The
person named in an acting capacity accepts the position under the condition that he shall surrender the office
once he is called upon to do so by the appointing authority.

In his reply Pangilinan submits that the Achacoso case is not applicable because the petitioner therein was, to begin with, not a
civil service eligible. The petitioner say he is, having passed the board examination for certified public accountants. He also
argues that his appointment must be likened to the provisional appointment under the old Civil Service Act before it was
replaced by P.D. 807. The provisional appointment enjoyed security of tenure.

Pangilinan adds that even on the assumption that his appointment was not permanent, his separation must still be for a valid
cause because Article IX-B, Section 2 (3), of the Constitution applies to all officers and employees in the civil service without
distinction.

Invoking the case of Gray v.  De Vera,3 Pangilinan likens himself to the petitioner therein who was summarily relieved when, as
the board secretary of the People's Homesite and Housing Corporation, he sent a telegram to the President of the Philippines
imputing irregularities to the directors. His separation also came the following day. Although Gray was holding a primarily
confidential position without any fixed term, this Court ordered his reinstatement. We held that he had been denied procedural
due process and there was no valid cause for his removal.

Also cited by the petitioner are Cariño v.  ACCFA, 4 Floreza v. Ongpin  5 and Jocom v. Robredo (not Regalado),6 in all of which
cases the security of tenure of the dismissed employees was upheld.

The petitioner raises a new issue, to wit, that even if he were considered only an acting appointee, he nevertheless could not be
replaced except by a person possessing the required qualifications, as required by PD 807. He has produced certifications, 7 also
from the Executive Director of the Career Executive Service Board, that neither Guillermo T. Maglaya nor Augusto B. Araneta is
a CES eligible or a career executive service officer. He also argues, belatedly too, that as a presidential appointee, he could be
replaced only by the President of the Philippines and not by only the Secretary of Transportation and Communications.

As required by the Court, the respondents have submitted a Compliance manifesting that Juan A. Magarro, Jr., the new
appointee to the position of Executive Director of the LTO (replacing Guillermo Maglaya and Antonio B. Araneta) possesses the
prescribed qualifications for the office.8

They repeat that the applicable case is Achacoso, not Gray. Gray was extended a permanent appointment whereas Achacoso,
like Pangilinan, could be appointed only in an acting capacity for lack of the prescribed qualifications for the office.

We must hold for the respondents.

Gray and the other cases cited by the petitioner involved permanent appointees who therefore had security of tenure. Pangilinan
was only an acting appointee because he did not have the requisite qualifications; as such, he could not claim security of tenure.
This Court has repeatedly held that this guaranty is available only to permanent appointees. 9 The fact that Pangilinan was
qualified for his initial appointment as agent in the NBI does not mean he was qualified for all other positions he might later
occupy in the civil service. The law does not prescribe uniform qualifications for all public positions regardless of nature or
degree.

Although Gray was holding a highly confidential position, the Court regarded his separation as a removal and so applied the
constitutional prohibition against the suspension or dismissal of an officer or member of the civil service without cause as
provided by law. That was rather loose interpretation of the term "dismissal," which is defined as the ouster of the incumbent
before the expiration of his term. Subsequent decisions have made it clear that where a person holds his position at the pleasure
PoliRev Cases 1
of a superior or subject to some supervening event, his separation from office is not a
removal. 10 It is effected by the will of the superior or by the happening of the contingency, resulting in another and different
mode of terminating official relations known as expiration of the term.

Chief Justice Concepcion explained the distinction between removal and expiration of the term in Alajar v. Alba  11 thus:

In the case at bar, the term of respondent Alajar as Vice Mayor of the City of Roxas is not fixed by law.
However, the latter, in effect, vests in the President the power to fix such term. When in November 1955,
petitioner Alba was designated as Acting Vice-Mayor of said City, the term of respondent Alba was, thereby,
fixed implicitly by the President, in the exercise of his aforementioned authority. Thus, the term of office of
Alajar expired and his right to hold office was extinguished, with the same legal effect as if the term had been
fixed by Congress itself. In other words, Alajar was not removed from office, for "to remove an officer is to oust
him from office before the expiration  of his term" (Manalang v. Quitonano et al., 50 Off. Gaz., 2515). Alajar
merely lost the right to hold the office of Vice-Mayor of the City of Roxas by expiration of his term as such.

The petitioner's invocation of the provisional appointment as comparable to his position is a grasping at straws. The provisional
appointment has long been abolished and has no legal application or effect in this case. There are now only two kinds of
appointment under the Administrative Code of 1987, to wit:

Sec. 27. Employment Statues.  — 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 the 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.

Strictly speaking, the petitioner's temporary appointment as Executive Director of the LTO should have ended twelve months
after he assumed office, or on July 16, 1988. From that date, his appointment had ceased to be valid even if a qualified
replacement was not yet available and consequently had to be discontinued pursuant to the above-quoted provision. Indeed,
even on the assumption that his appointment could be and had been validly extended beyond the one-year limit, that extended
term was nevertheless validly terminated with the appointment of his qualified replacement.

The petitioner's contention that he could not be relieved by Secretary Prado but only by the President of the Philippines is also a
shot in the dark. It has long been settled, and does not require further elaboration here, that the acts of a Department Secretary,
when "performed and promulgated in the regular course of business" are presumptively the acts of the President unless
"disapproved or reprobated" by him. This doctrine dates back to 1939, when it was First laid down by Justice Laurel in Villena
v.  Secretary of the Interior, 12 and has been consistently observed since then. Parenthetically, the petitioner's own appointment
to the disputed position was signed not by President Corazon C. Aquino but by Executive Secretary Joker P. Arroyo. 13

In view of the foregoing considerations, we hold that Pangilinan has lost the right to the position of Executive Director of the LTO
and so cannot be reinstated therein.

Shall the Court end here? There is more to be said.

It is not difficult to see that the petitioner was replaced because of his expose and his threat to bring charges against his
superiors. His relief was clearly an act of punishment if not personal vengeance. This is not denied. The respondents, while
invoking the law to justify his separation, have made no effort whatsoever to justify their motives.

In Gray, the Court held that the board secretary, while holding a highly confidential. position, owed his loyalty not to the board
but to the government. In the present case, Pangilinan was not even holding a similar position. His continued incumbency did
not depend upon his enjoyment of the confidence of his superiors who had no personal claim to his loyalty. In exposing what he
considered the anomalies in the DOTC, he was, like Gray, manifesting his concern for the government whose interests he
wanted to protect.

It would be a sorry day, indeed, if a civil servant could be summarily removed from his position for the "sin" of complaining about
the irregularities of his superiors. This would not only impair the integrity of the civil service but also undermine the campaign to
encourage the public, including those in the civil service, to expose and denounce venality in government.

Pangilinan's denunciation of the non-reflective license plates we not the act of a rabble-rouser or a publicity-seeker. The record
shows that he quietly brought the matter to the attention of his superiors, giving reasons for his misgivings. They took no action.
Feeling frustrated, he sought the attention of the media and told them of his objection to the non-reflective license plates. He
cited the laws that he claimed had been violated. He narrated his efforts to prevent their violation. He spoke of the indifference of
his superiors. In doing all these, he was exercising his right as a citizen, and especially as a civil servant, to denounce official
misconduct and improve the public service.

This is not to say, of course, that Pangilinan's charges are valid. The Court is not prepared to do so at this time because the
evidence on this matter is not before it. For all we know, there is a satisfactory explanation for the attitude of his superiors; it is
PoliRev Cases 1
possible that it is Pangilinan who has misinterpreted the law or misread the facts. But true or not, the charges per se, and
standing alone, could not be the basis of Pangilinan's swift and summary replacement.

Pangilinan was separated the day immediately following his press conference. The Court sees the action as a retaliation. The
public respondents say they were merely terminating his incumbency in accordance with existing law. The Court sees that
termination as a punishment.

Under the expanded definition of judicial power in Article VIII, Section 1, of the Constitution, the Court can declare the acts of the
public respondents as tainted with grave abuse of discretion and therefore invalid.

But it is not as simple as that. The obstinate fact is that, regardless of the motives of his superiors, Pangilinan no longer had any
right to the disputed position when he was separated from it in 1991. He ceased to be entitled to it in 1988 upon the lapse of the
maximum period for his acting appointment. Obviously, he is not entitled to it now. Even if it be supposed that the public
respondents acted maliciously when they relieved him in 1991, his reinstatement is still not possible under the law as it now
stands.

The petitioner warns that the dismissal of his petition would open the door to the summary separation of civil servants to the
prejudice of the integrity and independence of the civil service. He claims that "there are about 2,067 CESO positions in the
entire Philippine civil service. Of this number only 372 or about 18% are occupied by Career Executive Service eligibles." 14 The
rest may be summarily separated as acting appointees and are therefore subject to the whims of their superiors. He suggests
that "a ruling by this Honorable Court that would sustain the position of petitioner would go a long way toward the upliftment of
the morale of the 'ineligibles.'"

Assuming that the petitioner's statistics are correct, the Court can only share his trepidation. We can do no more. As judges, we
can only interpret and apply the law and, despite our doubts about its wisdom, cannot repeal or amend it. In the case at bar, we
have no power to give the petitioner the qualifications he does not possess. Qualifications for public officers are prescribed by
the Constitution or the law, or even by implementing regulations, but not by the decisions of courts.

The problem posed by the petitioner is a serious threat to the integrity and independence of the civil service. As demonstrated in
this case, the doctrine announced in Achacoso may be used to muzzle and punish legitimate complaint and even to persecute
"difficult" subordinates. That doctrine, let it be stressed, is only an interpretation and application by the Court of the law as
enacted by the legislative and implemented by the executive. That doctrine can change only if the laws and regulations on which
it was based are also changed, not by this Court but by the political departments.

In Javier v.  Commission on Elections, 15 we said:

The Supreme Court is not only the highest arbiter of legal questions but also the conscience of the government.
The citizen comes to us in quest of law but we must also give him justice. The two are not always the same.

Indeed they are not, and sadly so for the petitioner. For ironically, the law he invokes for the protection of his right has instead
denied him the justice he seeks and deserves. This emphasizes, no less sadly, the fallacy that for every legal wrong there is a
judicial remedy. Untrue, unfortunately. The Court is not a panacea. There are times, regrettably, when justice is shackled by the
law, and even this Court cannot break the chains.

WHEREFORE, the petition is DISMISSED. No costs.

SO ORDERED.
PoliRev Cases 1
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 77918               July 27, 1987

FRANCISCO LECAROZ, petitioner,

vs.
HON. JAIME N. FERRER, in his capacity as Secretary of Local Government, and Meynardo Vertucio, respondents.

Anastacio E. Revilla for respondent Vertucio.

RESOLUTION

PADILLA, J.:

Petition for certiorari and prohibition with prayer for preliminary injunction and/or temporary restraining order, to restrain the
respondents from removing petitioner from his position as municipal mayor of Sta. Cruz, Marinduque.

The Court heard the parties, after which, it issued a temporary restraining order on 10 April 1987, restraining the respondents
from proceeding with the takeover of the position by the respondent Meynardo Vertucio. 1

In his petition filed before the Court on 7 April 1987, Francisco Lecaroz alleged that he was duly elected Municipal Mayor of Sta.
Cruz, Marinduque in the 1980 elections for local officials, the functions of which he had assumed and discharged until 26 March
1987, when the respondent Jaime N. Ferrer, in his capacity as Secretary of Local Government, removed him from his office and
designated the respondent Meynardo Vertucio, officer-in-charge of the Office of Mayor of Sta. Cruz, Marinduque. The petitioner
attributed his removal from office to his failure or refusal to campaign for the Administration's congressional candidate, which
petitioner claims to be oppressive, high handed, whimsical, capricious, despotic, and unreasonable. The petitioner further
claimed that he is not a mere officer-in-charge of an office, but a duly elected official allowed to continue in office after the
February 1986 revolution, so that he may not be summarily removed from office by the mere designation of a successor.

Commenting on the petition, the respondent, Meynardo v Vertucio, denied that the petitioner was removed from his position for
not supporting the congressional candidate of the Administration. He claimed that the petitioner was dismissed for cause, citing
administrative complaints filed against the petitioner with the Department of Local Government. He further claimed that the
petitioner's term of office had already expired and his continuance in office is in an acting capacity so that he can be removed at
any time, with or without cause; and that the petitioner is disqualified from holding office in view of his conviction by the
Sandiganbayan of the crime of Grave Coercion and his being sentenced to suffer the penalty of two (2) months and one (1) day
of arresto mayor which carries with it the accessory penalty of suspension of the right to hold office and the right of suffrage
during the term of sentence.2

The respondent Secretary of Local Government also alleged that the petitioner was the officer-in-charge of the office of mayor of
Sta. Cruz, Marinduque until 26 March 1987, when he was replaced by the respondent Meynardo Vertucio by reason of the
administrative charges filed against him for negligence, abuse of authority, misconduct in the performance of his functions,
misappropriation of the amount of P100,000.00 which was donated by an Arabian prince to the municipality, and conviction by
the Sandiganbayan of the crime of Grave Coercion. 3

We find merit in the petition.

Article III, Section 2 of the Provisional Constitution promulgated by President Corazon C. Aquino on 25 March 1986, provides:

All elective and appointive officials and employees under the 1973 Constitution shag continue in office until otherwise
provided by proclamation or executive order or upon the designation or appointment and qualification of their
successors, if such is made within a period of one year from February 25, 1986.

There is no doubt that the petitioner, Francisco M. Lecaroz, was duly elected Municipal Mayor of Sta. Cruz, Marinduque during
the 1980 elections for local officials and he is thus an elective official under the 1973 Constitution. As ruled by the Court in Dano
vs. Ferrer,4 he should continue in office pursuant to the provisions of the Provisional Constitution, abovequoted, but should
vacate the same upon the occurrence of the events mentioned in the said section. It appearing, however, that the period of one
(1) year from 25 February 1986, provided for in the law, had already elapsed, the petitioner cannot be considered removed from
office by the mere designation and qualification of a successor. The petitioner can only be removed from office for causes
mentioned in Section 60 of the Local Government Code (Batas Pambansa Blg. 337) and after proper proceedings. Said section
provides:

SEC. 60. Suspension and Removal; Grounds.  — An elective local official may be suspended or removed from office on
any of the following grounds committed while in office:

(1) Disloyalty to the Republic of the Philippines;

(2) Culpable violation of the Constitution;

PoliRev Cases 1
(3) Dishonesty, oppression, misconduct in office and neglect of duty;

(4) Commission of any offense involving moral turpitude;

(5) Abuse of authority;

(6) Unauthorized absence for three consecutive months.

It is of record in the instant case that when the petitioner was dismissed by the respondent Secretary of Local Government on 26
March 1987, there were several administrative complaints filed against him by the residents of Sta. Cruz, Marinduque before the
Department of Local Government and the Tanodbayan for negligence, abuse of authority, misconduct in the performance of his
functions, misappropriation of the amount of 100,000.00 donated by an Arabian prince to the municipality of Sta. Cruz,
Marinduque, as well as for conviction by the Sandiganbayan of the crime of Grave Coercion. But, as pointed out by the
petitioner. while these complaints have already been investigated by the Department of Local Government and the parties duly
heard, no decision has been rendered on said complaints by the Department of Local Government as required by Section 65 of
the Local Government Code, which provides:

SEC. 65. Form and Notice of Decision. — (1) Within thirty days after the end of the investigation, the Minister of Local
Government, or the provincial, city or municipal sanggunian as the case may be, shall render a decision in writing
stating clearly and distinctly the facts and the reasons for such decision, copies of which shall immediately be furnished
the respondent and all interested parties.

(2) The penalty of suspension shall not exceed the unexpired term of the respondent, nor shall the penalty of
suspension or removal be a bar to the candidacy of the respondent so suspended or removed from an elective public
office as long as he meets the qualifications so required for the office.

What the petitioner received from the respondent Secretary of Local Government when his services were summarily terminated
on 26 March 1987, was a letter advising him of the designation of the respondent Meynardo Vertucio as the officer-in-charge of
the office of Mayor of Sta. Cruz, Marinduque, and requesting him to turn over said office to the respondent Vertucio. Said letter
stated:

March 26, 1987

Date

MR. FRANCISCO LECAROZ

Sta. Cruz, Marinduque

S i r:

Please be advised that the undersigned has designated DR. MEYNARDO VERTUCIO as Officer-In-Charge of the Office of
the MAYOR, STA. CRUZ, MARINDUQUE effective upon assumption.

You are requested to turn-over the said office to Dr. Meynardo Vertucio immediately.

Thank you.

Very truly yours,

(Sgd.) JAIME N. FERRER

Secretary.5

The afore-quoted letter cannot be the decision contemplated in Section 65 of the Local Government Code, since it does not
"state clearly and distinctly the facts and the reasons for such decision." And even if it were, the dismissal of the petitioner can
be effected only after thirty (30) days if no appeal is made from receipt thereof. 6

The petitioner's conviction by the Sandiganbayan of the crime of Grave Coercion cannot also justify the summary removal of the
petitioner from his position. Such a ground for removal should be clearly stated in an appropriate decision of the respondent
Secretary of Local Government as required under Section 65 in relation to Section 60 of the Local Government Code. Nothing
less can be permitted under a rule of law.

We have to state, however, in fairness to respondent Secretary Ferrer, that we cannot attribute the petitioner's dismissal to his
failure or refusal to support the Administration's congressional candidate, in the absence of substantial evidence to support the
claim. As pointed out by the Solicitor General, if politics was the reason for petitioner's replacement, then his brother, Aristeo the
officer-in-charge of the Office of Governor of Marinduque and the husband of Aurora who was running against the
Administration's candidate, should have also been replaced, but he was not.

ACCORDINGLY, the petition is granted and the Memorandum issued by the respondent Secretary of Local Government on 26
March 1987, designating the respondent Meynardo Vertucio, the officer-in-charge of the Office of Mayor of Sta. Cruz,
Marinduque, vice Francisco Lecaroz, and the letter of said Secretary of Local Government, dated 26 March 1987, to the
petitioner, requesting the latter to turn over the Office of Mayor of Sta. Cruz, Marinduque to the respondent Meynardo Vertucio
PoliRev Cases 1
are both declared to be of no legal force and effect. The temporary restraining order, herefore issued, is made permanent.
Without costs.

SO ORDERED.
PoliRev Cases 1
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-11602             April 21, 1958

ALFREDO CUADRA, petitioner-appellant,
vs.
TEOFISTO M. CORDOVA, in his capacity as Mayor of Bacolod City, respondent-appellee.

Palanca and Torres for appellant.

City Attorney Jesus S. Rodriguez for appellee.

BAUTISTA ANGELO, J.:

This is a petition for mandamus filed before the Court of First Instance of Negros Occidental seeking petitioner's reinstatement
as a policeman of the City of Bacolod and the payment of his back salaries from the date of his dismissal to the date of his
reinstatement. Respondent in his answer set up the defense that petitioner has been removed from the service in accordance
with law.

The case was submitted on an agreed stipulation of facts. There after the trial court rendered decision holding that the
appointment of petitioner was not in accordance with law and so his dismissal was proper. It consequently dismissed the
petition. From this decision, petitioner appealed.

The important facts to be considered in this appeal are: Petitioner was not a civil service eligible. He was temporarily appointed
as member of the police force of Bacolod City on November 11, 1955. The position to which he was appointed was a newly
created one, the salary for which was, included in the budget for the fiscal year 1955-1956. This budget was approved by the
City Council on November 14, 1955, and by the Secretary of Finance on January 18, 1956. Petitioner was paid his salary for the
service he had rendered from the date of his appointment to the date of his removal. Petitioner is a high school graduate and
had been employed before the war in the City Engineer's Office of Bacolod City for about two years and was later transferred to
the Patrol Division of Bacolod Police Department until the coming of the Japanese in May, 1942. He was also employed as
confidential agent of former Mayor Amante and served in that capacity from 1953 to 1954. He was never accused of any crime
nor were charges filed against him before his dismissal.

In justifying the dismissal of petitioner from the service, the trial court gave as its only reason the fact that he was already 47
years, 3 months and 13 days old when he was appointed to the position of member of the police force of Bacolod City and as
such he was disqualified for such appointment in the light of Section 17 of Executive Order No. 175, series of 1930, which
provides in part that "To be eligible for examination for initial appointment, a candidate must be a citizen of the Philippines,
between the ages of twenty-one and thirty, of good moral habits and conduct, without any criminal record, and must not have
been expelled or dishonorably discharged from the civil or military employment." It is claimed by appellant that such ruling is
erroneous because such provision of the Executive Order only applies to one who desires to take a civil service examination and
not to the appointment of one who, like appellant, had already held several positions in the government.

There is no merit in this claim. Section 17 above referred to specifically provides that "To be eligible for examination for initial
appointment, a candidate must be a citizen of the Philippines, between the ages of twenty-one and thirty", which terms are clear
enough to raise any doubt as to their import. They refer to an examination for initial appointment, and nothing else, as to which
the age of the examinee must be between 21 and 30. This interpretation appears more justified when we consider Section 16 of
the same Executive Order which provides that "The Commission of Civil Service shall announce from time to time the date and
place of examination to qualify for the police service, which shall be held in accordance with the provisions of the Civil Service
law and Rules."

But there is one argument which justifies the separation from the service of petitioner and that refers to the fact that when he
was appointed he was not a civil service eligible and his appointment was merely temporary in nature. His appointment being
temporary does not give him any definite tenure of office but makes it dependent upon the pleasure of the appointing power. A
temporary appointment is similar to one made in an acting capacity, the essence of which lies in its temporary character and its
terminability at pleasure by the appointing power. And one who bears such an appointment cannot complain if it is terminated at
a moment's notice.

Thus, in Villanosa, et al. vs. Alera, et al., G.R. No. L-10586, May 29, 1957, we held:

. . . Since it is an admitted fact that the nature of the appointments extended to petitioners was merely temporary, the
same cannot acquire the character of permanent simply because the items occupied refer to permanent position. What
characterizes an appointment is not the nature of the item filled but the nature of the appointment extended. If such
were not the case, then there would never be temporary appointments for permanent positions. This is absurd. The
appointments being temporary, the same leave the character of "acting appointments" the essence of which is that they
are temporary in nature. Thus, in Austria vs. Amante, 79 Phil., 780, this Court stated:

Lastly, the appointment of petitioner by the President of the Philippines was merely as Acting Mayor. It is elementary in
the law of public officers and in administrative practice that such an appointment is merely temporary, good until another
permanent appointment is issued, either in favor of the incumbent acting mayor or in favor of another. In the last
contingency, as in the case where the permanent appointment fell to the lot of respondent, Jose L. Amante the acting
mayor must surrender the office to the lucky appointee.
PoliRev Cases 1
Reiterating this doctrine this Court in Castro vs. Solidum, G.R. No. L-7750, June 30, 1955, declared:

There is no dispute that petitioner has been merely designated by the President as Acting Provincial Governor of
Romblon on September 11, 1953. Such being the case, his appointment is merely temporary or good until another one
is appointed in his place. This happened when the President appointed respondent Solidum on January 6, 1954 to take
his place.

It is, therefore, clear that the appointments of petitioners, being temporary in nature, can be terminated at pleasure by
the appointing power, there being no need to show that the termination is for cause (Mendez vs. Ganzon, 101 Phil., 48).

The decision appealed from is affirmed, without pronouncement as to costs.

PoliRev Cases 1
FIRST DIVISION

[G.R. No. L-959. January 9, 1948.]

BENEDICTO AUSTRIA, Petitioner, v. JOSE L. AMANTE, Respondent.

Juan S. Rustia for Petitioner.

Assistant Solicitor General Roberto A. Gianzon for Respondent.

SYLLABUS

1. QUO WARRANTO; PLAINTIFF MUST PROVE RIGHT TO OFFICE. — in quo warranto proceedings the plaintiff will succeed
only when he proves his right to the office in dispute.

2. PUBLIC OFFICERS; ELECTIVE MUNICIPAL OFFICIALS; HOLD-OVER NOT INTENDED BY LEGISLATURE. — The
Legislature did not intend that elective municipal officials shall hold over after the expiration of their terms.

3. ID.; MUNICIPAL MAYOR; TEMPORARY VACANCY; APPOINTMENT BY PROVINCIAL GOVERNOR, WHEN LEGAL. — An
appointment by the Provincial Governor of acting municipal mayor, in order to be legal, must have the consent of the provincial
board.

4. ID.; ID.; ID.; ACTING MAYOR, NATURE OF APPOINTMENT OF. — An appointment as acting mayor is merely temporary,
good until another permanent appointment is issued.

5. ID.; ID.; ID.; NOTICE AND HEARING NOT NECESSARY IN CHANGING ACTING APPOINTEE. — In changing an acting
appointee, there is no need of a notice to him or any form of hearing.

DECISION

BENGZON, J.:

Benedicto Austria instituted this quo warranto proceeding to wrest from respondent Jose L. Amante the position of mayor of the
municipality of San Pedro, Province of Laguna. He alleged he was peacefully discharging the duties of that office when on the
third day of September, 1946, respondent Jose L. Amante unlawfully and forcibly took possession thereof with the assistance of
some members of the military police.

Undisputed facts are these:chanrob1es virtual 1aw library

1. In the general elections of December 10, 1940, petitioner Benedicto Austria was elected municipal mayor of San Pedro,
Laguna, and in the next month he qualified as such.

2. On November 25, 1941, he was suspended from office by reason of an administrative complaint filed against him.

3. Due to the outbreak of the Pacific War he could not resume his office after the 30-day period provided by law.

4. Upon the arrival of the United States Army of Liberation, the PCAU appointed Antonio Partoza, acting mayor of said
municipality.

5. On October 15, 1946, Partoza resigned. Whereupon Acting Governor Jesus Bautista of Laguna designated petitioner as
acting municipal mayor, even as he informed the Secretary of the Interior of the "recall" of herein petitioner, recommending that
"proper appointment be extended to him effective October 16, 1945." On this recommendation no action was ever taken by the
Department, because the Rural Progress Administration and several residents of the municipality opposed it and because it was
known that at the beginning of the War he was under suspension for reportedly subversive activities.

6. On February 6, 1946, Benedicto Austria was appointed acting mayor by the President of the Philippines. (Exhibit 2.)

7. On August 2, 1946, respondent Jose L. Amante was appointed mayor of the municipality, by the President of the Philippines.
(Exhibit 1.)

8. On September 4, 1946, respondent Jose L. Amante assumed office as mayor.

There is some controversy as to the circumstances under which Amante took the post.

According to petitioner’s evidence, in the morning of September 3, 1936, Amante showed to him his (Amante’s) appointment but
he declined to quit because he had received no orders from his superior, meaning the Provincial Governor; that Amante went
away; that thereafter, the same morning, one Lieutenant Galvez of the Military Police took him from San Pedro to Sta. Cruz, the
capital, where he was "detained" for three days; that upon his return Amante was already exercising the powers of the town
mayor.

The respondent explained that on September 1, he had a talk with petitioner, showing the latter his appointment Exhibit 1; that
petitioner said he could not vacate without orders from the Governor; that he conferred with Lieutenant Galvez in Calamba who,
having in turn talked with the Governor by telephone, advised Amante to go to Sta. Cruz and see the Governor; that he went to
Sta. Cruz and received from the Governor a letter addressed to herein petitioner, informing him of Amante’s appointment and
PoliRev Cases 1
directing delivery of the office to him; that apparently petitioner avoided service or receipt of the Governor’s letter; that
consequently Amante journeyed on September 3 to complain to Lieutenant Galvez again; that the latter detailed one of his
sergeants to deliver the Governor’s letter to Austria, which was done that same afternoon; that the next day (September 4) at 8
a. m., Amante proceeded to the municipal building where he found petitioner willing and disposed to vacate; that he assumed
office at about 8:30 with the knowledge and consent of said petitioner, who retired to his home thereafter. There is evidence that
shortly before twelve Lieutenant Galvez arrived, and, pursuant to orders from Sta. Cruz headquarters took Austria with him to
Sta. Cruz. The testimony on these points specially the peaceful transfer of functions is corroborated by the municipal treasurer,
apparently a disinterested witness. Anyway, it appears that having complained to the provincial fiscal of the alleged undue
intervention of the police officers, Austria inexplicably failed to substantiate them, when required to do so. And this Court is
hardly the forum to try such disputed questions of fact.

It is important to observe in this connection that petitioners’ theory was that he was "arrested" on September 3, so that
respondent assumed office on September 4, after he was arrested. But according to Exhibit F-4, signed by petitioner himself, he
was taken by Lieutenant Galvez only on September 4 under protective custody, by reason of his connection with certain
communistic organizations about to disrupt peace and order in the locality.

There are reasons to believe that the coincidence of petitioner’s removal to Sta. Cruz as a precautionary measure is being
colored to meet any contention founded on his having yielded the mayoralty of his own volition. But voluntary surrender of the
office should be immaterial, specially where action to test the right of the new occupant is instituted without delay.

The pivotal issue is whether petitioner is lawfully entitled to continue discharging the duties and powers of the town executive.
Well-known is the principal, in litigations of this nature, that the plaintiff will succeed only when he proves his right to the office. 1

Undoubtedly, the petitioner can lay no claim to the post in virtue of the 1940 elections. The term of the office to which he was
elected, had, under the law, expired in 1943; and we found in Topacio Nueno v. Angeles (76 Phil., 12), that the Legislature did
not intend that elective municipal officials shall hold over after the expiration of their terms.

Neither can he assert title under the "designation" given to him by Acting Governor Jesus Bautista, because obviously the said
official did not pretend to make an appointment, inasmuch as he recommended to the Secretary of the Interior that an
appointment in favor of herein petitioner be issued, which appointment has never been issued. Anyway, granted the designation
was a real appointment independently of any subsequent action by the Department of the Interior, it was not legal, because the
provincial board did not consent to it, the approval of said body being necessary under section 16 (a) of Commonwealth Act No.
357, the provision of law which in Nueno v. Angeles we held to be applicable to identical situations.

Lastly, the appointment of petitioner by the President of the Philippines was merely as Acting Mayor. It is elementary in the law
of public officers and in administrative practice that such appointment is merely temporary, good until another permanent
appointment is issued, either in favor of the incumbent acting mayor or in favor of another. In the last contingency, as in this
case, where the permanent appointment fell to the lot of respondent Jose L. Amante the acting mayor must surrender the office
of the lucky appointee.

There is no need of a notice to the "acting" appointee or any form of hearing. Such procedural requirements apply where the
officer is removable only for cause. This is not the case. In changing an acting appointee, the appointing power has full
discretion, and is not limited to removals "for cause."cralaw virtua1aw library

It becomes unnecessary at this time to decide whether the appointment made by the President may be upheld in view of his
emergency powers, because both parties do not raise the question, even assume its existence. Neither can petitioner assail the
respondent’s appointment by a Presidential agent, because his appointment (petitioner’s) by the Secretary to the President
Exhibit 2, being in the same category, would also be invalid, and then he has to fall back on his "designation" by the acting
governor of the province, which as hereinbefore indicated fails to support his claim. (Cf. Topacio Nueno v. Angeles, supra.)

Net result of the foregoing discussion is that claimant has no solid ground upon which he may be ordered reinstated. Wherefore,
his petition is denied.

Moran, C.J., Paras, Feria, Hilado and Padilla, JJ., concur.

PoliRev Cases 1
Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-52091 March 29, 1982

TERESO V. MATURAN, petitioner-appellant,
vs.
Mayor SANTIAGO MAGLANA of San Francisco, Southern Leyte, Vice-Mayor HONORIO MAGONCIA, Municipal
Councilors BONIFACIO AMARGA, JR., ALFONSO ASPIRIN, SR., SIMEON DUTERTE, SAMSON GAMUTAN,
CONSTANCIO ESTAFIA, FELICISIMO BACUS, VICTOR JATAYNA, SR., JUANCHO MORI, Chief of Police FRANCISCO
DUTERTE, Municipal Treasurer RAMON TOLIBAS and the MUNICIPALITY OF SAN FRANCISCO, SOUTHERN
LEYTE, respondents-appellees.

DE CASTRO, J.:

This case was certified to this Court by the Court of Appeals pursuant to its resolution dated October 30, 1979, the issue raised
herein being purely legal, which is the interpretation of Presidential Decree No. 12-A and Letter of Instruction No. 14 in relation
to the present case.

Petitioner was appointed as patrolman of San Francisco, Southern Leyte on February 1, 1965 with a compensation of P540.00
per annum. On October 1, 1967 he was promoted to the rank of police sergeant at P720.00 per annum. On October 8, 1968 and
July 1, 1969 petitioner's salary was adjusted to P1,320.00 and P1,800.00 per annum, respectively. All the aforesaid
appointments of petitioner were provisional. On July 1, 1970 his provisional appointment was renewed. Likewise on July 1, 1971
his provisional appointment was renewed with an increase in pay in the amount of P2,640.00 per annum.

On September 15, 1972, respondent Mayor Santiago Maglana suspended the petitioner from office because of two pending
criminal cases against him, namely Criminal Case No. 236, for falsification of public document by making untruthful statement in
the narration of facts, and Criminal Case No. 312, for falsification of public document. On October 2, 1972 respondent Vice-
Mayor Honorio Magoncia, who was then the Acting Mayor instructed petitioner together with Chief of Police Francisco Duterte
and Patrolman Asisclo Irong, to tender their resignations pursuant to the Letter of Instruction No. 14 of the President of the
Philippines. Petitioner submitted his letter of resignation on October 9, 1972. Petitioner's resignation was approved on January
19, 1973 and petitioner was accordingly informed thereof.

In a letter dated February 19, 1973 petitioner sought the reconsideration of the approval of his resignation for being null and void
on the ground that Letter of Instruction No. 14 does not apply to him.

In the meantime, Criminal Case Nos. 236 and 312 were dismissed on January 31, 1973 and November 5, 1973, respectively.

In a letter dated January 12, 1974, Hon. Juan Ponce Enrile then Acting Chairman of the National Police Commission informed
petitioner that due to the dismissal of the aforesaid criminal cases, the latter's preventive suspension has been lifted and
petitioner was directed to report for duty to his Chief of Police. Petitioner reported for duty on February 1, 1974 but Chief of
Police Francisco Duterte refused to accept the former in the police force.

Respondent Mayor sent a letter dated February 5, 1974 to the Chairman of the National Police Commission requesting advice
as to whether the resignation tendered by petitioner pursuant to letter of Instruction No. 14 is valid. In a reply letter dated August
13, 1974 the Deputy Executive Commissioner stated that since petitioner resigned from office on October 2, 1972, the lifting of
his suspension as directed in the National Police Commission's letter dated January 12, 1974 is no longer feasible, the same
having been rendered moot and academic; that said office had occasion to rule that resignations submitted by members of the
police force in compliance with the provisions of Letter of Instruction No. 14 are valid, said Instruction being broad in scope to
include both local and national officials.

Petitioner sought the intervention of the Governor of Southern Leyte to no avail, hence, on May 21, 1974 petitioner filed a
petition for mandamus with claim for back salaries, traveling expense and damages before the Court of First Instance of
Southern Leyte, Branch III.

It was alleged by petitioner that the refusal of respondents Mayor and Chief of Police to reinstate him is a violation of paragraph
7 of Presidential Decree No. 12-A which provides:

7. Members of the police force who have been preventively suspended shall, upon exoneration be entitled to
immediate reinstatement and payment of the entire salary they failed to receive during the period of
suspension;

that the case of petitioner falls squarely within the purview of Presidential Decree No. 12-A which was promulgated on October
4, 1972 and which governs policemen with pending cases; and that Letter of Instruction No. 14 under whose provisions
petitioner was made to resign is not applicable to policemen.

In respondents' answer dated July 3, 1974, they set up the defense that petitioner has falsely entered in his duly sworn
information sheet that he is a high school graduate of the University of Manila during the school year 1954-55, but in his
Personal Data Sheet, CS Form No. 212, dated October 8, 1968 he feloniously alleged and/or entered therein that he is a
graduate of the Pana-on Academy in the school year 1950-51 when in truth he was only a second year high school student; that
PoliRev Cases 1
petitioner, who has voluntarily resigned, needs a new appointment and has to meet the qualifications required by law among
which, are, that he must be at least a high school graduate and not over 33 years of age; that petitioner falls short of these
requirements; and that petitioner is notoriously undesirable, publicly known to be of bad moral character and oftentimes got
drunk while on duty.

On February 4, 1975 respondent court issued a decision dismissing the petition for lack of merit. The court a quo agreed with
the opinion of the National Police Commission that resignations submitted by members of the police force in compliance with the
provisions of Letter of Instruction No. 14 are valid. Since petitioner has been separated from the service, reinstatement is not the
proper remedy. The court also said that the evidence of conflicting entries on petitioner's two information sheets have not been
denied or rebutted, hence the preponderance of evidence is against the petitioner that he is not a high school graduate, as he
could not have graduated in two high schools, one in the University of Manila during the school year 1954-55 and the other at
the Pana-on Academy during the school year 1950-51. Lastly, the trial court ruled that since all petitioner's appointment were
provisional, he can be removed at any time by the appointing power, Mayor Maglana.

On appeal to the Court of Appeals, petitioner filed his brief on June 28, 1976. For failure of respondents to submit their brief, the
case was submitted for decision on November 16, 1976.

Petitioner made the following assignment of errors:

FIRST ERROR

THE LOWER COURT ERRED IN HOLDING THAT THE RESIGNATION OF PETITIONER FROM THE
POSITION OF POLICE SERGEANT OF THE SAN FRANCISCO POLICE FORCE AND THE ACCEPTANCE
OF SUCH RESIGNATION BY RESPONDENT MAYOR MAGLANA DURING THE PENDENCY OF A
CRIMINAL CASE FILED AGAINST PETITIONER AND WHILE PETITIONER WAS UNDER PREVENTIVE
SUSPENSION ARE LEGAL AND VALID;

SECOND ERROR

THE TRIAL COURT ERRED IN HOLDING THAT PETITIONER CAN BE REMOVED FROM THE OFFICE AT
ANY TIME BY RESPONDENT MAYOR MAGLANA;

THIRD ERROR

THE LOWER COURT ERRED IN RULING THAT RESPONDENT MAYOR COULD NOT BE COMPELLED TO
REINSTATE AND/OR REAPPOINT PETITIONER WHO POSSESSED CIVIL SERVICE ELIGIBILITY AS
PATROLMAN AND WITH POLICE TRAINING AT THE POLCOM ACADEMY; and

FOURTH ERROR

THE COURT BELOW ERRED IN DISMISSING THIS CASE AND DISALLOWING PETITIONER TO COLLECT
HIS BACK SALARIES AND TRAVELING EXPENSES.

Petitioner contends that under Presidential Decree No. 12-A promulgated on October 4, 1972 the power to dismiss or remove a
member of the police force has been transferred from the Mayor to the Police Commission. Hence, the acceptance of
petitioner's resignation by respondent Mayor on January 19, 1973 is null and void because the latter is no longer clothed with
authority to dismiss or remove a member of the police force on said date. Furthermore, petitioner stresses that Letter of
Instruction No. 14 under whose provisions he was made to resign is not applicable to him as said Instruction covers only officials
and employees with pending cases excluding policemen. Lastly, petitioner banks on his testimonial eligibility which he obtained
on October 10, 1974 to justify his reappointment.

Presidential Decree No. 12 dated October 3, 1972 created the Adjudication and Investigation Boards in the Police Commission
to review and dispose of all administrative cases of city and municipal forces referred to the Commission. On October 4, 1972
Presidential Decree 12-A was promulgated providing for the procedure to be followed in case an administrative charge is filed
against any member of the local police agency or when a member of the police force is accused in court of any felony or
violation of law. Nowhere in the provisions of said Presidential Decrees show that the power to dismiss or remove has been
transferred from the Mayor to the Police Commission as contended by petitioner. It was only on August 8, 1974 when such
power was removed from the Mayor pursuant to 'Presidential Decree No. 531 integrating the municipal police forces in an the
municipalities of the province of Southern Leyte. Presidential Decree No. 531 states:

SEC. 6. Power of administrative control and supervision. — Administrative control and supervision over the
several police and fire departments and jails composing each of the Integrated Police Forces herein constituted
shall, prior to the transfer provided for in Section 7 hereof, remain with the offices, agencies and officials in
which said power is vested in accordance with existing laws; ... Accordingly, administrative matters, such as
appointment promotion suspension separation and other disciplinary action ... and such other matters
pertaining to personnel administration which are currently vested in and exercised by other officials pursuant to
existing laws, rules and regulations shall remain with said officials, ...

SEC. 7. Administrative control and supervision to be transferred to the Philippine Constabulary. — After one
year, but not later than two years, from the effectivity of this Decree, the power and administrative control and
supervision provided for in Section 6 hereof shall be taken over and exercised by the Philippine
Constabulary. ...
PoliRev Cases 1
It is clear therefore that at the time petitioner's resignation was approved by respondent Mayor on January 19, 1973 the latter
still had the power to dismiss or remove the former.

Petitioner did not dispute that at the time he was appointed member of the Police Force of San Francisco, Southern Leyte, he
had neither qualified in an appropriate examination for the position of policeman nor was he possessed with any civil service
eligibility for any position in the government. Such lack of a civil service eligibility makes his appointment temporary 1 and without
a definite term and is dependent entirely upon the pleasure of the appointing power. 2 Although indicated as provisional and
approved under Section 24 (c) 3 of Republic Act 2260 the petitioner's appointment did rot acquire the character of provisional
appointment because of his lack of appropriate civil service eligibility for the position of municipal policeman. The Civil Service
Commission cannot even legally approve his appointment as provisional as this act would constitute an unwarranted invasion of
the discretion of the appointing power. 4 If the approval of his appointment as provisional under Section 24 (c) of Republic Act
2260 did not make it so, the fact remains that his appointment was temporary which could be terminated without any need to
show that the termination was for cause. 5

The fact that petitioner subsequently obtained a testimonial eligibility on October 10, 1974 is of no moment. At the time he
received his appointment, as aforestated, petitioner had no eligibility. As such what is required is a new appointment, not merely
reinstatement. But even then, he cannot compel the Mayor to reappoint him for the power to appoint is in essence discretionary
and the appointing power enjoys sufficient discretion to select and appoint employees on the basis of their fitness to perform the
duties and assume the responsibilities of the position filled. 6

WHEREFORE, the decision dated February 4, 1975 of the lower court is hereby affirmed. No costs.

SO ORDERED.
PoliRev Cases 1
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 116183 October 6, 1995

SEC. RICARDO T. GLORIA, in his capacity as Secretary of Education, Culture & Sports and Chairman of the Board of
Trustees of the Philippine State College of Aeronautics (PSCA); JULIAN J. LOLENG, JR., in his capacity as Officer-in-
Charge of PSCA; and BOARD OF TRUSTEES of PSCA, petitioners,
vs.
HON. SALVADOR P. DE GUZMAN, JR., Presiding Judge of Branch 113, Regional Trial Court of Pasay, Metro Manila;
VIRGILIO R. RAMOS, LEONY P. SENDIN, ROSARIO V. CERILLO, ANDREA A. PESTANO, ARTHUR V. RODRIGUEZA,
LENI V. DIMAYUGA, JAIME ABON, RIZALDO O. VALLE, JOIE ARCEO, SHIRLEY PESTANO, SERVANDO SACUEZA,
JAIME C. PONEGAL, EDGARDO MERCADO, CRISTINA BULADO, BENIGNO T. AQUINO, RODEL PESTANO, JUN JAY
PARMA, NILO B. ELLO, and NELSON SACUEZA, respondents.

HERMOSISIMA, JR., J.:

Intransigence of private respondents in maintaining a patently indefensible position sparked this long drawn out controversy.
Knowing fully well that, as temporary employees whose terms of office, whether by contract or by the tenor of their
appointments, had expired one year after their respective temporary appointments, that is, on December 31, 1992, they insist on
a perceived, albeit mistaken, right to reinstatement.

Before this Court is a Petition for Certiorari, filed by Hon. Ricardo T. Gloria, in his capacity as Secretary of Education, Culture
and Sports (DECS) and as Chairman of the Board of Trustees of the Philippine State College of Aeronautics (PSCA); Col. Julian
J. Loleng, Jr., in his capacity as Officer-in-Charge of the PSCA; and the Board of Trustees of the PSCA 1, under Rule 65 of the
Revised Rules of Court, with the end in view of nullifying the Decision 2 and Order3 of respondent Judge Salvador P. de Guzman,
Jr., Presiding Judge of Branch 113, Regional Trial Court of Pasay City, dated January 31, 1994 and June 29, 1994, respectively.

Questioned in effect by the petitioners is only the portion of the judgment ordering the reinstatement of private respondent
Rosario V. Cerillo to the position of "Coordinator for Extension Services".

Actually, the act of effecting the termination of the appointment of Rosario V. Cerillo was perpetrated by Col. Julian J. Loleng, Jr.
while it was the Hon. Isidro Cariño who was the DECS Secretary. The case for reinstatement which was filed before respondent
Judge Salvador P. de Guzman, Jr. of the Pasay City Regional Trial Court was instituted during the incumbency of the
succeeding DECS Secretary, the Hon. Armand Fabella. The judgment of the lower court, as a matter of fact, involved the Hon.
Armand Fabella as defendant. In view of the resignation of Secretary Fabella, the duty and obligation to question the decision
aforesaid of Judge Salvador P. de Guzman, Jr. devolved on the incumbent Secretary, the Hon. Ricardo T. Gloria.

Consequently, the dramatis personae in this case include: DECS Secretary Ricardo T. Gloria; PSCA Board of Trustees
Chairman Col. Julian J. Loleng, Jr.; and the PSCA Board of Trustees created under Republic Act
No. 7605, as petitioners; and RTC Executive Judge Salvador P. de Guzman, Jr., as public respondent, and the named private
respondents who were the petitioners in the court below.

The facts of the case are not in dispute. The question at issue is one of law: Is private respondent Rosario V. Cerillo entitled to
reinstatement to the position of "Coordinator for Extension Services"?

Private respondents were employees of the Philippine Air Force College of Aeronautics (PAFCA) which was created by virtue of
Presidential Decree No. 1078 on January 26, 1977. Under the said decree, the Board of Trustees is vested with authority,
among others, to appoint, as it did appoint, officials and employees of the college, except the members of the Board of Trustees
themselves and the President of the college. In line with this authority, the PAFCA Board of Trustees issued Resolution No. 91-
026 on April 1, 1991, which declared that "All faculty/administrative employees are also subject to the required civil service
eligibilities", in accordance with pertinent civil service law, rules and regulations. Thus, herein private respondents were issued
only temporary appointments because at the time of their appointment, they lacked appropriate civil service eligibilities or
otherwise failed to meet the necessary qualification standards for their respective positions.

Private respondent Rosario V. Cerillo, specifically, was issued a one-year temporary appointment to the position of Board
Secretary II of PAFCA (now PSCA), that is, from January 1, 1992 to December 31, 1992. This appointment went along the line
enunciated by the Civil Service Commission in a letter, dated March 25, 1992. 4 The letter emphasized that temporary
appointments were good and renewable only up to 1992.

On March 24, 1992, private respondent Rosario V. Cerillo was

relieved as Board Secretary of the PAFCA in accordance with Board Resolution No. 92-017 by reason of loss of confidence.
Subsequently, however, she was designated as "Coordinator for Extension Services".

On June 3, 1992, Republic Act No. 7605 was enacted into law. It converted PAFCA into a state college to be known as the
Philippine State College of Aeronautics (PSCA). The Board of Trustees likewise was the governing body of the PSCA. The
PoliRev Cases 1
power to make appointments was retained by the Board. Petitioner Col. Julian J. Loleng, Jr. remained as Officer-in-Charge by
virtue of a designation made anew by then DECS Secretary Isidro Cariño on June 8, 1992.

Only on December 7, 1992 did Col. Loleng inform private respondents that they shall be deemed separated from the service
upon the expiration of their temporary appointments. Had private respondent Rosario V. Cerillo not been summarily dismissed
as Board Secretary on March 24, 1992, her temporary appointment as such was supposed to have lasted until December 31,
1992.

On June 25, 1993, barely five months after the lapse of the terms of their temporary appointments as determined by the PSCA
administration, the herein private respondents filed before the Regional Trial Court of Pasay City, presided over by respondent
Judge Salvador P. de Guzman, Jr., a "Petition for Mandamus and Reinstatement, with Back Wages and Damages", docketed as
Civil Case No. 10049. The complaint in effect prayed that then DECS Secretary Armand Fabella complete the filling up of
positions for Board of Trustees and order the Board of Trustees to reinstate the respondents in the case at bench to their
respective positions.

In their Answer,5 the herein petitioners opposed the petition upon the ground that mandamus will not lie to compel reinstatement
because the reappointment prayed for is discretionary on the part of the appointing power. Besides, it was the claim of Secretary
Fabella that a writ of mandamus  should be unavailing to private respondents because of their failure to exhaust administrative
remedies.

We find the petition to be impressed with merit.

The judgment of respondent Judge Salvador P. de Guzman, Jr. which orders the reinstatement of Ms. Rosario V. Cerillo to the
position of "Coordinator for Extension Services" is patently improper because it finds no support as to facts and the law.
Respondent Cerillo, although temporarily extended an appointment as Board Secretary II, was dismissed therefrom because of
loss of confidence. This dismissal was neither contested nor appealed from by Ms. Cerillo. There is no question, therefore, that
her dismissal as Board Secretary II could not have been the subject of the petition for mandamus  and reinstatement filed before
respondent Judge. The fact is that private respondent's assignment as "Coordinator for Extension Services" was a mere
designation. Not being a permanent appointment, the designation to the position cannot be the subject of a case for
reinstatement.

Furthermore, even granting that Ms. Cerillo could be validly reinstated as "Coordinator for Extension Services", her
reinstatement thereto would not be possible because the position is not provided for in the PSCA plantilla. The PSCA could not
have made any valid appointment for this inexistent position. This could very well be the reason why she was merely designated
as Coordinator. As a mere designee, she could not have acquired any right to the position even if the position existed.

At any rate, a mere "designation" does not confer upon the designee security of tenure in the position or office which he
occupies in an acting capacity only 6.

II

Should the object of private respondent Cerillo in prosecuting the case in the court below be her reinstatement to the position of
Board Secretary II, the reinstatement prayed for appears to be impermissible. In the first place,
Ms. Cerillo had already been dismissed from this position for loss of confidence. She did not contest this dismissal possibly
because the position of Board Secretary II is primarily confidential and the Board of Trustees, when finding her, the incumbent to
the position, to be wanting in faithfulness and integrity dismissed her for that reason alone. She accepted the dismissal without
any ripple and when designated as Coordinator for Extension Services, she indicated acceptance by performing the acts called
for by the designation.

The quarrel between the private respondents, on the one hand, and the PSCA administration, on the other, came about in this
manner:

The Civil Service Commission, mandating a policy, wrote petitioner

Col. Julian J. Loleng, Jr. a letter7 mandating that temporary appointments of officers/employees of the PSCA were to last only up
to December 31, 1992. For a better perspective, We quote a pertinent portion of the letter:

xxx xxx xxx

Please note that temporary appointments last only for a maximum of one (1) year and all personnel appointed
in a temporary capacity can be replaced any time by a civil service eligible. Since you have just been recently
covered by the Civil Service Law and rules, this Field Office approved all your temporary appointments subject
to yearly renewal up to 1992 only. Subsequent appointments should strictly conform with civil service policies.
You may, therefore, advise all your temporary personnel to take civil service examinations in order to be
eligible for appointment.

This letter was implemented by Col. Julian J. Loleng, Jr. Objecting thereto, private respondents pointed out to the PSCA
administration that, in Resolution No. 91-026, dated April 1, 1991, the Board of Trustees declared that all faculty/administrative
employees of the college, while required to acquire civil service eligibilities under pertinent civil service law, rules and
regulations, must exert effort to acquire civil service eligibilities within a period of three years from their temporary appointments.
This, the private respondents believe should be taken to mean that, should they acquire civil service eligibilities within that period
of three years, they cannot be terminated from the service.
PoliRev Cases 1
The fact that private respondent Cerillo passed the requisite Civil Service Examination after the termination of her temporary
appointment is no reason to compel petitioners to reappoint her. Acquisition of civil service eligibility is not the sole factor for
reappointment. Still to be considered by the appointing authority are: performance, degree of education, work experience,
training, seniority, and, more importantly, as in this case, whether or not the applicant enjoys the confidence and trust of the
appointing power. As We said earlier, the position of Board Secretary II, by its nature, is primarily confidential, requiring as it
does "not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which ensures
freedom from misgivings of betrayals of personal trust or confidential matters of state." 8 In other words, the choice of an
appointee from among those who possessed the required qualifications is a political and administrative decision calling for
considerations of wisdom, convenience, utility and the interests of the service which can best be made by the Head of the office
concerned.9

It cannot be overemphasized that the PSCA Board Resolution No. 91-026 must yield to the Civil Service Commission policies on
the issuance of temporary appointments. When the Civil Service Commission directed that temporary appointments were to be
effective only up to 1992, it did so in pursuance of the general purpose of the civil service law, as stated under Section 2 of
Republic Act No. 2260, as amended, which is "to ensure and promote the constitutional mandate regarding appointments only
according to merit and fitness and to provide within the public service a progressive system of personal administration to ensure
the maintenance of an honest and
efficient progressive and courteous civil service in the Philippines. 10 For that matter, it is vested with the function, among others,
to promulgate policies, standards and guidelines for the civil service and adopt plans and programs to promote economical,
efficient and effective personnel administration in the government. 11

We hold that reappointment to the position of Board Secretary II is an act which is discretionary on the part of the appointing
power. Consequently, it cannot be the subject of an application for a writ of mandamus.

Reinstatement is technically issuance of a new appointment which is essentially discretionary, to be performed by the officer in
which it is vested according to his best lights, the only condition being that the appointee should possess the qualifications
required by law. 12 Such exercise of the discretionary power of appointment cannot be controlled, not even by the Court as long
as it is exercised properly by the appointing authority. 13

It is Our holding that the questioned order of reinstatement amounts to an undue interference by the Court in the exercise of the
discretionary power of appointment vested in the PSCA Board of Trustees.

Surprisingly, the Court a quo, while upholding the right of private respondent Cerillo to a reappointment, adhered to this
pontification by stating that:

The appointment of the petitioners to their former positions is not a matter of right; rather, it is a matter of
discretion on the part of the respondents. Mandamus  cannot be availed of to compel anyone to exercise his
discretion absent any showing of grave abuse of discretion.

III

The termination of the services of private respondents was proper and legal, it being the consequence of the Board of Trustees'
power to appoint. The view of respondent Judge, however, is that there was no termination ordered. Either the employees'
contracts lapsed or their temporary appointments were abrogated by circulars from the Civil Service Commission. This, as a
necessary consequence of the transition from the Philippine Air Force College of Aeronautics (PAFCA) to the Philippine State
College of Aeronautics (PSCA).

We agree with respondent Judge's disquisition on this point:

To the question was the termination of the services of the petitioners legal or not?, the only answer is there was
not termination to speak of. Termination presupposes an overt act committed by a superior officer. There was
none whatsoever in the case at bar. At most, Col. Julian (Loleng) gave notice to the petitioners of the expiration
of their respective contracts, Petitioners appointment or employment simply expired either by its very own
terms, or because it may not exceed one year, but most importantly because the PAFCA was dissolved and
replaced by the PSCA. The notice given by Col. Loleng to the petitioners seem to have been misunderstood by
them as an act of dismissal which as they correctly state, belongs to the Board of Trustees alone.

IV

Considering Our finding that there is merit to the petition, the issue as to whether attorney's fees and costs of litigation should be
awarded to private respondent Rosario V. Cerillo as adjudged in the questioned decision of respondent Judge has become moot
and academic. At any rate, the Court holds that the said award could not have been imposed because, while it was directly
ordered in the dispositive portion of the decision, it was neither discussed nor justified in the body of the questioned decision.
Clear on this point is Our decision in  Policarpio vs. Court of Appeals, 194 SCRA 129, 742, [1991]: "The Court had occasion to
state that the reason for the award of attorney's fees must be stated in the text of the decision, otherwise, if it is stated only in the
dispositive portion of the decision, the same shall be disallowed." This ruling We reiterated in the case of  Koa vs. Court of
Appeals, 219 SCRA 541, 549, [1991], citing Central Azucarcra de Bais vs. Court of Appeals, 188 SCRA 328, 340, where it was
stated that "The award of attorney's fees must be disallowed for want of factual and legal premise in the text of the decision
rendered by the court of origin and the appellate court as well."

WHEREFORE, the petition is GRANTED. The challenged decision, dated January 31, 1994, insofar as it ordered the
reinstatement of
Ms. Rosario V. Cerillo and the payment to the latter of back wages and attorney's fees, and the Order, dated June 29, 1994, of
respondent
PoliRev Cases 1
Judge Salvador P. de Guzman, Jr. are hereby declared null and void and ordered set aside. The temporary restraining
order/preliminary injunction heretofore issued is hereby made permanent.

SO ORDERED.
PoliRev Cases 1
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. Nos. 94878-94881             May 15, 1991

NORBERTO A. ROMUALDEZ III, petitioner,

vs.
CIVIL SERVICE COMMISSION* and THE PHILIPPINE COCONUT AUTHORITY, respondents.

Fernando T. Collantes for petitioner.

GANCAYCO, J.:

By this petition the intervention of public respondent Civil Service Commission (SCS) is sought to compel public respondent
Philippine Coconut Authority (PCA) to reinstate and extend a permanent appointment to petitioner as Deputy Administrator for
Industrial Research and Market Development.

Petitioner was appointed and served as a Commercial Attache of the Department of Trade continuously for twelve years from
September, 1975 to August 30, 1987. His civil service eligibilities are: Patrolman of the City of Manila (1963 CS Exam) and a
Commercial Attache (1973 CS Exam).

On September 1, 1987, he was transferred to the respondent PCA whereby he was extended an appointment as Deputy
Administrator for Industrial Research and Market Development. 1 The nature of his appointment was "reinstatement" and his
employment status was "temporary," for the period covering September 1, 1987 to August 30, 1988. His appointment was
renewed for another six months from September 1, 1988 to February 28, 1989 also on a "temporary" status and subject to
certain conditions to which petitioner agreed.

When his appointment expired on February 28, 1989, the Governing Board did not renew the same so he was promptly
informed thereof by the Acting Chairman of the Board of the PCA, Apolonio V. Bautista.2

On February 6, 1990, petitioner appealed to respondent CSC He requested reinstatement to his previous position in PCA and in
support of the request, he invoked the provisions of (CSC) Memorandum Circular No. 29 dated July 19, 1989. 3

Respondent CSC denied petitioner's request for reinstatement on May 2, 1990 by way of its Resolution No. 90-407, holding that
CSC Memorandum Circular No. 29 was not applicable to petitioner's case because it took effect on July 19, 1989 when
petitioner had long been out of the government service since February 28, 1989 and that his reappointment was essentially
discretionary on the part of the proper appointing authority.

On May 11, 1990, respondent PCA appointed Mr. Roman Santos to the contested position.

Petitioner moved for a reconsideration of Resolution No. 90-407 but it was denied by respondent CSC in Resolution No. 90-693
dated July 31, 1990.4

Hence, petitioner filed this petition for certiorari, prohibition and mandamus with a prayer for the issuance of a writ of preliminary
injunction and/or temporary restraining order, raising the following issues—

l. Public Respondent Civil Service Commission committed grave abuse of discretion amounting to capricious,
whimsical, and despotic refusal to perform a legal/constitutional duty to enforce the Civil Service Law and/or constituting
non-feasance/mis-feasance in office in issuing Resolution Nos. 90-407 and 90-693;

2. The legal issue of the applicability of Civil Service Commission Circular No. 29, Series 1989 on the appointment of
petitioner as PCA Deputy Administrator for Industrial Research and Market Development;

3. The legal issue as to whether it is mandatory for an appointing authority to extend permanent appointments to
selected appointees with corresponding civil service eligibilities;

4. Public respondent Civil Service Commission committed grave abuse of discretion amounting to lack of jurisdiction
and/or non-feasance/misfeasance of official functions in not exercising its authority to enforce/implement the Civil
Service Law and in not affording petitioner who belongs to the career service in the government the protective security
of tenure and due process clause of the Philippine 1987 Constitution as well as the Civil Service Law under P.D. 807;

5. Public respondent Philippine Coconut Authority unlawfully and maliciously deliberately failed/refused to strictly
comply with the provision of par. a, Section 25 of P.D. 807 in the matter of extending permanent appointment to
petitioner constituting likewise grave abuse of discretion on the part of public respondent Civil Service Commission
amounting to gross ignorance of the law in not correcting/rectifying such malicious and deliberate non-compliance, in
view of the mandatory directive of Section 8, Rule III of the Civil Service Rules on Personnel Actions and Policies. 5
PoliRev Cases 1
The petition is devoid of merit.

No doubt the appointment extended to petitioner by respondent PCA as PCA Deputy Administrator for Industrial Research and
Market Development was temporary. Although petitioner was formerly holding a permanent appointment as a commercial
attache, he sought and accepted this temporary appointment to respondent PCA.

His temporary appointment was for a definite period and when it lapsed and was not renewed on February 28, 1987, he
complains that there was a denial of due process. This is not a case of removal from office. Indeed, when he accepted this
temporary appointment he was thereby effectively divested of security of tenure. 6 A temporary appointment does not give the
appointee any definite tenure of office but makes it dependent upon the pleasure of the appointing power. 7 Thus, the matter of
converting such a temporary appointment to a permanent one is addressed to the sound discretion of the appointing authority.
Respondent CSC cannot direct the appointing authority to make such an appointment if it is not so disposed. 8

The duty of respondent CSC is to approve or disapprove an appointment.1âwphi1 Its attestation is limited to the determination
whether the appointee possesses the required qualifications for the position as the appropriate civil service eligibility. 9

Petitioner invokes CSC Memorandum Circular No, 29, S. 1989, dated July 19, 1989 which provides—

(a) A permanent appointment shall be 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 in pursuance thereof. (Section 25 (a), P.D. 807).

(b) While the appointing authority is given a wide latitude of discretion in the selection of personnel for his department or
agency, in the exercise of this discretion he shall be guided by and subject to the Civil Service Law and Rules. 10

As aptly observed by respondent CSC said circular cannot be given retrospective effect as to apply to the case of petitioner who
was separated from the service on February 28, 1989. And even if the said circular may apply to petitioner's situation, under said
circular it is recognized that "the appointing authority is given a wide latitude of discretion in the selection of personnel of his
department or agency." Respondent PCA exercised its discretion and opted not to extend the appointment of petitioner. It
cannot be compelled to extend petitioner's appointment, much less can it be directed to extend a permanent appointment to
petitioner. A discretionary duty cannot be compelled by mandamus.11 More so when as in this case petitioner has not shown a
lawful right to the position. If the legal rights of the petitioner are not well-defined, clear and certain, the petition must be
dismissed.12

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.
PoliRev Cases 1
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 99336               June 9, 1992

MELANIO S. TORIO, Petitioner,
vs.
CIVIL SERVICE COMMISSION, NATIONAL PRINTING OFFICE, OFFICE OF THE PRESS SECRETARY and EFREN
CAMACHO, Respondents.

x---------------x

G.R. No. 100178

JAIME ESPANOLA, Petitioner,
vs.
CIVIL SERVICE COMMISSION, LETTY CANGAYDA, NATIONAL PRINTING OFFICE and THE OFFICE OF THE PRESS
SECRETARY, Respondents.

DECISION

GUTIERREZ, JR., J.:

These two consolidated petitions assail the resolutions of the Civil Service Commission (CSC) revoking the appointment of
herein petitioners on the ground that they lacked the necessary civil service eligibility at the time of the issuance of their
appointments.

The same series of events gave rise to the controversy in these two petitions.

Executive Order No. 285 issued on July 25, 1987 abolished the General Services Administration (GSA) including all offices and
agencies under it. The General Printing Office (GPO) which was under the GSA was merged with the relevant printing units of
the Philippine Information Agency (PIA) and out of the merger arose the National Printing Office (NPO) which was placed under
the control and supervision of the Office of the Press Secretary (OPS). A new plantilla of personnel for the NPO was prepared
and approved and the affected officers and employees continued to perform their respective duties and responsibilities in a hold-
over capacity pending the implementation of the reorganization.

The petitioner in G.R. No. 99336, Melanio Torio, was the Chief of the Production Staff of the Printing Division, PIA, while the
petitioner in G.R. No. 100178, Jaime Espanola, was a Bindery Foreman at the PIA. They continued discharging their functions in
a hold-over capacity after the PIA was merged with the GSA. On March 1, 1988, in accordance with the new staffing pattern of
the NPO, petitioner Torio was temporarily appointed as Assistant Operations Superintendent of Printing while petitioner
Espanola was appointed as Temporary Supervising Book-binder. Both appointments lapsed on February 28, 1989. So on March
1, 1989, petitioner Torio was extended a renewal appointment which was likewise in a temporary capacity while petitioner
Espanola was issued another appointment as Supervising Bookbinder with a permanent status. On the same date, Espanola
was granted a testimonial eligibility.

On July 1, 1989, the positions of both petitioners were upgraded—the Assistant Operations Superintendent of Printing was
changed to Assistant Superintendent of Printing and the Supervising Bookbinder to Bookbinder IV. This time, another
appointment was issued to Torio for the upgraded position together with his change of status from temporary to permanent.
Espanola, on the other hand, was given only a notice of the upgrading of his position inasmuch as he was already holding it in a
permanent capacity.

Prior to the appointments of the petitioners to the permanent items, protests were lodged with the CSC. The protestants were
Efren Camacho and Letty Cangayda, the private respondents in G.R. No. 99336 and G.R. No. 100178, respectively. The CSC
referred Camacho’s protest to the NPO while Cangayda’s protest was referred to the Reorganization Appeals Board of the OPS.
The offices concerned did not take any action on the referrals by the CSC so the latter was constrained to resolve the protests
based on the available documents or papers before it.

On January 7, 1991, the CSC issued a resolution in CSC Case No. 796 revoking the appointment of Torio and ordering those
qualified, including Camacho, to be evaluated for the position. Subsequently, on February 5, 1991, the CSC rendered another
resolution in CSC Case No. 832 cancelling Espanola’s appointment and ordering the reappointment of Cangayda to the position.
The motions for reconsideration filed separately by the present petitioners were denied for lack of merit. Hence, the present
recourse to this Court.

As was stated earlier, the two petitions herein were consolidated in a resolution of this Court on September 3, 1991. A temporary
restraining order, as prayed for by the petitioners, was issued pursuant to the Court’s resolution dated October 10, 1991.

On the basis of the pleadings before us, we give due course to the petitions and decide them on their respective merits.

The two petitions raise the following assignments of errors:

PoliRev Cases 1
G.R. No. 99336.

"THE RESPONDENT CIVIL SERVICE COMMISSION DID NOT CAREFULLY REVIEW THE RECORDS OF THE CASE IN
RESOLVING THE PETITIONER’S MOTION FOR RECONSIDERATION.

II

"THE RESPONDENT CIVIL SERVICE COMMISSION WAS UTTERLY WRONG IN RULING THAT AT THE TIME OF THE
ISSUANCE OF HIS APPOINTMENT IN QUESTION, PETITIONER TORIO WAS NOT QUALIFIED FOR ALLEGED LACK OF
ELIGIBILITY AND THE REQUIRED EXPERIENCE THEREFOR.

III

"THE RESPONDENT CIVIL SERVICE COMMISSION WAS UTTERLY WRONG IN RULING ‘THAT IN THE PRESENCE OF
QUALIFIED EMPLOYEES IN THE AGENCY, THE PROPOSED PLACEMENT OR APPOINTMENT OF ONE WHO IS NOT
QUALIFIED (NOT ELIGIBLE) IS NOT IN ORDER FOR THE REASON THAT AT THE TIME THE APPOINTMENT IN
QUESTION WAS ISSUED, OTHER CONTENDERS WITH ‘PERMANENT APPOINTMENTS LIKE PROTESTANT SANTIAGO
WERE NEVER CONSIDERED." (Rollo, G.R. No. 99336, p. 93)

G.R. No. 100178

"THAT IF THE AFORECITED RESOLUTIONS OF THE RESPONDENT CIVIL SERVICE COMMISSION ARE ENFORCED,
PETITIONER, A PERMANENT CAREER CIVIL SERVICE EMPLOYEE WILL BE DISMISSED OR REMOVED FROM THE
SERVICE WITHOUT DUE PROCESS OF LAW AND WITHOUT JUST AND VALID CAUSE.

II

"THAT THE RESOLUTIONS ARE NOT SUPPORTED BY THE EVIDENCE ON RECORD.

III

"THAT ERRORS OF LAW OR IRREGULARITIES HAVE BEEN COMMITTED WHICH ARE PREJUDICIAL TO THE INTEREST
OF THE PETITIONERS." (Rollo, G.R. No. 99336, p. 93)

Petitioner Torio alleges that at the time of his appointment, he was already a civil service eligible having passed the career
service professional examination held on July 26, 1987 and the results of which were released on January 13, 1988. He further
contends that Camacho’s protest has become moot and academic inasmuch as the temporary appointment against which the
protest was directed has already expired. Consequently, the Commissioner has no authority to withdraw its previous approval
which has lapsed. Torio likewise stresses the fact that he has security of tenure as provided under the Constitution such that his
removal must only be for cause and after due process.

Private respondent Camacho, on the other hand, avers that the Commision has the power to review appointments for the
correction of mistakes in the approval or disapproval thereof. Moreover, at the time of Torio’s appointment, there were other
qualified eligibles who were not given the chance to be considered for the contested position through no fault of their own. Thus,
the Commission did not exceed its authority when in the exercise of its power of review, it revoked the appointment of petitioner.

The Solicitor General filed an adverse Comment stating that the CSC committed grave abuse of discretion in revoking the
permanent appointment of petitioner Torio who was found to possess all the qualifications required of the position. It added that
an appointment is essentially within the discretionary power of the appointing authority, subject to the only condition that the
appointee should possess the qualifications required by law.

Petitioner Espanola, for his part, contends that he possesses the qualifications for the position of Supervising Bookbinder (now
Bookbinder IV). He is a Supervising Bookbinder Eligible; he has more than tenyears of service very relevant to the duties and
functions of Supervising Bookbinder; he is not facing any administrative charge; and he possesses the minimum educational
qualifications to the position for all of which his appointment has been approved by the CSC. He further contends that inasmuch
as his appointment has already been approved by the CSC, it cannot be withdrawn, recalled or cancelled. He takes the same
stand as petitioner Torio with respect to the protest being moot and academic as well as his security of tenure under the
Constitution.

Private respondent Cangayda, on the other hand, claims that the appointment of petitioner Espanola is a flagrant violation of
Republic Act 6656 entitled "An Act to Protect the Security of Tenure of Government Officers and Employees in the
Implementation of Government Reorganization." She was a Supervising Bookbinder under a permanent status prior to the re-
organization and she should, thus, thereafter, be appointed to the same item in the same capacity pursuant to the provisions of
the aforementioned Act. She contends that her protest is primarily directed against her demotion and non-reappointment to the
position of Supervising Bookbinder as well as the consequential appointment of petitioner in her stead and not petitioner’s
temporary appointment. Thus, petitioner Espanola’s argument that his temporary appointment as Supervising Bookbinder
cannot be the subject of an appeal since the same has already expired is offtangent. More importantly, Espanola is not qualified
for appointment to the contested position since at the time of his appointment, he was not a civil service eligible and there was a
PoliRev Cases 1
civil service eligible actually available and ready to accept the appointment in the person of private respondent Cangayda. And
since the appointee is not qualified, the CSC, being the central personnel agency of the government, can look into the legality of
an appointment and consequently order its revocation and cancellation.

The Solicitor General, in his comment for the public respondent added that the subsequent acquisition of eligibility by the
petitioner is of no moment inasmuch as the reckoning point should be the time of appointment and not any time before or after.

The CSC, in revoking the appointment of herein petitioners based its resolutions primarily on the fact that the petitioners did not
possess the civil service eligibility called for by their respective positions. The CSC ruled further, that their subsequent
acquisition of eligibility will not validate the otherwise invalid appointment inasmuch as the material date is the date of
appointment.

We first rule on the nature of the petitioner’s appointments.

The foregoing pronouncements of the CSC hold true only in-concerned. However, it must be noted that under Section 25
Presidential Decree 807 otherwise known as the Civil Service Decree of the Philippines, 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 a vacancy; (2) there are no appropriate eligibles; (3) the temporary appointment shall not
exceed twelve months; and (4) he may be replaced sooner if a qualified civil service eligible becomes available.

Still, at the time of the temporary appointment of petitioner Espanola, a civil service eligible who was willing to accept the
position was available in the person of private respondent Cangayda. Apparently, there was disregard of the mandate of the law
when Espanola’s temporary appointment was issued. Nevertheless, the petitioner has correctly pointed out that the protest
lodged by private respondent Cangayda had become moot and academic inasmuch as petitioner Espanola’s temporary
appointment had already lapsed on February 28, 1989. It is erroneous for the CSC to treat Cangayda’s protest as a continuing
one. The same holds true for the protest lodged by Camacho.

A permanent appointment is not a continuation of the temporary appointment—these are two distinct acts of the appointing
authority. The fact that the appointees in the two appointments are one and the same person is purely incidental. Any
irregularities in the former appointment are not to be automatically carried over to the latter. If the protest is directed against the
temporary appointment, it would be illogical to carry-over the merits of the protest to the subsequent permanent appointment.

The preceding ruling should not be construed to mean, however, that by the mere expedient of appointing the temporary
appointee to a permanent status, the appointing authority can deprive the protestant of an opportunity to question the
appointment. First, the protestant is not precluded from filing another protest directed against the permanent appointment.
Second, if it can be shown that the appointment was purposely done to moot the protest or is characterized by malice, then
corrective action can be taken and, moreover, the erring officials can be proceeded against administratively.

It must be emphasized that if a protest filed against a temporary appointment is carried over to the subsequent permanent
appointment to the same position of the same person, an anomalous situation will arise wherein the permanent appointee’s
security to his position would be jeopardized by considerations outside of his permanent appointment.

The chances of the occurrence of the previously described situation would be minimized if the CSC promptly acts upon the
protest. After giving the department or agency to which the protest is referred as reasonable deadline to act, its inaction may be
a basis for the CSC to give positive relief. It is worthy of note that the CSC has recognized the importance of the speedy
disposition of cases in its resolution No. 89-779, which provided for the Rules on Protest Cases requiring the disposition of
cases within 60 days from filing thereof.

The situation in the present petitions could have been prevented if the CSC did not wait for two years before taking the
appropriate action on the protests filed.

Prescinding from the foregoing discussions, it is established that the questioned resolutions of the CSC should be declared
inapplicable to the petitioners because they refer to the temporary appointments which had already lapsed when they were
issued.

At any rate, this Court deems it best to make a ruling on the validity of the permanent appointments inasmuch as the same has
already been put in issue in the present petitions. Moreover, if the present petitions be granted without prejudice to the private
respondents’ right to file a protest against the permanent appointments of the petitioners, then that would unduly prolong the
resolution of who should rightfully be appointed to the contested positions to the prejudice of the public service.

THE PERMANENT APPOINTMENTS OF PETITIONERS ESPANOLA AND TORIO

The Qualification Standard (QS) for the position of Bookbinder IV provides the following minimumn requirements:

EDUCATION : Completion of Secondary School Course

EXPERIENCE : Two years of experience in bindery work

ELIGIBILITY : Bookbinder

Supervising Bookbinder
PoliRev Cases 1
As to the QS for the position of Assistant Superintendent of Printing, the following minimum requirements are prescribed:

EDUCATION: Bachelor’s degree preferably in Commerce or Business Administration

EXPERIENCE: 4 years of progressive responsible experience in different technical activities of printing operations or other
related work

ELIGIBILITY: Career service

Sub-professional

The appointing authority should, thus, appoint persons to the contested positions possessing the aforementioned minimum
qualifications so as to be within ambits of the law. For even if the appointing authority is given a wide latitude in the exercise of
its discretion in personnel actions, the appointee must first possess the minimum qualifications prescribed by law (Cortez v. The
Civil Service Commission, 195 SCRA 216 [1991]).

At the time petitioner Espanola was issued a permanent appointment, he was also granted testimonial eligibility such that he is
to be considered as possessing the requisite civil service eligibility for his position. The same holds true with petitioner Torio. At
the time of his permanent appointment, he was already a career service professional, having passed the civil service
examination held on July 26, 1987 and the results of which released on January 13, 1988. In fact, even at the time of Torio’s
temporary appointment on March 1, 1988, he already possessed the civil service eligibility called for by the position.

The QS established for the contested positions do not only prescribed the eligibility but also the minimum education and
experience required of the position. Even if the petitioners possess the required civil service eligibility, there would still be abuse
of discretion by the appointing authority if the other qualifications are not satisfied.

Based on the QS listed above, the records show that both petitioners possess qualifications required of the contested positions.

Private respondent Cangayda, however, questions petitioner Espanola’s non-completion of a secondary course as prescribed by
the QS.

It would be appropriate to state at the outset that when necessary, education, experience or training may be used
interchangeably to offset deficiencies (in fact, the CSC issued Memorandum Circular No. 23 series of 1991 expressly allowing
the offsetting of deficiencies except the required eligibility). The necessity exists if the appointee’s training or experience is of
such a level that the same would more than supplement the deficiency in education considering the demands of the position in
question. The converse holds true if the appointee’s deficiency is in the required training or experience. The decision as to when
the conditions give rise to a necessity to interchange education with experience and vice-versa upon the sound discretion of the
appointing authority. This is not to be viewed as an unbridled license given to the appointing authority to appoint whomsoever he
desires. This is rather a recognition of the fact that the appointing authority is in the best position to determine the needs of his
department or agency and how to satisfy those needs. Moreover, it is precisely the province of the QS to provide the gauge by
which the appointing authority shall exercise his discretion. The QS has been defined in Section 20, PD 807 as expressing the
minimum requirements for a class of position in terms of education, training and experience, civil service eligibility, physical
fitness and other qualities required for successful performance. It is, thus, the QS which provides for the considerations upon
which the appointing authority decides when the levels of education of experience may be sufficient to offset each other.

With respect to petitioner Espanola’s case, the necessity to offset the deficiency in education with his training is very apparent
from his work-experience. It must be stressed that the contested position belongs to the trades and crafts group wherein the
emphasis is necessarily on the skill required by the work. There can be no doubt that fitness for the job is developed through
years of actual work. Petitioner Espanola’s service record (Annex "D") shows that from 1973 until his permanent appointment in
1989, he had continuously engaged in bindery work. It must likewise be pointed out that he was extended a testimonial eligibility
which is a confirmation by the appointing authority of his capacity to perform the type of work which his position requires. Worthy
of note is the fact that at the time of the grant of testimonial eligibility, the QS was already being enforced such that the
appointing authority is presumed to have taken into consideration the standards prescribed by the QS. There is, thus, no
escaping the conclusion that Jaime Espanola is qualified to handle the demands of the contested position.

However, this Court does not rule on the validity of the grant of testimonial eligibility. The issue is not before us. Private
respondent Cangayda stated in her brief that an action to question the validity of such grant shall be filed in due time. The
pronouncements of this Court, then, as to the validity of the appointment of petitioner Espanola are without prejudice to the said
action.

With respect to petitioner Torio, on the other hand, the records show that he fully qualifies for the position to which he was
appointed. The Solicitor General, in his adverse comment, aptly summarized the petitioner’s qualifications in the following
manner:

"EDUCATION – 1981 To 1983 – "MBA" Candidate for Graduation, Ateneo de Manila;

1965 to 1969 – "A.B. Political Science", University of the Philippines;

1960 to 1965 – "Valedictorian, High School", Luna Colleges; and

1955 to 1960 – "1st Honorable Mention, Elementary" Grade Graduate.

PoliRev Cases 1
ELIGIBILITY – Career Service Professional (81.48%) July 26, 1987.

(B) With the Government

(B-1) Sept. 1986 to Dec. 1986 – Acting Chief, Printing Division & Ex. Asst. for Technical Services, PIA;

(B-2) Jan. 1987 to Feb. 1988 – Chief, Production Staff & Chief Printing Div., PIA;

(B-3) Mar. 1, 1988 to Present – Assistant Printing Operations Supt. (now Asst. Supt. Of Printing, NPO).

"Petitioner likewise participated, upon recommendation of his department head as duly authorized by the Executive Secretary, in
the UNIDO Training Programme in the Field of Printing Industry held in Karl Marx Stadt/Dresden/Leipzig, GDR from September
30 to October 13, 1990 (Annexes "E", "E-1" to "E-5).

"On November 24 to December 5, 1986 petitioner attended and actively participated in the Evaluation Workshop on Audiovisual
Materials for the Book Publishing Course conducted by the UP Institute of Mass Communication in cooperation with UNESCO
(Paris) Annex "L-1). Later, particularly on May 28 to June 6, 1987, petitioner completed a Seminar Workshop for Quality Printing
through Better Supervision of Printing Shop, conducted by the Printing Industry Board Foundation (Annex "L-2"). Then again on
November 12 to 14, 1987 petitioner participated in the Seminar on Promotion of PIA’s Programs conducted by the Philippine
Information Agency (Annex "L-3"). Still persistent with the quest for better knowledge, petitioner again attended the
Seminar/Workshop on The Business of Book Publishing-Managing for Profit and Economic Choices" conducted by Peter H.
Neumann on November 24 to 27, 1987 sponsored by the United States Information Service and the Book Development
Association of the Philippines (Annex "L-4")," (Rollo, G.R. No. 99336, p. 93-95)

Although petitioner Torio majored in Political Science and not in Commerce or Business Administration, the QS provided that the
latter two are mere preferences. As to private respondent’s claim that Torio had only one year, six months and eight days of
experience in printing operations at the time of his appointment (it must be noted, however, that the private respondent was
referring to Torio's government service at the time of his temporary appointment since at the time of permanent appointment,
Torio had over two years of government service), the QS provided that the experience may be on other related work. The
appointing power may have found Torio’s previous work experiences sufficient to tack to the number of years of experience in
actual printing operations coupled with the numerous seminars and trainings he had attended. There is thus, no evident violation
of the QS.

From the foregoing, it is established that petitioners Espanola and Torio are qualified for the positions to which they were
appointed. The appointing authority’s exercise of discretion in the choice of appointees must be respected even if there are other
persons who are likewise qualified for the position such as private respondents Cangayda and Camacho. In fact, the CSC does
not have the power to overrule such discretion even if its finds that there are other persons more qualified to the contested
position. (italics supplied) [De la Cruz v. The Civil Service Commission, G.R. No. 88333, December 2, 1991; Cortez v. The Civil
Service Commission, supra; Gaspar v. Court of Appeals 190 SCRA 774 [1990]).

As has been held in Español v. The Civil Service Commission, G.R. No. 85479, March 3, 1992, "every particular job in an office
calls for both formal and informal qualifications. Formal qualifications such as age, number of academic units in a certain course,
seminars attended and so forth, may be valuable but so are such intangibles as resourcefulness, team spirit, courtesy, initiative,
loyalty, ambition, prospects for the future and best interest of the service. Given the demands of a certain job, who can do it best
should be left to the head of the Office concerned provided the legal requirements for the office are satisfied."

This Court does not overlook the fact that prior to the reorganization of the GSA, the petitioners were holding contractual or
casual employment. This circumstance is of utmost importance considering the provision of Section 4, Republic Act. 6656:

"SECTION 4. 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 or in case there are not enough comparable
positions, to positions next lower in rank. x x x"

In Medenilla v. The Civil Service Commission, 194 SCRA 278 [1991], this Court stated the rationale for the preference given to
permanent employees in the following manner:

"x x x 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. x x x"

The Court, then, continued by making the following observations:

x x x that the presumption is not always true and the law does not preclude the infusion of new blood, younger dynamism or
necessary talents into the government service. "If, after considering all the current employees, the Department Secretary cannot
find among them the person he needs to revive a moribund office or to upgrade second rate performance, there is nothing in the
Civil Service Law to prevent him from reaching out to other Departments or to the private sector provided all his acts are bona
fide and for the best interest of the public service and the person chosen has the needed qualifications."

It is, thus, clear from the foregoing that employees or officers holding permanent appointments do not automatically get
appointed to the new positions. The appointing authority is still given latitude in making his choice considering the duty resting
on his discretion to see to it that the best interest of the public is served with each appointment he makes. More so in cases of
reorganization of offices, where in making the new appointments, the appointing authority has also to take into consideration the
purposes and objectives of the reorganization. In the present case, the reorganization was undertaken to promote economy,
efficiency and effectiveness in the delivery of public services. The appointing authority should be given sufficient discretion to be
PoliRev Cases 1
able to ensure that the purposes and objectives are met. It is in this light that the appointments of petitioners Espanola and Torio
should be viewed.

Petitioners Espanola and Torio were validly appointed to the questioned positions. Only the corollary issue of whether or not
private respondent Cangayda's security of tenure was violated by the appointment of petitioner Espanola remains to be settled.

In Mendoza v. Quisumbing, 186 SCRA 108 [1990], the ruling in favor of the dismissed personnel was made in the light of the
finding that the reorganization undertaken was not in good faith. The Court even reiterated the principles in De La Llana v. Alba,
112 SCRA 294 [1982] and Cruz v. Primicias, 23 SCRA 998 [1968] that the abolition of an office within the competence of a
legitimate body if done in good faith suffers from no infirmity and a valid abolition of office is neither removal nor separation of
the incumbents.

The same principles were enunciated earlier in Dario v. Mison, 176 SCRA 84 [1989] where the Court made the following
declarations:

"x x x Reorganizations in this jurisdiction have been regarded as valid provided they are pursued in good faith.1âwphi1 As a
general rule, a reorganization is carried out in ‘good faith’ if it is for the purpose of economy or to make bureaucracy more
efficient. In that event, no dismissal (in case of a dismissal) or separation actually occurs because the position itself ceases to
exist. And in that case, security of tenure would not be a Chinese wall. x x x" (Underscoring supplied)

It is worthy to re-state that the present petitions arose due to the abolition of the GSA and its merger with the relevant printing
units of the PIA giving rise to the NPO. There is no showing that the reorganization was undertaken for any reason other than its
purpose of promoting economy, efficiency and effectiveness in the delivery of public service. In fact, the private respondents did
not put in issue the validity of the reorganization of the offices. They questioned only their non-appointment to the contested
positions. We are constrained to assume that there was in the present case, a bona fide reorganization. Hence, private
respondent Cangayda cannot successfully impugn her alleged removal as illegal for under the facts of the case, she was not
dismissed; rather, her former position was abolished. More important, this Court has ruled in Siete v. Santos, 190 SCRA 50
[1990] that Section 16, Article VIII of the 1987 Constitution explicitly authorizes the dismissal of career civil service employees
not for cause but as a result of the reorganization following the ratification of said Constitution.

As to the alleged violation of Republic Act 6656, it must be emphasized that the question has to be resolved in the light of the
prevailing bona fide rule in reorganization of the public offices. The foregoing principle has been applied in Floreza v.
Ongpin, 182 SCRA 692 [1990] where the Court ruled that:

"x x x Section 2 of Republic Act 6656 entitles a victim of a removal in violation of the bona fide rule to a reinstatement or
reappointment to the position from which he was removed" (underscoring supplied).

There is nothing in this decision which precludes the more appropriate recourse of private respondent Cangayda to appeal to
the better judgment of the Department Head to consider her for other vacant positions more commensurate to her qualifications.

WHEREFORE, premises considered, the Court hereby GRANTS the petitions in G.R. No. 99336 and G.R. No. 100178. The
assailed resolutions of the Civil Service Commission in CSC Case No. 796 and CSC case No. 832 are set aside. The permanent
appointments of petitioners Melanio S. Torio and Jaime Espanola are declared valid. The temporary restraining order issued
pursuant to the Court's resolution dated October 10, 1991 is made permanent.

SO ORDERED.
PoliRev Cases 1
EN BANC

G.R. No. 149036            April 2, 2002

MA. J. ANGELINA G. MATIBAG, petitioner,

vs.
ALFREDO L. BENIPAYO, RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., VELMA J. CINCO, and GIDEON C.
DE GUZMAN in his capacity as Officer-In-Charge, Finance Services Department of the Commission on
Elections, respondents.

CARPIO, J.:

The Case

Before us is an original Petition for Prohibition with prayer for the issuance of a writ of preliminary injunction and a temporary
restraining order under Rule 65 of the 1997 Rules of Civil Procedure. Petitioner Ma. J. Angelina G. Matibag ("Petitioner" for
brevity) questions the constitutionality of the appointment and the right to hold office of the following: (1) Alfredo L. Benipayo
("Benipayo" for brevity) as Chairman of the Commission on Elections ("COMELEC" for brevity); and (2) Resurreccion Z. Borra
("Borra" for brevity) and Florentino A. Tuason, Jr. ("Tuason" for brevity) as COMELEC Commissioners. Petitioner also questions
the legality of the appointment of Velma J. Cinco1 ("Cinco" for brevity) as Director IV of the COMELEC’s Education and
Information Department ("EID" for brevity).

The Facts

On February 2, 1999, the COMELEC en banc appointed petitioner as "Acting Director IV" of the EID. On February 15, 2000,
then Chairperson Harriet O. Demetriou renewed the appointment of petitioner as Director IV of EID in a "Temporary" capacity.
On February 15, 2001, Commissioner Rufino S.B. Javier renewed again the appointment of petitioner to the same position in a
"Temporary" capacity.2

On March 22, 2001, President Gloria Macapagal Arroyo appointed, ad interim, Benipayo as COMELEC Chairman,3 and
Borra4 and Tuason5 as COMELEC Commissioners, each for a term of seven years and all expiring on February 2, 2008.
Benipayo took his oath of office and assumed the position of COMELEC Chairman. Borra and Tuason likewise took their oaths
of office and assumed their positions as COMELEC Commissioners. The Office of the President submitted to the Commission
on Appointments on May 22, 2001 the ad interim appointments of Benipayo, Borra and Tuason for confirmation. 6 However, the
Commission on Appointments did not act on said appointments.

On June 1, 2001, President Arroyo renewed the ad interim appointments of Benipayo, Borra and Tuason to the same positions
and for the same term of seven years, expiring on February 2, 2008. 7 They took their oaths of office for a second time. The
Office of the President transmitted on June 5, 2001 their appointments to the Commission on Appointments for confirmation. 8

Congress adjourned before the Commission on Appointments could act on their appointments. Thus, on June 8, 2001, President
Macapagal Arroyo renewed again the ad interim appointments of Benipayo, Borra and Tuason to the same positions. 9 The Office
of the President submitted their appointments for confirmation to the Commission on Appointments. 10 They took their oaths of
office anew.

In his capacity as COMELEC Chairman, Benipayo issued a Memorandum dated April 11, 2001 11 addressed to petitioner as
Director IV of the EID and to Cinco as Director III also of the EID, designating Cinco Officer-in-Charge of the EID and
reassigning petitioner to the Law Department. COMELEC EID Commissioner-in-Charge Mehol K. Sadain objected to petitioner’s
reassignment in a Memorandum dated April 14, 200112 addressed to the COMELEC en banc. Specifically, Commissioner Sadain
questioned Benipayo’s failure to consult the Commissioner-in-Charge of the EID in the reassignment of petitioner.

On April 16, 2001, petitioner requested Benipayo to reconsider her relief as Director IV of the EID and her reassignment to the
Law Department.13 Petitioner cited Civil Service Commission Memorandum Circular No. 7 dated April 10, 2001, reminding heads
of government offices that "transfer and detail of employees are prohibited during the election period beginning January 2 until
June 13, 2001." Benipayo denied her request for reconsideration on April 18, 2001, 14 citing COMELEC Resolution No. 3300
dated November 6, 2000, which states in part:

"NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred upon it by the Constitution, the
Omnibus Election Code and other election laws, as an exception to the foregoing prohibitions, has RESOLVED, as it is
hereby RESOLVED, to appoint, hire new employees or fill new positions and transfer or reassign its personnel, when
necessary in the effective performance of its mandated functions during the prohibited period, provided that the
changes in the assignment of its field personnel within the thirty-day period before election day shall be effected after
due notice and hearing."

Petitioner appealed the denial of her request for reconsideration to the COMELEC en banc in a Memorandum dated April 23,
2001.15 Petitioner also filed an administrative and criminal complaint 16 with the Law Department17 against Benipayo, alleging that
her reassignment violated Section 261 (h) of the Omnibus Election Code, COMELEC Resolution No. 3258, Civil Service
Memorandum Circular No. 07, s. 001, and other pertinent administrative and civil service laws, rules and regulations.

During the pendency of her complaint before the Law Department, petitioner filed the instant petition questioning the
appointment and the right to remain in office of Benipayo, Borra and Tuason, as Chairman and Commissioners of the
COMELEC, respectively. Petitioner claims that the ad interim appointments of Benipayo, Borra and Tuason violate the
constitutional provisions on the independence of the COMELEC, as well as on the prohibitions on temporary appointments and
PoliRev Cases 1
reappointments of its Chairman and members. Petitioner also assails as illegal her removal as Director IV of the EID and her
reassignment to the Law Department. Simultaneously, petitioner challenges the designation of Cinco as Officer-in-Charge of the
EID. Petitioner, moreover, questions the legality of the disbursements made by COMELEC Finance Services Department
Officer-in-Charge Gideon C. De Guzman to Benipayo, Borra and Tuason by way of salaries and other emoluments.

In the meantime, on September 6, 2001, President Macapagal Arroyo renewed once again the ad interim appointments of
Benipayo as COMELEC Chairman and Borra and Tuason as Commissioners, respectively, for a term of seven years expiring on
February 2, 2008.18 They all took their oaths of office anew.

The Issues

The issues for resolution of this Court are as follows:

1. Whether or not the instant petition satisfies all the requirements before this Court may exercise its power of judicial review in
constitutional cases;

2. Whether or not the assumption of office by Benipayo, Borra and Tuason on the basis of the ad interim appointments issued by
the President amounts to a temporary appointment prohibited by Section 1 (2), Article IX-C of the Constitution;

3. Assuming that the first ad interim appointments and the first assumption of office by Benipayo, Borra and Tuason are legal,
whether or not the renewal of their ad interim appointments and subsequent assumption of office to the same positions violate
the prohibition on reappointment under Section 1 (2), Article IX-C of the Constitution;

4. Whether or not Benipayo’s removal of petitioner from her position as Director IV of the EID and her reassignment to the Law
Department is illegal and without authority, having been done without the approval of the COMELEC as a collegial body;

5. Whether or not the Officer-in-Charge of the COMELEC’s Finance Services Department, in continuing to make disbursements
in favor of Benipayo, Borra, Tuason and Cinco, is acting in excess of jurisdiction.

First Issue: Propriety of Judicial Review

Respondents assert that the petition fails to satisfy all the four requisites before this Court may exercise its power of judicial
review in constitutional cases. Out of respect for the acts of the Executive department, which is co-equal with this Court,
respondents urge this Court to refrain from reviewing the constitutionality of the ad interim appointments issued by the President
to Benipayo, Borra and Tuason unless all the four requisites are present. These are: (1) the existence of an actual and
appropriate controversy; (2) a personal and substantial interest of the party raising the constitutional issue; (3) the exercise of
the judicial review is pleaded at the earliest opportunity; and (4) the constitutional issue is the lis mota of the
case.19 Respondents argue that the second, third and fourth requisites are absent in this case. Respondents maintain that
petitioner does not have a personal and substantial interest in the case because she has not sustained a direct injury as a result
of the ad interim appointments of Benipayo, Borra and Tuason and their assumption of office. Respondents point out that
petitioner does not claim to be lawfully entitled to any of the positions assumed by Benipayo, Borra or Tuason. Neither does
petitioner claim to be directly injured by the appointments of these three respondents.

Respondents also contend that petitioner failed to question the constitutionality of the ad interim appointments at the earliest
opportunity. Petitioner filed the petition only on August 3, 2001 despite the fact that the ad interim appointments of Benipayo,
Borra and Tuason were issued as early as March 22, 2001. Moreover, the petition was filed after the third time that these three
respondents were issued ad interim appointments.

Respondents insist that the real issue in this case is the legality of petitioner’s reassignment from the EID to the Law
Department. Consequently, the constitutionality of the ad interim appointments is not the lis mota of this case.

We are not persuaded.

Benipayo reassigned petitioner from the EID, where she was Acting Director, to the Law Department, where she was placed on
detail service.20 Respondents claim that the reassignment was "pursuant to x x x Benipayo’s authority as Chairman of the
Commission on Elections, and as the Commission’s Chief Executive Officer."21 Evidently, respondents anchor the legality of
petitioner’s reassignment on Benipayo’s authority as Chairman of the COMELEC. The real issue then turns on whether or not
Benipayo is the lawful Chairman of the COMELEC. Even if petitioner is only an Acting Director of the EID, her reassignment is
without legal basis if Benipayo is not the lawful COMELEC Chairman, an office created by the Constitution.

On the other hand, if Benipayo is the lawful COMELEC Chairman because he assumed office in accordance with the
Constitution, then petitioner’s reassignment is legal and she has no cause to complain provided the reassignment is in
accordance with the Civil Service Law. Clearly, petitioner has a personal and material stake in the resolution of the
constitutionality of Benipayo’s assumption of office. Petitioner’s personal and substantial injury, if Benipayo is not the lawful
COMELEC Chairman, clothes her with the requisite locus standi to raise the constitutional issue in this petition.

Respondents harp on petitioner’s belated act of questioning the constitutionality of the ad interim appointments of Benipayo,
Borra and Tuason. Petitioner filed the instant petition only on August 3, 2001, when the first ad interim appointments were
issued as early as March 22, 2001. However, it is not the date of filing of the petition that determines whether the constitutional
issue was raised at the earliest opportunity. The earliest opportunity to raise a constitutional issue is to raise it in the pleadings
before a competent court that can resolve the same, such that, "if it is not raised in the pleadings, it cannot be considered at the
trial, and, if not considered at the trial, it cannot be considered on appeal." 22 Petitioner questioned the constitutionality of the ad
interim appointments of Benipayo, Borra and Tuason when she filed her petition before this Court, which is the earliest
PoliRev Cases 1
opportunity for pleading the constitutional issue before a competent body. Furthermore, this Court may determine, in the
exercise of sound discretion, the time when a constitutional issue may be passed upon. 23 There is no doubt petitioner raised the
constitutional issue on time.

Moreover, the legality of petitioner’s reassignment hinges on the constitutionality of Benipayo’s ad interim appointment and
assumption of office. Unless the constitutionality of Benipayo’s ad interim appointment and assumption of office is resolved, the
legality of petitioner’s reassignment from the EID to the Law Department cannot be determined. Clearly, the lis mota of this case
is the very constitutional issue raised by petitioner.

In any event, the issue raised by petitioner is of paramount importance to the public. The legality of the directives and decisions
made by the COMELEC in the conduct of the May 14, 2001 national elections may be put in doubt if the constitutional issue
raised by petitioner is left unresolved. In keeping with this Court’s duty to determine whether other agencies of government have
remained within the limits of the Constitution and have not abused the discretion given them, this Court may even brush aside
technicalities of procedure and resolve any constitutional issue raised. 24 Here the petitioner has complied with all the requisite
technicalities. Moreover, public interest requires the resolution of the constitutional issue raised by petitioner.

Second Issue: The Nature of an Ad Interim Appointment

Petitioner argues that an ad interim appointment to the COMELEC is a temporary appointment that is prohibited by Section 1
(2), 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." (Emphasis supplied)

Petitioner posits the view that an ad interim appointment can be withdrawn or revoked by the President at her pleasure, and can
even be disapproved or simply by-passed by the Commission on Appointments. For this reason, petitioner claims that an ad
interim appointment is temporary in character and consequently prohibited by the last sentence of Section 1 (2), Article IX-C of
the Constitution.

Based on petitioner’s theory, there can be no ad interim appointment to the COMELEC or to the other two constitutional
commissions, namely the Civil Service Commission and the Commission on Audit. The last sentence of Section 1 (2), Article IX-
C of the Constitution is also found in Article IX-B and Article IX-D providing for the creation of the Civil Service Commission and
the Commission on Audit, respectively. Petitioner interprets the last sentence of Section 1 (2) of Article IX-C to mean that the ad
interim appointee cannot assume office until his appointment is confirmed by the Commission on Appointments for only then
does his appointment become permanent and no longer temporary in character.

The rationale behind petitioner’s theory is that only an appointee who is confirmed by the Commission on Appointments can
guarantee the independence of the COMELEC. A confirmed appointee is beyond the influence of the President or members of
the Commission on Appointments since his appointment can no longer be recalled or disapproved. Prior to his confirmation, the
appointee is at the mercy of both the appointing and confirming powers since his appointment can be terminated at any time for
any cause. In the words of petitioner, a Sword of Damocles hangs over the head of every appointee whose confirmation is
pending with the Commission on Appointments.

We find petitioner’s argument without merit.

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 interim appointment 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.
In Summers vs. Ozaeta,25 decided on October 25, 1948, we held that:

"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)
PoliRev Cases 1
The Constitution imposes no condition on the effectivity of an ad interim appointment, and thus an ad interim appointment 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 Black’s 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 (Black’s 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. Esteban’s 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
respondent’s appointment as Executive Assistant II was recognized and attested to by the Civil Service Commission
Regional Office No. 12. Petitioner’s submission that private respondent’s ad interim appointment is synonymous with a
temporary appointment which could be validly terminated at any time is clearly untenable. 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 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
PoliRev Cases 1
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,33 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 permanent Commissioner than to designate one to act temporarily." (Emphasis supplied)

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. Yorac34 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
President’s 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 President’s
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. The following discussion during the deliberations of the Constitutional Commission elucidates this:

"FR. BERNAS: X x x our compulsory recess now is only 30 days. So under such circumstances, is it necessary to
provide for ad interim appointments? Perhaps there should be a little discussion on that.

xxx

MS. AQUINO: My concern is that unless this problem is addressed, this might present problems in terms of anticipating
interruption of government business, considering that we are not certain of the length of involuntary recess or
adjournment of the Congress. We are certain, however, of the involuntary adjournment of the Congress which is 30
days, but we cannot leave to conjecture the matter of involuntary recess.

FR. BERNAS: That is correct, but we are trying to look for a formula. I wonder if the Commissioner has a formula x x x.

xxx

MR. BENGZON: Madam President, apropos of the matter raised by Commissioner Aquino and after conferring with the
Committee, Commissioner Aquino and I propose the following amendment as the last paragraph of Section 16, the
wordings of which are in the 1935 Constitution: THE PRESIDENT SHALL HAVE THE POWER TO MAKE
APPOINTMENTS DURING THE RECESS OF CONGRESS WHETHER IT BE VOLUNTARY OR COMPULSORY BUT
SUCH APPOINTMENTS SHALL BE EFFECTIVE ONLY UNTIL DISAPPROVAL BY THE COMMISSION ON
APPOINTMENTS OR UNTIL THE NEXT ADJOURNMENT OF THE CONGRESS.

This is otherwise called the ad interim appointments.

xxx

THE PRESIDENT: Is there any objection to the proposed amendment of Commissioners Aquino and Bengzon, adding
a paragraph to the last paragraph of Section 16? (Silence) The Chair hears none; the amendment is
approved."37 (Emphasis supplied)

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 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 other ad interim appointments or reappointments." (Emphasis supplied)

Indeed, the timely application of the last sentence of Section 16, Article VII of the Constitution barely avoided the interruption of
essential government services in the May 2001 national elections. Following the decision of this Court in Gaminde vs.
PoliRev Cases 1
Commission on Appointments,39 promulgated on December 13, 2000, the terms of office of constitutional officers first appointed
under the Constitution would have to be counted starting February 2, 1987, the date of ratification of the Constitution, regardless
of the date of their actual appointment. By this reckoning, the terms of office of three Commissioners of the COMELEC, including
the Chairman, would end on February 2, 2001.40

Then COMELEC Chairperson Harriet O. Demetriou was appointed only on January 11, 2000 to serve, pursuant to her
appointment papers, until February 15, 2002,41 the original expiry date of the term of her predecessor, Justice Bernardo P.
Pardo, who was elevated to this Court. The original expiry date of the term of Commissioner Teresita Dy-Liacco Flores was also
February 15, 2002, while that of Commissioner Julio F. Desamito was November 3, 2001. 42 The original expiry dates of the terms
of office of Chairperson Demetriou and Commissioners Flores and Desamito were therefore supposed to fall after the May 2001
elections. Suddenly and unexpectedly, because of the Gaminde ruling, there were three vacancies in the seven-person
COMELEC, with national elections looming less than three and one-half months away. To their credit, Chairperson Demetriou
and Commissioner Flores vacated their offices on February 2, 2001 and did not question any more before this Court the
applicability of the Gaminde ruling to their own situation.

In a Manifestation43 dated December 28, 2000 filed with this Court in the Gaminde case, Chairperson Demetriou stated that she
was vacating her office on February 2, 2001, as she believed any delay in choosing her successor might create a "constitutional
crisis" in view of the proximity of the May 2001 national elections. Commissioner Desamito chose to file a petition for
intervention44 in the Gaminde case but this Court denied the intervention. Thus, Commissioner Desamito also vacated his office
on February 2, 2001.

During an election year, Congress normally goes on voluntary recess between February and June considering that many of the
members of the House of Representatives and the Senate run for re-election. In 2001, the Eleventh Congress adjourned from
January 9, 2001 to June 3, 2001.45 Concededly, there was no more time for Benipayo, Borra and Tuason, who were originally
extended ad interim appointments only on March 22, 2001, to be confirmed by the Commission on Appointments before the May
14, 2001 elections.

If Benipayo, Borra and Tuason were not extended ad interim appointments to fill up the three vacancies in the COMELEC, there
would only have been one division functioning in the COMELEC instead of two during the May 2001 elections. Considering that
the Constitution requires that "all x x x election cases shall be heard and decided in division", 46 the remaining one division would
have been swamped with election cases. Moreover, since under the Constitution motions for reconsideration "shall be decided
by the Commission en banc", the mere absence of one of the four remaining members would have prevented a quorum, a less
than ideal situation considering that the Commissioners are expected to travel around the country before, during and after the
elections. There was a great probability that disruptions in the conduct of the May 2001 elections could occur because of the
three vacancies in the COMELEC. The successful conduct of the May 2001 national elections, right after the tumultuous EDSA
II and EDSA III events, was certainly essential in safeguarding and strengthening our democracy.

Evidently, the exercise by the President in the instant case of her constitutional power to make ad interim appointments
prevented the occurrence of the very evil sought to be avoided by the second paragraph of Section 16, Article VII of the
Constitution. This power to make ad interim appointments is lodged in the President to be exercised by her in her sound
judgment. Under the second paragraph of Section 16, Article VII of the Constitution, the President can choose either of two
modes in appointing officials who are subject to confirmation by the Commission on Appointments. First, while Congress is in
session, the President may nominate the prospective appointee, and pending consent of the Commission on Appointments, the
nominee cannot qualify and assume office. Second, during the recess of Congress, the President may extend an ad
interim appointment which allows the appointee to immediately qualify and assume office.

Whether the President chooses to nominate the prospective appointee or extend an ad interim appointment is a matter within
the prerogative of the President because the Constitution grants her that power. This Court cannot inquire into the propriety of
the choice made by the President in the exercise of her constitutional power, absent grave abuse of discretion amounting to lack
or excess of jurisdiction on her part, which has not been shown in the instant case.

The issuance by Presidents of ad interim appointments to the COMELEC is a long-standing practice. Former President Corazon
Aquino issued an ad interim appointment to Commissioner Alfredo E. Abueg.47 Former President Fidel V. Ramos extended ad
interim appointments to Commissioners Julio F. Desamito, Japal M. Guiani, Graduacion A. Reyes-Claravall and Manolo F.
Gorospe.48 Former President Joseph Estrada also extended ad interim appointments to Commissioners Abdul Gani M.
Marohombsar, Luzviminda Tancangco, Mehol K. Sadain and Ralph C. Lantion. 49

The President’s power to extend ad interim appointments may indeed briefly put the appointee at the mercy of both the
appointing and confirming powers. This situation, however, is only for a short period - from the time of issuance of the ad
interim appointment until the Commission on Appointments gives or withholds its consent. The Constitution itself sanctions this
situation, as a trade-off against the evil of disruptions in vital government services. This is also part of the check-and-balance
under the separation of powers, as a trade-off against the evil of granting the President absolute and sole power to appoint. The
Constitution has wisely subjected the President’s appointing power to the checking power of the legislature.

This situation, however, does not compromise the independence of the COMELEC as a constitutional body. The vacancies in
the COMELEC are precisely staggered to insure that the majority of its members hold confirmed appointments, and not one
President will appoint all the COMELEC members.50 In the instant case, the Commission on Appointments had long confirmed
four51 of the incumbent COMELEC members, comprising a majority, who could now be removed from office only by
impeachment. The special constitutional safeguards that insure the independence of the COMELEC remain in place. 52 The
COMELEC enjoys fiscal autonomy, appoints its own officials and employees, and promulgates its own rules on pleadings and
practice. Moreover, the salaries of COMELEC members cannot be decreased during their tenure.

In fine, we rule that the ad interim appointments extended by the President to Benipayo, Borra and Tuason, as COMELEC
Chairman and Commissioners, respectively, do not constitute temporary or acting appointments prohibited by Section 1 (2),
Article IX-C of the Constitution.
PoliRev Cases 1
Third Issue: The Constitutionality of Renewals of Appointments

Petitioner also agues that assuming the first ad interim appointments and the first assumption of office by Benipayo, Borra and
Tuason are constitutional, the renewal of the their ad interim appointments and their subsequent assumption of office to the
same positions violate the prohibition on reappointment under Section 1 (2), 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. X x x."
(Emphasis supplied)

Petitioner theorizes that once an ad interim appointee is by-passed by the Commission on Appointments, his ad interim
appointment can no longer be renewed because this will violate Section 1 (2), Article IX-C of the Constitution which prohibits
reappointments. Petitioner asserts that this is particularly true to permanent appointees who have assumed office, which is the
situation of Benipayo, Borra and Tuason if their ad interim appointments are deemed permanent in character.

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.

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. Inocentes53 why by-passed 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 interim appointment
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,
PoliRev Cases 1
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.

The framers of the Constitution made it quite clear that any person who has served any term of office as COMELEC member –
whether for a full term of seven years, a truncated term of five or three years, or even for an unexpired term of any length of time
– can no longer be reappointed to the COMELEC. Commissioner Foz succinctly explained this intent in this manner:

"MR. FOZ. But there is the argument made in the concurring opinion of Justice Angelo Bautista in the case of Visarra
vs. Miraflor, to the effect that the prohibition on reappointment applies only when the term or tenure is for seven years.
But in cases where the appointee serves only for less than seven years, he would be entitled to reappointment. Unless
we put the qualifying words "without reappointment" in the case of those appointed, then it is possible that an
interpretation could be made later on their case, they can still be reappointed to serve for a total of seven years.

Precisely, we are foreclosing that possibility by making it clear that even in the case of those first appointed under the
Constitution, no reappointment can be made."55 (Emphasis supplied)

In Visarra vs. Miraflor,56 Justice Angelo Bautista, in his concurring opinion, quoted Nacionalista vs. De Vera57 that a
"[r]eappointment is not prohibited when a Commissioner has held office only for, say, three or six years, provided his
term will not exceed nine years in all." This was the interpretation despite the express provision in the 1935 Constitution
that a COMELEC member "shall hold office for a term of nine years and may not be reappointed."

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 President’s power to make ad interim appointments.

In the great majority of cases, the Commission on Appointments usually fails to act, for lack of time, on the ad
interim  appointments first issued to appointees. If such ad interim appointments can no longer be renewed, the President will
certainly hesitate to make ad interim appointments because most of her appointees will effectively be disapproved by mere
inaction of the Commission on Appointments. This will nullify the constitutional power of the President to make ad
interim appointments, a power intended to avoid disruptions in vital government services. This Court cannot subscribe to a
proposition that will wreak havoc on vital government services.

The prohibition on reappointment is common to the three constitutional commissions. The framers of the present Constitution
prohibited reappointments for two reasons. The first is to prevent a second appointment for those who have been previously
appointed and confirmed even if they served for less than seven years. The second is to insure that the members of the three
constitutional commissions do not serve beyond the fixed term of seven years. As reported in the Journal of the Constitutional
Commission, Commissioner Vicente B. Foz, who sponsored58 the proposed articles on the three constitutional commissions,
outlined the four important features of the proposed articles, to wit:

"Mr. Foz stated that the Committee had introduced basic changes in the common provision affecting the three
Constitutional Commissions, and which are: 1) fiscal autonomy which provides (that) appropriations shall be
automatically and regularly released to the Commission in the same manner (as) provided for the Judiciary; 2) fixed
term of office without reappointment on a staggered basis to ensure continuity of functions and to minimize the
opportunity of the President to appoint all the members during his incumbency; 3) prohibition to decrease salaries of the
members of the Commissions during their term of office; and 4) appointments of members would not require
confirmation."59 (Emphasis supplied)

There were two important amendments subsequently made by the Constitutional Commission to these four features. First, as
discussed earlier, the framers of the Constitution decided to require confirmation by the Commission on Appointments of all
PoliRev Cases 1
appointments to the constitutional commissions. Second, the framers decided to strengthen further the prohibition on serving
beyond the fixed seven-year term, in the light of a former chair of the Commission on Audit remaining in office for 12 years
despite his fixed term of seven years. The following exchange in the deliberations of the Constitutional Commission is
instructive:

"MR. SUAREZ: These are only clarificatory questions, Madam President. May I call the sponsor’s attention, first of all, to
Section 2 (2) on the Civil Service Commission wherein it is stated: "In no case shall any Member be appointed in a
temporary or acting capacity." I detect in the Committee’s proposed resolutions a constitutional hangover, if I may use
the term, from the past administration. Am I correct in concluding that the reason the Committee introduced this
particular provision is to avoid an incident similar to the case of the Honorable Francisco Tantuico who was appointed in
an acting capacity as Chairman of the Commission on Audit for about 5 years from 1975 until 1980, and then in 1980,
was appointed as Chairman with a tenure of another 7 years. So, if we follow that appointment to (its) logical
conclusion, he occupied that position for about 12 years in violation of the Constitution?

MR. FOZ: It is only one of the considerations. Another is really to make sure that any member who is appointed to any
of the commissions does not serve beyond 7 years."60 (Emphasis supplied)

Commissioner Christian Monsod further clarified the prohibition on reappointment in this manner:

"MR. MONSOD. If the (Commissioner) will read the whole Article, she will notice that there is no reappointment of any
kind and, therefore as a whole there is no way that somebody can serve for more than seven years. The purpose of the
last sentence is to make sure that this does not happen by including in the appointment both temporary and acting
capacities."61 (Emphasis supplied)

Plainly, the prohibition on reappointment is intended to insure that there will be no reappointment of any kind. On the other hand,
the prohibition on temporary or acting appointments is intended to prevent any circumvention of the prohibition on reappointment
that may result in an appointee’s total term of office exceeding seven years. The evils sought to be avoided by the twin
prohibitions are very specific - reappointment of any kind and exceeding one’s term in office beyond the maximum period of
seven years.

Not contented with these ironclad twin prohibitions, the framers of the Constitution tightened even further the screws on those
who might wish to extend their terms of office. Thus, the word "designated" was inserted to plug any loophole that might be
exploited by violators of the Constitution, as shown in the following discussion in the Constitutional Commission:

"MR. DE LOS REYES: On line 32, between the words "appointed" and "in", I propose to insert the words OR
DESIGNATED so that the whole sentence will read: "In no case shall any Member be appointed OR DESIGNATED in a
temporary or acting capacity."

THE PRESIDING OFFICER (Mr. Trenas): What does the Committee say?

MR. FOZ: But it changes the meaning of this sentence. The sentence reads: "In no case shall any Member be
appointed in a temporary or acting capacity."

MR. DE LOS REYES: Mr. Presiding Officer, the reason for this amendment is that some lawyers make a distinction
between an appointment and a designation. The Gentleman will recall that in the case of Commissioner on Audit
Tantuico, I think his term exceeded the constitutional limit but the Minister of Justice opined that it did not because he
was only designated during the time that he acted as Commissioner on Audit. So, in order to erase that distinction
between appointment and designation, we should specifically place the word so that there will be no more ambiguity. "In
no case shall any Member be appointed OR DESIGNATED in a temporary or acting capacity."

MR. FOZ: The amendment is accepted, Mr. Presiding Officer.

MR. DE LOS REYES: Thank you.

THE PRESIDING OFFICER (Mr. Trenas): Is there any objection? (Silence) The Chair hears none; the amendment is
approved."62

The ad interim appointments and subsequent renewals of appointments of Benipayo, Borra and Tuason do not violate the
prohibition on reappointments because there were no previous appointments that were confirmed by the Commission on
Appointments. A reappointment presupposes a previous confirmed appointment. The same ad interim appointments and
renewals of appointments will also not breach the seven-year term limit because all the appointments and renewals of
appointments of Benipayo, Borra and Tuason are for a fixed term expiring on February 2, 2008.63 Any delay in their confirmation
will not extend the expiry date of their terms of office. Consequently, there is no danger whatsoever that the renewal of the ad
interim appointments of these three respondents will result in any of the evils intended to be exorcised by the twin prohibitions in
the Constitution. The continuing renewal of the ad interim appointment of these three respondents, for so long as their terms of
office expire on February 2, 2008, does not violate the prohibition on reappointments in Section 1 (2), Article IX-C of the
Constitution.

Fourth Issue: Respondent Benipayo’s Authority to Reassign Petitioner

Petitioner claims that Benipayo has no authority to remove her as Director IV of the EID and reassign her to the Law
Department. Petitioner further argues that only the COMELEC, acting as a collegial body, can authorize such reassignment.
PoliRev Cases 1
Moreover, petitioner maintains that a reassignment without her consent amounts to removal from office without due process and
therefore illegal.

Petitioner’s posturing will hold water if Benipayo does not possess any color of title to the office of Chairman of the COMELEC.
We have ruled, however, that Benipayo is the de jure COMELEC Chairman, and consequently he has full authority to exercise
all the powers of that office for so long as his ad interim appointment remains effective. Under Section 7 (4), Chapter 2, Subtitle
C, Book V of the Revised Administrative Code, the Chairman of the COMELEC is vested with the following power:

"Section 7. Chairman as Executive Officer; Powers and Duties. The Chairman, who shall be the Chief Executive Officer
of the Commission, shall:

xxx

(4) Make temporary assignments, rotate and transfer personnel in accordance with the provisions of the Civil Service
Law." (Emphasis supplied)

The Chairman, as the Chief Executive of the COMELEC, is expressly empowered on his own authority to transfer or reassign
COMELEC personnel in accordance with the Civil Service Law. In the exercise of this power, the Chairman is not required by
law to secure the approval of the COMELEC en banc.

Petitioner’s appointment papers dated February 2, 1999, February 15, 2000 and February 15, 2001, attached as Annexes "X",
"Y" and "Z" to her Petition, indisputably show that she held her Director IV position in the EID only in an acting or
temporary capacity.64 Petitioner is not a Career Executive Service (CES) officer, and neither does she hold Career Executive
Service Eligibility, which are necessary qualifications for holding the position of Director IV as prescribed in the Qualifications
Standards (Revised 1987) issued by the Civil Service Commission. 65 Obviously, petitioner does not enjoy security of tenure as
Director IV. In Secretary of Justice Serafin Cuevas vs. Atty. Josefina G. Bacal,66 this Court held that:

"As respondent does not have the rank appropriate for the position of Chief Public Attorney, her appointment to that
position cannot be considered permanent, and she can claim no security of tenure in respect of that position. As held
in Achacoso v. Macaraig:

‘It is settled that a permanent appointment can be issued only ‘to a person who meets all the requirements for
the position to which he is being appointed, including the appropriate eligibility prescribed.’ Achacoso did not.
At best, therefore, his appointment could be regarded only as temporary. And being so, it could be withdrawn at
will by the appointing authority and ‘at a moment’s notice’, conformably to established jurisprudence x x x.

The mere fact that a position belongs to the Career Service does not automatically confer security of tenure on
its occupant even if he does not possess the required qualifications. Such right will have to depend on the
nature of his 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 x x x.’"

Having been appointed merely in a temporary or acting capacity, and not possessed of the necessary qualifications to hold the
position of Director IV, petitioner has no legal basis in claiming that her reassignment was contrary to the Civil Service Law. This
time, the vigorous argument of petitioner that a temporary or acting appointment can be withdrawn or revoked at the pleasure of
the appointing power happens to apply squarely to her situation.

Still, petitioner assails her reassignment, carried out during the election period, as a prohibited act under Section 261 (h) of the
Omnibus Election Code, which provides as follows:

"Section 261. Prohibited Acts. The following shall be guilty of an election offense:

xxx

(h) Transfer of officers and employees in the civil service - Any public official who makes or causes any transfer or detail
whatever of any officer or employee in the civil service including public school teachers, within the election period
except upon prior approval of the Commission."

Petitioner claims that Benipayo failed to secure the approval of the COMELEC en banc to effect transfers or reassignments of
COMELEC personnel during the election period.67 Moreover, petitioner insists that the COMELEC en banc must concur to every
transfer or reassignment of COMELEC personnel during the election period.

Contrary to petitioner’s allegation, the COMELEC did in fact issue COMELEC Resolution No. 3300 dated November 6,
2000,68 exempting the COMELEC from Section 261 (h) of the Omnibus Election Code. The resolution states in part:

"WHEREAS, Sec. 56 and Sec. 261, paragraphs (g) and (h), of the Omnibus Election Code provides as follows:

xxx

Sec. 261. Prohibited Acts. The following shall be guilty of an election offense:

PoliRev Cases 1
xxx

(h) Transfer of officers and employees in the civil service – Any public official who makes or causes any
transfer or detail whatever of any officer or employee in the civil service including public school teachers, within
the election period except upon approval of the Commission.

WHEREAS, the aforequoted provisions are applicable to the national and local elections on May 14, 2001;

WHEREAS, there is an urgent need to appoint, transfer or reassign personnel of the Commission on Elections during
the prohibited period in order that it can carry out its constitutional duty to conduct free, orderly, honest, peaceful and
credible elections;

"NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred upon it by the Constitution, the
Omnibus Election Code and other election laws, as an exception to the foregoing prohibitions, has RESOLVED, as it is
hereby RESOLVED, to appoint, hire new employees or fill new positions and transfer or reassign its personnel, when
necessary in the effective performance of its mandated functions during the prohibited period, provided that the
changes in the assignment of its field personnel within the thirty-day period before election day shall be effected after
due notice and hearing." (Emphasis supplied)

The proviso in COMELEC Resolution No. 3300, requiring due notice and hearing before any transfer or reassignment can be
made within thirty days prior to election day, refers only to COMELEC field personnel and not to head office personnel like the
petitioner. Under the Revised Administrative Code, 69 the COMELEC Chairman is the sole officer specifically vested with the
power to transfer or reassign COMELEC personnel. The COMELEC Chairman will logically exercise the authority to transfer or
reassign COMELEC personnel pursuant to COMELEC Resolution No. 3300. The COMELEC en banc cannot arrogate unto itself
this power because that will mean amending the Revised Administrative Code, an act the COMELEC en banc cannot legally do.

COMELEC Resolution No. 3300 does not require that every transfer or reassignment of COMELEC personnel should carry the
concurrence of the COMELEC as a collegial body. Interpreting Resolution No. 3300 to require such concurrence will render the
resolution meaningless since the COMELEC en banc will have to approve every personnel transfer or reassignment, making the
resolution utterly useless. Resolution No. 3300 should be interpreted for what it is, an approval to effect transfers and
reassignments of personnel, without need of securing a second approval from the COMELEC en banc to actually implement
such transfer or reassignment.

The COMELEC Chairman is the official expressly authorized by law to transfer or reassign COMELEC personnel. The person
holding that office, in a de jure capacity, is Benipayo. The COMELEC en banc, in COMELEC Resolution No. 3300, approved the
transfer or reassignment of COMELEC personnel during the election period. Thus, Benipayo’s order reassigning petitioner from
the EID to the Law Department does not violate Section 261 (h) of the Omnibus Election Code. For the same reason,
Benipayo’s order designating Cinco Officer-in-Charge of the EID is legally unassailable.

Fifth Issue: Legality of Disbursements to Respondents

Based on the foregoing discussion, respondent Gideon C. De Guzman, Officer-in-Charge of the Finance Services Department of
the Commission on Elections, did not act in excess of jurisdiction in paying the salaries and other emoluments of Benipayo,
Borra, Tuason and Cinco.

WHEREFORE, the petition is dismissed for lack of merit. Costs against petitioner.

SO ORDERED.
PoliRev Cases 1
Republic of the Philippines
SUPREME COURT
Baguio City

EN BANC

G.R. No. 191002               April 20, 2010

ARTURO M. DE CASTRO, Petitioner,
vs.
JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL - ARROYO, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 191032

JAIME N. SORIANO, Petitioner,
vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 191057

PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), Petitioner,

vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.

x - - - - - - - - - - - - - - - - - - - - - - -x

A.M. No. 10-2-5-SC

IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THE CONSTITUTION TO APPOINTMENTS TO THE JUDICIARY,
ESTELITO P. MENDOZA, Petitioner,

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 191149

JOHN G. PERALTA, Petitioner,
vs.
JUDICIAL AND BAR COUNCIL (JBC). Respondent.
PETER IRVING CORVERA; CHRISTIAN ROBERT S. LIM; ALFONSO V. TAN, JR.; NATIONAL UNION OF PEOPLE’S
LAWYERS; MARLOU B. UBANO; INTEGRATED BAR OF THE PHILIPPINES-DAVAO DEL SUR CHAPTER, represented by
its Immediate Past President, ATTY. ISRAELITO P. TORREON, and the latter in his own personal capacity as a
MEMBER of the PHILIPPINE BAR; MITCHELL JOHN L. BOISER; BAGONG ALYANSANG BAYAN (BAYAN) CHAIRMAN
DR. CAROLINA P. ARAULLO; BAYAN SECRETARY GENERAL RENATO M. REYES, JR.; CONFEDERATION FOR UNITY,
RECOGNITION AND ADVANCE-MENT OF GOVERNMENT EMPLOYEES (COURAGE) CHAIRMAN FERDINAND GAITE;
KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY) SECRETARY GENERAL GLORIA ARELLANO; ALYANSA NG
NAGKAKAISANG KABATAAN NG SAMBAYANAN PARA SA KAUNLARAN (ANAKBAYAN) CHAIRMAN KEN LEONARD
RAMOS; TAYO ANG PAG-ASA CONVENOR ALVIN PETERS; LEAGUE OF FILIPINO STUDENTS (LFS) CHAIRMAN
JAMES MARK TERRY LACUANAN RIDON; NATIONAL UNION OF STUDENTS OF THE PHILIPPINES (NUSP) CHAIRMAN
EINSTEIN RECEDES; COLLEGE EDITORS GUILD OF THE PHILIPPINES (CEGP) CHAIRMAN VIJAE ALQUISOLA; and
STUDENT CHRISTIAN MOVEMENT OF THE PHILIPPINES (SCMP) CHAIRMAN MA. CRISTINA ANGELA GUEVARRA;
WALDEN F. BELLO and LORETTA ANN P. ROSALES; WOMEN TRIAL LAWYERS ORGANIZATION OF THE PHILIPPINES,
represented by YOLANDA QUISUMBING-JAVELLANA; BELLEZA ALOJADO DEMAISIP; TERESITA GANDIONCO-
OLEDAN; MA. VERENA KASILAG-VILLANUEVA; MARILYN STA. ROMANA; LEONILA DE JESUS; and GUINEVERE DE
LEON; AQUILINO Q. PIMENTEL, JR.; Intervenors.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 191342

ATTY. AMADOR Z. TOLENTINO, JR., (IBP Governor-Southern Luzon), and ATTY. ROLAND B. INTING (IBP Governor-
Eastern Visayas), Petitioners,
vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 191420

PoliRev Cases 1
PHILIPPINE BAR ASSOCIATION, INC., Petitioner,
vs.
JUDICIAL AND BAR COUNCIL and HER EXCELLENCY GLORIA MACAPAGAL-ARROYO, Respondents.

RESOLUTION

BERSAMIN, J.:

On March 17, 2010, the Court promulgated its decision, holding:

WHEREFORE, the Court:

1. Dismisses the petitions for certiorari and mandamus in G.R. No. 191002 and G.R. No. 191149, and the petition for
mandamus in G.R. No. 191057 for being premature;

2. Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No. 191342 for lack of merit; and

3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the Judicial and Bar Council:

(a) To resume its proceedings for the nomination of candidates to fill the vacancy to be created by the
compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010;

(b) To prepare the short list of nominees for the position of Chief Justice;

(c) To submit to the incumbent President the short list of nominees for the position of Chief Justice on or before
May 17, 2010; and

(d) To continue its proceedings for the nomination of candidates to fill other vacancies in the Judiciary and
submit to the President the short list of nominees corresponding thereto in accordance with this decision.

SO ORDERED.

Motions for Reconsideration

Petitioners Jaime N. Soriano (G.R. No. 191032), Amador Z. Tolentino and Roland B. Inting (G.R. No. 191342), and Philippine
Bar Association (G.R. No. 191420), as well as intervenors Integrated Bar of the Philippines-Davao del Sur (IBP-Davao del Sur,
et al.); Christian Robert S. Lim; Peter Irving Corvera; Bagong Alyansang Bayan and others (BAYAN, et al.); Alfonso V. Tan, Jr.;
the Women Trial Lawyers Organization of the Philippines (WTLOP); Marlou B. Ubano; Mitchell John L. Boiser; and Walden F.
Bello and Loretta Ann P. Rosales (Bello, et al.), filed their respective motions for reconsideration. Also filing a motion for
reconsideration was Senator Aquilino Q. Pimentel, Jr., whose belated intervention was allowed.

We summarize the arguments and submissions of the various motions for reconsideration, in the aforegiven order:

Soriano

1. The Court has not squarely ruled upon or addressed the issue of whether or not the power to designate the Chief
Justice belonged to the Supreme Court en banc.

2. The Mendoza petition should have been dismissed, because it sought a mere declaratory judgment and did not
involve a justiciable controversy.

3. All Justices of the Court should participate in the next deliberations. The mere fact that the Chief Justice sits as ex
officio head of the JBC should not prevail over the more compelling state interest for him to participate as a Member of
the Court.

Tolentino and Inting

1. A plain reading of Section 15, Article VII does not lead to an interpretation that exempts judicial appointments from
the express ban on midnight appointments.

2. In excluding the Judiciary from the ban, the Court has made distinctions and has created exemptions when none
exists.

3. The ban on midnight appointments is placed in Article VII, not in Article VIII, because it limits an executive, not a
judicial, power.

4. Resort to the deliberations of the Constitutional Commission is superfluous, and is powerless to vary the terms of the
clear prohibition.
PoliRev Cases 1
5. The Court has given too much credit to the position taken by Justice Regalado. Thereby, the Court has raised the
Constitution to the level of a venerated text whose intent can only be divined by its framers as to be outside the realm of
understanding by the sovereign people that ratified it.

6. Valenzuela should not be reversed.

7. The petitioners, as taxpayers and lawyers, have the clear legal standing to question the illegal composition of the
JBC.

Philippine Bar Association

1. The Court’s strained interpretation of the Constitution violates the basic principle that the Court should not formulate a
rule of constitutional law broader than what is required by the precise facts of the case.

2. Considering that Section 15, Article VII is clear and straightforward, the only duty of the Court is to apply it. The
provision expressly and clearly provides a general limitation on the appointing power of the President in prohibiting the
appointment of any person to any position in the Government without any qualification and distinction.

3. The Court gravely erred in unilaterally ignoring the constitutional safeguard against midnight appointments.

4. The Constitution has installed two constitutional safeguards:- the prohibition against midnight appointments, and the
creation of the JBC. It is not within the authority of the Court to prefer one over the other, for the Court’s duty is to apply
the safeguards as they are, not as the Court likes them to be.

5. The Court has erred in failing to apply the basic principles of statutory construction in interpreting the Constitution.

6. The Court has erred in relying heavily on the title, chapter or section headings, despite precedents on statutory
construction holding that such headings carried very little weight.

7. The Constitution has provided a general rule on midnight appointments, and the only exception is that on temporary
appointments to executive positions.

8. The Court has erred in directing the JBC to resume the proceedings for the nomination of the candidates to fill the
vacancy to be created by the compulsory retirement of Chief Justice Puno with a view to submitting the list of nominees
for Chief Justice to President Arroyo on or before May 17, 2010. The Constitution grants the Court only the power of
supervision over the JBC; hence, the Court cannot tell the JBC what to do, how to do it, or when to do it, especially in
the absence of a real and justiciable case assailing any specific action or inaction of the JBC.

9. The Court has engaged in rendering an advisory opinion and has indulged in speculations.

10. The constitutional ban on appointments being already in effect, the Court’s directing the JBC to comply with the
decision constitutes a culpable violation of the Constitution and the commission of an election offense.

11. The Court cannot reverse on the basis of a secondary authority a doctrine unanimously formulated by the Court en
banc.

12. The practice has been for the most senior Justice to act as Chief Justice whenever the incumbent is indisposed.
Thus, the appointment of the successor Chief Justice is not urgently necessary.

13. The principal purpose for the ban on midnight appointments is to arrest any attempt to prolong the outgoing
President’s powers by means of proxies. The attempt of the incumbent President to appoint the next Chief Justice is
undeniably intended to perpetuate her power beyond her term of office.

IBP-Davao del Sur, et al.

1. Its language being unambiguous, Section 15, Article VII of the Constitution applies to appointments to the Judiciary.
Hence, no cogent reason exists to warrant the reversal of the Valenzuela pronouncement.

2. Section 16, Article VII of the Constitution provides for presidential appointments to the Constitutional Commissions
and the JBC with the consent of the Commission on Appointments. Its phrase "other officers whose appointments are
vested in him in this Constitution" is enough proof that the limitation on the appointing power of the President extends to
appointments to the Judiciary. Thus, Section 14, Section 15, and Section 16 of Article VII apply to all presidential
appointments in the Executive and Judicial Branches of the Government.

3. There is no evidence that the framers of the Constitution abhorred the idea of an Acting Chief Justice in all cases.

Lim

1. There is no justiciable controversy that warrants the Court’s exercise of judicial review.
PoliRev Cases 1
2. The election ban under Section 15, Article VII applies to appointments to fill a vacancy in the Court and to other
appointments to the Judiciary.

3. The creation of the JBC does not justify the removal of the safeguard under Section 15 of Article VII against midnight
appointments in the Judiciary.

Corvera

1. The Court’s exclusion of appointments to the Judiciary from the Constitutional ban on midnight appointments is
based on an interpretation beyond the plain and unequivocal language of the Constitution.

2. The intent of the ban on midnight appointments is to cover appointments in both the Executive and Judicial
Departments. The application of the principle of verba legis (ordinary meaning) would have obviated dwelling on the
organization and arrangement of the provisions of the Constitution. If there is any ambiguity in Section 15, Article VII,
the intent behind the provision, which is to prevent political partisanship in all branches of the Government, should have
controlled.

3. A plain reading is preferred to a contorted and strained interpretation based on compartmentalization and physical
arrangement, especially considering that the Constitution must be interpreted as a whole.

4. Resort to the deliberations or to the personal interpretation of the framers of the Constitution should yield to the plain
and unequivocal language of the Constitution.

5. There is no sufficient reason for reversing Valenzuela, a ruling that is reasonable and in accord with the Constitution.

BAYAN, et al.

1. The Court erred in granting the petition in A.M. No. 10-2-5-SC, because the petition did not present a justiciable
controversy. The issues it raised were not yet ripe for adjudication, considering that the office of the Chief Justice was
not yet vacant and that the JBC itself has yet to decide whether or not to submit a list of nominees to the President.

2. The collective wisdom of Valenzuela Court is more important and compelling than the opinion of Justice Regalado.

3. In ruling that Section 15, Article VII is in conflict with Section 4(1), Article VIII, the Court has violated the principle of ut
magis valeat quam pereat (which mandates that the Constitution should be interpreted as a whole, such that any
conflicting provisions are to be harmonized as to fully give effect to all). There is no conflict between the provisions; they
complement each other.

4. The form and structure of the Constitution’s titles, chapters, sections, and draftsmanship carry little weight in statutory
construction. The clear and plain language of Section 15, Article VII precludes interpretation.

Tan, Jr.

1. The factual antecedents do not present an actual case or controversy. The clash of legal rights and interests in the
present case are merely anticipated. Even if it is anticipated with certainty, no actual vacancy in the position of the Chief
Justice has yet occurred.

2. The ruling that Section 15, Article VII does not apply to a vacancy in the Court and the Judiciary runs in conflict with
long standing principles and doctrines of statutory construction. The provision admits only one exception, temporary
appointments in the Executive Department. Thus, the Court should not distinguish, because the law itself makes no
distinction.

3. Valenzuela was erroneously reversed. The framers of the Constitution clearly intended the ban on midnight
appointments to cover the members of the Judiciary. Hence, giving more weight to the opinion of Justice Regalado to
reverse the en banc decision in Valenzuela was unwarranted.

4. Section 15, Article VII is not incompatible with Section 4(1), Article VIII. The 90-day mandate to fill any vacancy lasts
until August 15, 2010, or a month and a half after the end of the ban. The next President has roughly the same time of
45 days as the incumbent President (i.e., 44 days) within which to scrutinize and study the qualifications of the next
Chief Justice. Thus, the JBC has more than enough opportunity to examine the nominees without haste and political
uncertainty.1avvphi1

5. When the constitutional ban is in place, the 90-day period under Section 4(1), Article VIII is suspended.

6. There is no basis to direct the JBC to submit the list of nominees on or before May 17, 2010. The directive to the JBC
sanctions a culpable violation of the Constitution and constitutes an election offense.

7. There is no pressing necessity for the appointment of a Chief Justice, because the Court sits en banc, even when it
acts as the sole judge of all contests relative to the election, returns and qualifications of the President and Vice-
President. Fourteen other Members of the Court can validly comprise the Presidential Electoral Tribunal.

WTLOP
PoliRev Cases 1
1. The Court exceeded its jurisdiction in ordering the JBC to submit the list of nominees for Chief Justice to the
President on or before May 17, 2010, and to continue its proceedings for the nomination of the candidates, because it
granted a relief not prayed for; imposed on the JBC a deadline not provided by law or the Constitution; exercised control
instead of mere supervision over the JBC; and lacked sufficient votes to reverse Valenzuela.

2. In interpreting Section 15, Article VII, the Court has ignored the basic principle of statutory construction to the effect
that the literal meaning of the law must be applied when it is clear and unambiguous; and that we should not distinguish
where the law does not distinguish.

3. There is no urgency to appoint the next Chief Justice, considering that the Judiciary Act of 1948 already provides that
the power and duties of the office devolve on the most senior Associate Justice in case of a vacancy in the office of the
Chief Justice.

Ubano

1. The language of Section 15, Article VII, being clear and unequivocal, needs no interpretation

2. The Constitution must be construed in its entirety, not by resort to the organization and arrangement of its provisions.

3. The opinion of Justice Regalado is irrelevant, because Section 15, Article VII and the pertinent records of the
Constitutional Commission are clear and unambiguous.

4. The Court has erred in ordering the JBC to submit the list of nominees to the President by May 17, 2010 at the latest,
because no specific law requires the JBC to submit the list of nominees even before the vacancy has occurred.

Boiser

1. Under Section 15, Article VII, the only exemption from the ban on midnight appointments is the temporary
appointment to an executive position. The limitation is in keeping with the clear intent of the framers of the Constitution
to place a restriction on the power of the outgoing Chief Executive to make appointments.

2. To exempt the appointment of the next Chief Justice from the ban on midnight appointments makes the appointee
beholden to the outgoing Chief Executive, and compromises the independence of the Chief Justice by having the
outgoing President be continually influential.

3. The Court’s reversal of Valenzuela without stating the sufficient reason violates the principle of stare decisis.

Bello, et al.

1. Section 15, Article VII does not distinguish as to the type of appointments an outgoing President is prohibited from
making within the prescribed period. Plain textual reading and the records of the Constitutional Commission support the
view that the ban on midnight appointments extends to judicial appointments.

2. Supervision of the JBC by the Court involves oversight. The subordinate subject to oversight must first act not in
accord with prescribed rules before the act can be redone to conform to the prescribed rules.

3. The Court erred in granting the petition in A.M. No. 10-2-5-SC, because the petition did not present a justiciable
controversy.

Pimentel

1. Any constitutional interpretative changes must be reasonable, rational, and conformable to the general intent of the
Constitution as a limitation to the powers of Government and as a bastion for the protection of the rights of the people.
Thus, in harmonizing seemingly conflicting provisions of the Constitution, the interpretation should always be one that
protects the citizenry from an ever expanding grant of authority to its representatives.

2. The decision expands the constitutional powers of the President in a manner totally repugnant to republican
constitutional democracy, and is tantamount to a judicial amendment of the Constitution without proper authority.

Comments

The Office of the Solicitor General (OSG) and the JBC separately represent in their respective comments, thus:

OSG

1. The JBC may be compelled to submit to the President a short list of its nominees for the position of Chief Justice.

2. The incumbent President has the power to appoint the next Chief Justice.

3. Section 15, Article VII does not apply to the Judiciary.

PoliRev Cases 1
4. The principles of constitutional construction favor the exemption of the Judiciary from the ban on midnight
appointments.1awph!1

5. The Court has the duty to consider and resolve all issues raised by the parties as well as other related matters.

JBC

1. The consolidated petitions should have been dismissed for prematurity, because the JBC has not yet decided at the
time the petitions were filed whether the incumbent President has the power to appoint the new Chief Justice, and
because the JBC, having yet to interview the candidates, has not submitted a short list to the President.

2. The statement in the decision that there is a doubt on whether a JBC short list is necessary for the President to
appoint a Chief Justice should be struck down as bereft of constitutional and legal basis. The statement undermines the
independence of the JBC.

3. The JBC will abide by the final decision of the Court, but in accord with its constitutional mandate and its
implementing rules and regulations.

For his part, petitioner Estelito P. Mendoza (A.M. No. 10-2-5-SC) submits his comment even if the OSG and the JBC were the
only ones the Court has required to do so. He states that the motions for reconsideration were directed at the administrative
matter he initiated and which the Court resolved. His comment asserts:

1. The grounds of the motions for reconsideration were already resolved by the decision and the separate opinion.

2. The administrative matter he brought invoked the Court’s power of supervision over the JBC as provided by Section
8(1), Article VIII of the Constitution, as distinguished from the Court’s adjudicatory power under Section 1, Article VIII. In
the former, the requisites for judicial review are not required, which was why Valenzuela was docketed as an
administrative matter. Considering that the JBC itself has yet to take a position on when to submit the short list to the
proper appointing authority, it has effectively solicited the exercise by the Court of its power of supervision over the JBC.

3. To apply Section 15, Article VII to Section 4(1) and Section 9, Article VIII is to amend the Constitution.

4. The portions of the deliberations of the Constitutional Commission quoted in the dissent of Justice Carpio Morales, as
well as in some of the motions for reconsideration do not refer to either Section 15, Article VII or Section 4(1), Article
VIII, but to Section 13, Article VII (on nepotism).

Ruling

We deny the motions for reconsideration for lack of merit, for all the matters being thereby raised and argued, not being new,
have all been resolved by the decision of March 17, 2010.

Nonetheless, the Court opts to dwell on some matters only for the purpose of clarification and emphasis.

First: Most of the movants contend that the principle of stare decisis is controlling, and accordingly insist that the Court has erred
in disobeying or abandoning Valenzuela. 1

The contention has no basis.

Stare decisis derives its name from the Latin maxim stare decisis et non quieta movere, i.e., to adhere to precedent and not to
unsettle things that are settled. It simply means that a principle underlying the decision in one case is deemed of imperative
authority, controlling the decisions of like cases in the same court and in lower courts within the same jurisdiction, unless and
until the decision in question is reversed or overruled by a court of competent authority. The decisions relied upon as precedents
are commonly those of appellate courts, because the decisions of the trial courts may be appealed to higher courts and for that
reason are probably not the best evidence of the rules of law laid down. 2

Judicial decisions assume the same authority as a statute itself and, until authoritatively abandoned, necessarily become, to the
extent that they are applicable, the criteria that must control the actuations, not only of those called upon to abide by them, but
also of those duty-bound to enforce obedience to them.3 In a hierarchical judicial system like ours, the decisions of the higher
courts bind the lower courts, but the courts of co-ordinate authority do not bind each other. The one highest court does not bind
itself, being invested with the innate authority to rule according to its best lights. 4

The Court, as the highest court of the land, may be guided but is not controlled by precedent. Thus, the Court, especially with a
new membership, is not obliged to follow blindly a particular decision that it determines, after re-examination, to call for a
rectification.5 The adherence to precedents is strict and rigid in a common-law setting like the United Kingdom, where judges
make law as binding as an Act of Parliament.6 But ours is not a common-law system; hence, judicial precedents are not always
strictly and rigidly followed. A judicial pronouncement in an earlier decision may be followed as a precedent in a subsequent
case only when its reasoning and justification are relevant, and the court in the latter case accepts such reasoning and
justification to be applicable to the case. The application of the precedent is for the sake of convenience and stability.

For the intervenors to insist that Valenzuela ought not to be disobeyed, or abandoned, or reversed, and that its wisdom should
guide, if not control, the Court in this case is, therefore, devoid of rationality and foundation. They seem to conveniently forget
PoliRev Cases 1
that the Constitution itself recognizes the innate authority of the Court en banc to modify or reverse a doctrine or principle of law
laid down in any decision rendered en banc or in division. 7

Second: Some intervenors are grossly misleading the public by their insistence that the Constitutional Commission extended to
the Judiciary the ban on presidential appointments during the period stated in Section 15, Article VII.

The deliberations that the dissent of Justice Carpio Morales quoted from the records of the Constitutional Commission did not
concern either Section 15, Article VII or Section 4(1), Article VIII, but only Section 13, Article VII, a provision on nepotism. The
records of the Constitutional Commission show that Commissioner Hilario G. Davide, Jr. had proposed to include judges and
justices related to the President within the fourth civil degree of consanguinity or affinity among the persons whom the President
might not appoint during his or her tenure. In the end, however, Commissioner Davide, Jr. withdrew the proposal to include the
Judiciary in Section 13, Article VII "(t)o avoid any further complication," 8 such that the final version of the second paragraph of
Section 13, Article VII even completely omits any reference to the Judiciary, to wit:

Section 13. xxx

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.

Last: The movants take the majority to task for holding that Section 15, Article VII does not apply to appointments in the
Judiciary. They aver that the Court either ignored or refused to apply many principles of statutory construction.

The movants gravely err in their posture, and are themselves apparently contravening their avowed reliance on the principles of
statutory construction.

For one, the movants, disregarding the absence from Section 15, Article VII of the express extension of the ban on
appointments to the Judiciary, insist that the ban applied to the Judiciary under the principle of verba legis. That is self-
contradiction at its worst.

Another instance is the movants’ unhesitating willingness to read into Section 4(1) and Section 9, both of Article VIII, the express
applicability of the ban under Section 15, Article VII during the period provided therein, despite the silence of said provisions
thereon. Yet, construction cannot supply the omission, for doing so would generally constitute an encroachment upon the field of
the Constitutional Commission. Rather, Section 4(1) and Section 9 should be left as they are, given that their meaning is clear
and explicit, and no words can be interpolated in them. 9 Interpolation of words is unnecessary, because the law is more than
likely to fail to express the legislative intent with the interpolation. In other words, the addition of new words may alter the thought
intended to be conveyed. And, even where the meaning of the law is clear and sensible, either with or without the omitted word
or words, interpolation is improper, because the primary source of the legislative intent is in the language of the law itself. 10

Thus, the decision of March 17, 2010 has fittingly observed:

Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of Members of the
Supreme Court, they could have explicitly done so. They could not have ignored the meticulous ordering of the provisions. They
would have easily and surely written the prohibition made explicit in Section 15, Article VII as being equally applicable to the
appointment of Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII. That such
specification was not done only reveals that the prohibition against the President or Acting President making appointments
within two months before the next presidential elections and up to the end of the President’s or Acting President’s term does not
refer to the Members of the Supreme Court.

We cannot permit the meaning of the Constitution to be stretched to any unintended point in order to suit the purposes of any
quarter.

Final Word

It has been insinuated as part of the polemics attendant to the controversy we are resolving that because all the Members of the
present Court were appointed by the incumbent President, a majority of them are now granting to her the authority to appoint the
successor of the retiring Chief Justice.

The insinuation is misguided and utterly unfair.

The Members of the Court vote on the sole basis of their conscience and the merits of the issues. Any claim to the contrary
proceeds from malice and condescension. Neither the outgoing President nor the present Members of the Court had arranged
the current situation to happen and to evolve as it has. None of the Members of the Court could have prevented the Members
composing the Court when she assumed the Presidency about a decade ago from retiring during her prolonged term and
tenure, for their retirements were mandatory. Yet, she is now left with an imperative duty under the Constitution to fill up the
vacancies created by such inexorable retirements within 90 days from their occurrence. Her official duty she must comply with.
So must we ours who are tasked by the Constitution to settle the controversy.

ACCORDINGLY, the motions for reconsideration are denied with finality.

SO ORDERED.
PoliRev Cases 1
PoliRev Cases 1
Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 110544 October 17, 1995

REYNALDO V. TUANDA, Mayor of the Municipality of Jimalalud, Negros Oriental, HERMINIGILDO FABURADA, (former
Vice-Mayor), SANTOS A. VILLANUEVA, Incumbent Member of the Sangguniang Bayan, MANUEL LIM, NICANOR R.
AGOSTO, ERENIETA K. MENDOZA MAXIMINO A. VIERNES, HACUBINA V. SERILLO, ILUMINADO D. ESTRELLANES,
and FORMER MEMBERS OF THE SANGGUNIANG BAYAN OF JIMALALUD, NEGROS ORIENTAL, petitioners,
vs.
THE HONORABLE SANDIGANBAYAN, (THIRD DIVISION), BARTOLOME BINAOHAN and DELIA
ESTRELLANES, respondents.

KAPUNAN, J.:

Petitioners institute this special civil action for certiorari and prohibition under Rule 65 of the Revised Rules of Court to set aside
the resolution of the Sandiganbayan dated 17 February 1992 and its orders dated 19 August 1992 and 13 May 1993 in Criminal
Case No. 16936 entitled "People of the Philippines versus Reynaldo Tuanda, et al." denying petitioners' motion for suspension
of their arraignment.

The present controversy arose from the following antecedents:

On 9 February 1989, private respondents Delia Estrellanes and Bartolome Binaohan were designated as industrial labor
sectoral representative and agricultural labor sectoral representative respectively, for the Sangguniang Bayan of Jimalalud,
Province of Negros Oriental by then Secretary Luis T. Santos of the Department of Local Government. Private respondents
Binaohan and Estrellanes took their oath of office on 16 February 1989 and 17 February 1989, respectively.

Subsequently, petitioners filed an undated petition with the Office of the President for review and recall of said designations. The
latter, however, in a letter dated 20 March 1989, denied the petition and enjoined Mayor Reynaldo Tuanda to recognize private
respondents as sectoral representatives.

On 4 May 1990, private respondents filed a petition for mandamus with the Regional Trial Court of Negros Oriental, Branch 35,
docketed as Special Civil Action No. 9661, for recognition as members of the Sangguniang Bayan. It was dismissed on 23 July
1991.

Thereafter, on 20 June 1991, petitioners filed an action with the Regional Trial Court of Dumaguete City to declare null and void
the designations of private respondents as sectoral representatives, docketed as Civil Case No. 9955 entitled "Reynaldo
Tuanda, et al. versus Secretary of the Department of Local Government, et al."

On 21 July 1991, an information was filed before the Sandiganbayan, docketed as Criminal Case No. 16936 entitled "People of
the Philippines versus Reynaldo Tuanda, et al." charging petitioners thus:

INFORMATION

The undersigned Special Prosecution Officer of the Special Prosecutor, hereby accuses REYNALDO V.
TUANDA, HERMENEGILDO G. FABURADA, MANUEL LIM, NICANOR P. AGOSTO, ERENIETA K.
MENDOZA, MAXIMO VIERNES, HACUBINA V. SERILLO, and SANTOS A. VILLANUEVA of Violation of
Section 3(e) of R.A. No. 3019, as amended, committed as follows:

That during the period from February 1989 to February 1991 and subsequent thereto, in the
Municipality of Jimalalud, Negros Oriental, and within the jurisdiction of this Honorable Court,
accused, all public officers, Mayor REYNALDO V. TUANDA, Vice-Mayor HERMENEGILDO
G. FABURADA, Sangguniang Members MANUEL LIM, NICANOR P. AGOSTO, ERENIETA
K. MENDOZA, MAXIMO A. VIERNES, HACUBINA V. SERILLO, ILUMINADO D.
ESTRELLANES and SANTOS A. VILLANUEVA while in the performance of their official
functions and taking advantage of their public positions, with evident bad faith, manifest
partiality, and conspiring and confederating with each other did, then and there, wilfully and
unlawfully cause undue injury to Sectoral Members Bartolome M. Binaohan and Delia T.
Estrellanes by refusing to pay despite demand the amount of NINETY FIVE THOUSAND
THREE HUNDRED FIFTY PESOS (P95,350.00) and ONE HUNDRED EIGHT THOUSAND
NINE HUNDRED PESOS (P108,900.00) representing respectively their per diems, salaries
and other privileges and benefits, and such undue injury continuing to the present to the
prejudice and damage of Bartolome Binaohan and Delia Estrellanes.

CONTRARY TO LAW. 1
PoliRev Cases 1
On 9 September 1991, petitioners filed a motion with the Sandiganbayan for suspension of the proceedings in Criminal Case
No. 16936 on the ground that a prejudicial question exists in Civil Case No. 9955 pending before the Regional Trial Court of
Dumaguete City.2

On 16 January 1992, the Regional Trial Court rendered a decision declaring null and void ab initio the designations issued by
the Department of Local Government to the private respondents as sectoral representatives for having been done in violation of
Section 146 (2) of B.P. Blg. 337, otherwise known as the Local Government Code. 3

The trial court expounded thus:

The Supreme Court in the case of Johnny D. Supangan Jr. v. Luis T. Santos, et al., G.R. No. 84663, along with
7 companion cases of similar import, (G.R. Nos. 05012, 87601, 87602, 87792, 87935, 88072, and 90205) all
promulgated on August 24, 1990, ruled that:

B.P. Blg. 337 explicitly required that before the President (or the Secretary of the Department
of Local Government) may appoint members of the local legislative bodies to represent the
Industrial and Agricultural Labor Sectors, there must be a determination to be made by the
Sanggunian itself that the said sectors are of sufficient number in the city or municipality to
warrant representation after consultation with associations and persons belonging to the
sector concerned.

The Supreme Court further ruled —

For that matter, the Implementing Rules and Regulations of the Local Government Code even
prescribe the time and manner by which such determination is to be conducted by the
Sanggunian.

Consequently, in cases where the Sanggunian concerned has not yet determined that the
Industrial and Agricultural Labor Sectors in their particular city or municipality are of sufficient
number to warrant representation, there will absolutely be no basis for the
designation/appointments.

In the process of such inquiry as to the sufficiency in number of the sector concerned to warrant representation,
the Sanggunian is enjoined by law (B.P. Blg. 337) to consult with associations and persons belonging to the
sector concerned. Consultation with the sector concerned is made a pre-requisite. This is so considering that
those who belong to the said sector are the ones primarily interested in being represented in the Sanggunian.
In the same aforecited case, the Supreme Court considers such prior determination by the Sanggunian itself
(not by any other person or body) as a condition sine qua non to a valid appointment or designation.

Since in the present case, there was total absence of the required prior determination by the Sangguniang
Bayan of Jimalalud, this Court cannot help but declare the designations of private defendants as sectoral
representatives null and void.

This verdict is not without precedence. In several similar cases, the Supreme Court invariably nullified the
designations where the requirements of Sec. 146 (2), B.P. Blg. 337 were not complied with. Just to cite one
case, the Supreme Court ruled:

There is no certification from the Sangguniang Bayan of Valenzuela that the sectors
concerned are of sufficient number to warrant representation and there was no consultation
whatsoever with the associations and persons belonging to the Industrial and Agricultural
Labor Sectors. Therefore, the appointment of private respondents Romeo F. Bularan and
Rafael Cortez are null and void (Romeo Llanado, et al. v. Hon. Luis Santos, et al., G.R. No.
86394, August 24, 1990).4

Private respondents appealed the aforestated decision to the Court of Appeals, docketed as CA-G.R. CV No. 36769, where the
same is currently pending resolution.

Meanwhile, on 17 February 1992, respondent Sandiganbayan issued a resolution denying the motion for suspension of
proceedings filed by petitioners. Said respondent Sandiganbayan:

Despite the pendency of Civil Case No. 9955 of the Regional Trial Court of Negros Oriental, it appears,
nevertheless, that the private complainants have been rendering services on the basis of their respective
appointments as sectoral members of the Sangguniang Bayan of the Municipality of Jimalalud, Negros
Oriental; and that their said appointments enjoy the presumption of regularity. Having rendered such services,
the private complainants are entitled to the salaries attached to their office. Even assuming arguendo  that the
said Regional Trial Court shall later decide that the said appointments of the private complainants are null and
void, still the private complainants are entitled to their salaries and compensation for service they have actually
rendered, for the reason that before such judicial declaration of nullity, the private complainants are considered
at least de facto  public officers acting as such on the basis of apparently valid appointments issued by
competent authorities. In other words, regardless of the decision that may be rendered in Civil Case
No. 9955, the private complainants are entitled to their withheld salaries for the services they have actually
rendered as sectoral representatives of the said Sangguniang Bayan. Hence, the decision that may be
rendered by the Regional Trial Court in Civil Case No. 9955 would not be determinative of the innocence or
guilt of the accused.
PoliRev Cases 1
WHEREFORE, the subject Petition for the Suspension of Proceedings in Virtue of Prejudicial Question filed by
the accused through counsel, is hereby DENIED for lack of merit.

SO ORDERED.5

Petitioners filed a motion for reconsideration of the aforementioned resolution in view of the decision promulgated by the trial
court nullifying the appointments of private respondents but it was, likewise, denied in an order issued by respondent
Sandiganbayan on 19 August 1992 on the justification that the grounds stated in the said motion were a mere rehash of
petitioners' original motion to hold the case in abeyance.6 The dispositive portion of its order reads as follows:

WHEREFORE, in view of the foregoing, the arraignment of the accused which was scheduled today is
cancelled. Mayor Reynaldo Tuanda, Hermenegildo Faburada, Nicanor P. Agosto, Erenieta K. Mendoza,
Hacubina V. Serillo and Iluminado Estrellanes are, however, hereby ordered to show cause in writing within ten
(10) days from service hereof why they should not be cited for contempt of court for their failure to appear in
court today for arraignment.

In case of an adverse resolution on the motion to quash which is to be filed by the counsel for the defense, set
this case for arraignment, pre-trial and trial on January 4 & 5, 1993, on all dates the trial to start at 8:30 o'clock
in the morning.

SO ORDERED.7

On 19 February 1993, respondent Sandiganbayan issued an order holding consideration of all incidents pending the issuance of
an extended resolution.8

No such resolution, however, was issued and in its assailed order dated 13 May 1992, respondent Sandiganbayan set the
arraignment of petitioners on 30 June 1993. The dispositive portion of the order reads:

WHEREFORE, considering the absence of the accused from the scheduled hearing today which We deem to
be excusable, reset this case for arraignment on June 30, 1993 and for trial on the merits on June 30 and July
1 and 2, 1993, on all dates the trial to start at 8:30 o'clock in the morning.

Give proper notice to the accused and principal counsel, Atty. Alfonso Briones. Considering that the accused
come all the way from Himalalud, Negros Oriental, no postponement will be allowed.

SO ORDERED.9

Hence, this special civil action for certiorari and prohibition where petitioners attribute to respondent Sandiganbayan the
following errors:

A. The Respondent Court committed grave abuse of discretion in denying petitioners' motions for the
suspension of the proceedings in Criminal Case No. 16936 in spite of the pendency of a prejudicial issue
before the Court of Appeals in CA-G.R. CV No. 36769;

B. The Respondent Court acted without or in excess of jurisdiction in refusing to suspend the proceedings that
would entail a retrial and rehearing by it of the basic issue involved, i.e., the validity of the appointments of
private respondents and their entitlement to compensation which is already pending resolution by the Court of
Appeals in C.A. G.R. CV No. 36769; and

C. The Respondent Court committed grave abuse of discretion and/or acted without or in excess of jurisdiction
in effectively allowing petitioners to be prosecuted under two alternative theories that private respondents
are de jure and/or de facto  officers in violation of petitioners' right to due process.10

In sum, the only issue in the case at bench is whether or not the legality or validity of private respondents' designation as
sectoral representatives which is pending resolution in CA-G.R. No. 36769 is a prejudicial question justifying suspension of the
proceedings in the criminal case against petitioners.

A prejudicial question is one that must be decided before any criminal prosecution may be instituted or before it may proceed
(see Art. 36, Civil Code) because a decision on that point is vital to the eventual judgment in the criminal case. Thus, the
resolution of the prejudicial question is a logical antecedent of the issues involved in said criminal case. 11

A prejudicial question is defined as that which arises in a case the resolution of which is a logical antecedent of the issue
involved therein, and the cognizance of which pertains to another tribunal. The prejudicial question must be determinative of the
case before the court but the jurisdiction to try and resolve the question must be lodged in another court or tribunal. 12 It is a
question based on a fact distinct and separate from "the crime but so intimately connected with it that it determines the guilt or
innocence of the accused, and for it to suspend the criminal action, it must appear not only that said case involves facts
intimately related to those upon which the criminal prosecution would be based but also that in the resolution of the issue or
issues raised in the civil case, the guilt or innocence of the accused would necessarily be determined. It comes into play
generally in a situation where a civil action and a criminal action are both pending and there exists in the former an issue which
must be preemptively resolved before the criminal action may proceed, because howsoever the issue raised in the civil action is
resolved would be determinative juris et de jure  of the guilt or innocence of the accused in the criminal case." 13
PoliRev Cases 1
The rationale behind the principle of prejudicial question is to avoid two conflicting decisions. 14 It has two essential elements:

(a) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; and

(b) the resolution of such issue determines whether or not the criminal action may proceed. 15

Applying the foregoing principles to the case at bench, we find that the issue in the civil case, CA-G.R. CV No. 36769,
constitutes a valid prejudicial question to warrant suspension of the arraignment and further proceedings in the criminal case
against petitioners.

All the elements of a prejudicial question are clearly and unmistakably present in this case. There is no doubt that the facts and
issues involved in the civil action (No. 36769) and the criminal case (No. 16936) are closely related. The filing of the criminal
case was premised on petitioners' alleged partiality and evident bad faith in not paying private respondents' salaries and per
diems as sectoral representatives, while the civil action was instituted precisely to resolve whether or not the designations of
private respondents as sectoral representatives were made in accordance with law.

More importantly, ,the resolution of the civil case will certainly determine if there will still be any reason to proceed with the
criminal action.

Petitioners were criminally charged under the Anti-Graft & Corrupt Practices Act (RA 3019, sec, 3[e]) due to their refusal,
allegedly in bad faith and with manifest partiality, to pay private respondents' salaries as sectoral representatives. This refusal,
however, was anchored on petitioners' assertion that said designations were made in violation of the Local Government Code
(B.P. Blg. 337) and thus, were null and void. Therefore, should the Court of Appeals uphold the trial court's decision declaring
null and void private respondents' designations as sectoral representatives for failure to comply with the provisions of the Local
Government Code (B.P. Blg. 337, sec. 146[2]), the charges against petitioners would no longer, so to speak, have a leg to stand
on. Petitioners cannot be accused of bad faith and partiality there being in the first place no obligation on their part to pay private
respondents' claims. Private respondents do not have any legal right to demand salaries,  per diems and other benefits. In other
words, the Court of Appeals' resolution of the issues raised in the civil action will ultimately determine whether or not there is
basis to proceed with the criminal case.

Private respondents insist that even if their designations are nullified, they are entitled to compensation for actual services
rendered.16 We disagree. As found by the trial court and as borne out by the records, from the start, private respondents'
designations as sectoral representatives have been challenged by petitioners. They began with a petition filed with the Office of
the President copies of which were received by private respondents on 26 February 1989, barely eight (8) days after they took
their oath of office.17 Hence, private respondents' claim that they have actually rendered services as sectoral representatives has
not been established.

Finally, we find unmeritorious respondent Sandiganbayan's thesis that even in the event that private respondents' designations
are finally declared invalid, they may still be considered de facto  public officers entitled to compensation for services actually
rendered.

The conditions and elements of de facto officership are the following:

1) There must be a de jure office;

2) There must be color of right or general acquiescence by the public; and

3) There must be actual physical possession of the office in good faith. 18

One can qualify as a de facto officer only if all the aforestated elements are present. There can be no de facto officer where
there is no de jure office, although there may be a de facto officer in a de jure office.19

WHEREFORE, the resolution dated 17 February 1992 and orders dated 19 August 1992 and 13 May 1993 of respondent
Sandiganbayan in Criminal Case No. 16936 are hereby SET ASIDE. Respondent Sandiganbayan is enjoined from proceeding
with the arraignment and trial of petitioners in Criminal Case No. 16936 pending final resolution of CA-G.R. CV No. 36769.

SO ORDERED.
PoliRev Cases 1
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-23258             July 1, 1967

ROBERTO R. MONROY, petitioner,
vs.
HON. COURT OF APPEALS and FELIPE DEL ROSARIO, respondent.

E. M. Fernando, E. Quisumbing-Fernando and Norberto Quisumbing for petitioner.

Sycip, Salazar, Luna and Associates for respondents.

BENGZON, J.P., J.:

Petitioner Roberto Monroy was the incumbent Mayor of Navotas, Rizal, when on September 15, 1961, his certificate of
candidacy as representative of the first district of Rizal in the forthcoming elections was filed with the Commission on Elections.
Three days later, or on September 18, 1961, petitioner filed a letter withdrawing said certificate of candidacy. The Commission
on Elections, per resolution,1 approved the withdrawal. But on September 21, 1961, respondent Felipe del Rosario, then the
vice-mayor of Navotas, took his oath of office as municipal mayor on the theory that petitioner had forfeited the said office upon
his filing of the certificate of candidacy in question.

Upon these facts, the Court of First Instance of Rizal, held in the suit for injunction instituted by petitioner against respondents
that (a) the former had ceased to be mayor of Navotas, Rizal, after his certificate of candidacy was filed on September 15, 1961;
(b) respondent del Rosario became municipal mayor upon his having assumed office as such on September 21, 1961; (c)
petitioner must reimburse, as actual damages, the salaries to which respondent was entitled as Mayor from September 21, 1961
up to the time he can reassume said office; and (d) petitioner must pay respondent P1,000.00 as moral damages.1äwphï1.ñët

This judgment was, on appeal by petitioner to the Court of Appeals, affirmed in toto  except for the award of moral damages
which was eliminated. The same Court reaffirmed its stand upon petitioner's filing a motion to reconsider. Hence, this petition
for certiorari to review the ruling of the Court of Appeals.

Petitioner first argues that both the lower court and the Court of Appeals had done what they had no jurisdiction to do — review
a resolution of the Commission on Elections. The submission is without merit.

The Constitution empowers the Commission on Elections to

x x x decide, save those involving the right to vote, all administrative questions  affecting elections, including the
determination of the number and location of polling places, and the appointment of election inspectors and of other
election officials x x x . 2 (Emphasis supplied)

And the decisions, orders and rulings of the Commission on these administrative questions are reviewable only by the Supreme
Court.3 Since the powers of the Commission are limited to matters connected with the "conduct of elections," necessarily its
adjudicatory or quasi-judicial powers are likewise limited to controversies connected with the "conduct of elections." This phrase
covers all the administrative process of preparing and operating the election machinery so that the people could exercise their
right to vote at the given time.4 All questions and controversies that may arise therefrom are to be resolved exclusively by the
Commission, subject to review only by the Supreme Court.

However, in this case there appears to be no decision, order or ruling of the Commission on any administrative question or
controversy. There was no dispute before the Commission. Respondent never contested the filing of petitioner's certificate of
candidacy. Neither has he disputed before that body the withdrawal thereof. And even if there was a controversy before the
Commission, the same did not and could not possibly have anything to do with the conduct of elections. What the parties are
actually controverting is whether or not petitioner was still the municipal mayor after September 15, 1961. This purely legal
dispute has absolutely no bearing or effect on the conduct of the elections for the seat of Congressman for the first district of
Rizal. The election can go on irrespective of whether petitioner is considered resigned from his position of municipal mayor or
not. The only interest and for that matter, jurisdiction, of the Commission on Elections in this regard is to know who are the
running candidates for the forthcoming elections, for that affects the conduct of election. So when petitioner withdrew the
certificate announcing his candidacy for Congressman, as far as the Commission could be concerned, petitioner was no longer
interested in running for that seat. The matter of his having forfeited his present position and the possible legal effect thereon by
the withdrawal of his certificate was completely out of the picture. Hence, that purely legal question properly fell within the
cognizance of the courts.

Now the withdrawal of his certificate of candidacy did not restore petitioner to his former position. Sec. 27 of the Rev. Election
Code providing that —

Any elective provincial, municipal or city official running for an office, other then the one which he is actually holding,
shall be considered resigned from his office from the moment of the filing of his certificate of candidacy,"

makes the forfeiture automatic and permanently effective upon the filing of the certificate of for another office. Only
the moment  and act of filing are considered. Once the certificate is filed, the seat is forfeited forever and nothing save a new
PoliRev Cases 1
election or appointment can restore the ousted official. Thus, as We had occasion to remark, through Justice J.B.L. Reyes,
in Castro v. Gatuslao, 98 Phil, 94, 196:

x x x The wording of the law plainly indicates that only the date of filing of the certificate of candidacy should be taken
into account. The law does not make the forfeiture dependent upon future contingencies, unforeseen and
unforeseeable since the vacating is expressly made as of the moment of the filing of the certificate of candidacy x x x .
(Emphasis supplied)

Petitioner's contention that the certificate of candidacy was filed without his knowledge and consent and, hence, the
Commission's approval of its withdrawal invalidated such certificate for all legal purposes, is untenable. It nowhere appears that
the Commission's resolution expressly invalidated the certificate. The withdrawal of a certificate of candidacy does not
necessarily render the certificate void ab initio. Once filed, the permanent legal effects produced thereby remain even if the
certificate itself be subsequently withdrawn. Moreover, both the trial court and the Court of Appeals expressly found as a
fact that the certificate in question was filed with  petitioner's knowledge and consent. And since the nature of the remedy taken
by petitioner before Us would allow a discussion of purely legal questions only, such fact is deemed conceded. 5

Petitioner would next maintain that respondent Court of Appeals likewise erred in affirming a lower court judgment requiring
petitioner to pay respondent Del Rosario by way of actual damages the salaries he was allegedly entitled to receive from
September 21, 1961, to the date of petitioner's vacation of his office as mayor. In support of this he relies solely upon Rodriguez
v. Tan, 91 Phil. 724, holding that a senator who had been proclaimed and had assumed office but was later on ousted in an
election protest, is a de facto officer during the time he held the office of senator, and can retain the emoluments received even
as against the successful protestant. Petitioner's factual premise is the appellate court's finding that he was a de facto officer
when he continued occupying the office of mayor after September 15, 1961.

However, We agree with the Court of Appeals that the Rodriguez case is not applicable here for absence of factual and legal
similarities. The Rodriguez case involved a senator who had been proclaimed as duly elected, assumed the office and was
subsequently ousted as a result of an election contest. These peculiar facts called for the application of an established
precedent in this jurisdiction that the candidate duly proclaimed must assume office notwithstanding a protest filed against him
and can retain the compensation paid during his incumbency. But the case at bar does not involve a proclaimed  elective official
who will be ousted because of an election contest. The present case for injunction and quo warranto involves the forfeiture of the
office of municipal mayor by the incumbent occupant thereof and the claim to that office by the vice-mayor because of the
operation of Sec. 27 of the Rev. Election Code. The established precedent invoked in the Rodriguez case can not therefore be
applied in this case.

It is the general rule then, i.e., "that the rightful incumbent of a public office may recover from an officer de facto the salary
received by the latter during the time of his wrongful tenure, even though he entered into the office in good faith and under color
of title"6 that applies in the present case. The resulting hardship occasioned by the operation of this rule to the de facto officer
who did actual work is recognized; but it is far more cogently acknowledged that the de facto doctrine has been formulated, not
for the protection of the de facto officer principally, but rather for the protection of the public and individuals who get involved in
the official acts of persons discharging the duties of an office without being lawful officers. 7 The question of compensation
involves different principles and concepts however. Here, it is possession of title, not of the office, that is decisive. A de
facto officer, not having good title, takes the salaries at his risk and must therefore account to the de jure officer for whatever
amount of salary he received during the period of his wrongful retention of the public office. 8

Wherefore, finding no error in the judgment appealed from, the same is, as it is hereby, affirmed in toto. Costs against petitioner.
So ordered.
PoliRev Cases 1
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 83896             February 22, 1991

CIVIL LIBERTIES UNION, petitioner,

vs.
THE EXECUTIVE SECRETARY, respondent.

G.R. No. 83815             February 22, 1991

ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T. REYES, petitioners,

vs.
PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform; CARLOS DOMINGUEZ, as Secretary of Agriculture; LOURDES
QUISUMBING, as Secretary of Education, Culture and Sports; FULGENCIO FACTORAN, JR., as Secretary of
Environment and Natural Resources; VICENTE V. JAYME, as Secretary of Finance; SEDFREY ORDOÑEZ, as Secretary
of Justice; FRANKLIN N. DRILON, as Secretary of Labor and Employment; LUIS SANTOS, as Secretary of Local
Government; FIDEL V. RAMOS, as Secretary of National Defense; TEODORO F. BENIGNO, as Press Secretary;
JUANITO FERRER, as Secretary of Public Works and Highways; ANTONIO ARRIZABAL, as Secretary of Science and
Technology; JOSE CONCEPCION, as Secretary of Trade and Industry; JOSE ANTONIO GONZALEZ, as Secretary of
Tourism; ALFREDO R.A. BENGZON, as Secretary of Health; REINERIO D. REYES, as Secretary of Transportation and
Communication; GUILLERMO CARAGUE, as Commissioner of the Budget; and SOLITA MONSOD, as Head of the
National Economic Development Authority, respondents.

Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T. David for petitioners in 83896.
Antonio P. Coronel for petitioners in 83815.

FERNAN, C.J.:p

These two (2) petitions were consolidated per resolution dated August 9, 1988 1 and are being resolved jointly as both seek a
declaration of the unconstitutionality of Executive Order No. 284 issued by President Corazon C. Aquino on July 25, 1987. The
pertinent provisions of the assailed Executive Order are:

Sec. 1. Even if allowed by law or by the ordinary functions of his position, a member of the Cabinet, undersecretary or
assistant secretary or other appointive officials of the Executive Department may, in addition to his primary position,
hold not more than two positions in the government and government corporations and receive the corresponding
compensation therefor; Provided, that this limitation shall not apply to ad hoc bodies or committees, or to boards,
councils or bodies of which the President is the Chairman.

Sec. 2. If a member of the cabinet, undersecretary or assistant secretary or other appointive official of the Executive
Department holds more positions than what is allowed in Section 1 hereof, they (sic) must relinquish the excess position
in favor of the subordinate official who is next in rank, but in no case shall any official hold more than two positions other
than his primary position.

Sec. 3. In order to fully protect the interest of the government in government-owned or controlled corporations, at least
one-third (1/3) of the members of the boards of such corporation should either be a secretary, or undersecretary, or
assistant secretary.

Petitioners maintain that this Executive Order which, in effect, allows members of the Cabinet, their undersecretaries and
assistant secretaries to hold other government offices or positions in addition to their primary positions, albeit subject to the
limitation therein imposed, runs counter to Section 13, Article VII of the 1987 Constitution, 2 which provides as follows:

Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless
otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during
said tenure, directly or indirectly practice any other profession, participate in any business, or be financially interested in
any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or
instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly
avoid conflict of interest in the conduct of their office.

It is alleged that the above-quoted Section 13, Article VII prohibits public respondents, as members of the Cabinet, along with
the other public officials enumerated in the list attached to the petitions as Annex "C" in G.R. No.
838153 and as Annex "B" in G.R. No. 838964 from holding any other office or employment during their tenure. In addition to
seeking a declaration of the unconstitutionality of Executive Order No. 284, petitioner Anti-Graft League of the Philippines further
seeks in G.R. No. 83815 the issuance of the extraordinary writs of prohibition and mandamus, as well as a temporary restraining
order directing public respondents therein to cease and desist from holding, in addition to their primary positions, dual or multiple
positions other than those authorized by the 1987 Constitution and from receiving any salaries, allowances, per diems and other
forms of privileges and the like appurtenant to their questioned positions, and compelling public respondents to return, reimburse
or refund any and all amounts or benefits that they may have received from such positions.
PoliRev Cases 1
Specifically, petitioner Anti-Graft League of the Philippines charges that notwithstanding the aforequoted "absolute and self-
executing" provision of the 1987 Constitution, then Secretary of Justice Sedfrey Ordoñez, construing Section 13, Article VII in
relation to Section 7, par. (2), Article IX-B, rendered on July 23, 1987 Opinion No. 73, series of 1987, 5 declaring that Cabinet
members, their deputies (undersecretaries) and assistant secretaries may hold other public office, including membership in the
boards of government corporations: (a) when directly provided for in the Constitution as in the case of the Secretary of Justice
who is made an ex-officio member of the Judicial and Bar Council under Section 8, paragraph 1, Article VIII; or (b) if allowed by
law; or (c) if allowed by the primary functions of their respective positions; and that on the basis of this Opinion, the President of
the Philippines, on July 25, 1987 or two (2) days before Congress convened on July 27, 1987: promulgated Executive Order No.
284.6

Petitioner Anti-Graft League of the Philippines objects to both DOJ Opinion No. 73 and Executive Order No. 284 as they
allegedly "lumped together" Section 13, Article VII and the general provision in another article, Section 7, par. (2), Article I-XB.
This "strained linkage" between the two provisions, each addressed to a distinct and separate group of public officers –– one,
the President and her official family, and the other, public servants in general –– allegedly "abolished the clearly separate,
higher, exclusive, and mandatory constitutional rank assigned to the prohibition against multiple jobs for the President, the Vice-
President, the members of the Cabinet, and their deputies and subalterns, who are the leaders of government expected to lead
by example."7 Article IX-B, Section 7, par. (2)8 provides:

Sec. 7. . . . . .

Unless otherwise allowed by law or by the primary functions of his position, 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.

The Solicitor General counters that Department of Justice DOJ Opinion No. 73, series of 1987, as further elucidated and clarified
by DOJ Opinion No. 129, series of 19879 and DOJ Opinion No. 155, series of 1988,10 being the first official construction and
interpretation by the Secretary of Justice of Section 13, Article VII and par. (2) of Section 7, Article I-XB of the Constitution,
involving the same subject of appointments or designations of an appointive executive official to positions other than his primary
position, is "reasonably valid and constitutionally firm," and that Executive Order No. 284, promulgated pursuant to DOJ Opinion
No. 73, series of 1987 is consequently constitutional. It is worth noting that DOJ Opinion No. 129, series of 1987 and DOJ
Opinion No. 155, series of 1988 construed the limitation imposed by E.O. No. 284 as not applying to ex-officio positions or to
positions which, although not so designated as ex-officio are allowed by the primary functions of the public official, but only to
the holding of multiple positions which are not related to or necessarily included in the position of the public official concerned
(disparate positions).

In sum, the constitutionality of Executive Order No. 284 is being challenged by petitioners on the principal submission that it
adds exceptions to Section 13, Article VII other than those provided in the Constitution. According to petitioners, by virtue of the
phrase "unless otherwise provided in this Constitution," the only exceptions against holding any other office or employment in
Government are those provided in the Constitution, namely: (1) The Vice-President may be appointed as a Member of the
Cabinet under Section 3, par. (2), Article VII thereof; and (2) the Secretary of Justice is an ex-officio member of the Judicial and
Bar Council by virtue of Section 8 (1), Article VIII.

Petitioners further argue that the exception to the prohibition in Section 7, par. (2), Article I-XB on the Civil Service Commission
applies to officers and employees of the Civil Service in general and that said exceptions do not apply and cannot be extended
to Section 13, Article VII which applies specifically to the President, Vice-President, Members of the Cabinet and their deputies
or assistants.

There is no dispute that the prohibition against the President, Vice-President, the members of the Cabinet and their deputies or
assistants from holding dual or multiple positions in the Government admits of certain exceptions. The disagreement between
petitioners and public respondents lies on the constitutional basis of the exception. Petitioners insist that because of the phrase
"unless otherwise provided in this Constitution" used in Section 13 of Article VII, the exception must be expressly provided in the
Constitution, as in the case of the Vice-President being allowed to become a Member of the Cabinet under the second
paragraph of Section 3, Article VII or the Secretary of Justice being designated an ex-officio member of the Judicial and Bar
Council under Article VIII, Sec. 8 (1). Public respondents, on the other hand, maintain that the phrase "unless otherwise provided
in the Constitution" in Section 13, Article VII makes reference to Section 7, par. (2), Article I-XB insofar as the appointive officials
mentioned therein are concerned.

The threshold question therefore is: does the prohibition in Section 13, Article VII of the 1987 Constitution insofar as Cabinet
members, their deputies or assistants are concerned admit of the broad exceptions made for appointive officials in general
under Section 7, par. (2), Article I-XB which, for easy reference is quoted anew, thus: "Unless otherwise allowed by law or by the
primary functions of his position, 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 corporation or their subsidiaries."

We rule in the negative.

A foolproof yardstick in constitutional construction is the intention underlying the provision under consideration. Thus, it has been
held that the Court in construing a Constitution should bear in mind the object sought to be accomplished by its adoption, and
the evils, if any, sought to be prevented or remedied. A doubtful provision will be examined in the light of the history of the times,
and the condition and circumstances under which the Constitution was framed. The object is to ascertain the reason which
induced the framers of the Constitution to enact the particular provision and the purpose sought to be accomplished thereby, in
order to construe the whole as to make the words consonant to that reason and calculated to effect that purpose. 11

The practice of designating members of the Cabinet, their deputies and assistants as members of the governing bodies or
boards of various government agencies and instrumentalities, including government-owned and controlled corporations, became
PoliRev Cases 1
prevalent during the time legislative powers in this country were exercised by former President Ferdinand E. Marcos pursuant to
his martial law authority. There was a proliferation of newly-created agencies, instrumentalities and government-owned and
controlled corporations created by presidential decrees and other modes of presidential issuances where Cabinet members,
their deputies or assistants were designated to head or sit as members of the board with the corresponding salaries,
emoluments, per diems, allowances and other perquisites of office. Most of these instrumentalities have remained up to the
present time.

This practice of holding multiple offices or positions in the government soon led to abuses by unscrupulous public officials who
took advantage of this scheme for purposes of self-enrichment. In fact, the holding of multiple offices in government was strongly
denounced on the floor of the Batasang Pambansa.12 This condemnation came in reaction to the published report of the
Commission on Audit, entitled "1983 Summary Annual Audit Report on: Government-Owned and Controlled Corporations, Self-
Governing Boards and Commissions" which carried as its Figure No. 4 a "Roaster of Membership in Governing Boards of
Government-Owned and Controlled Corporations as of December 31, 1983."

Particularly odious and revolting to the people's sense of propriety and morality in government service were the data contained
therein that Roberto V. Ongpin was a member of the governing boards of twenty-nine (29) governmental agencies,
instrumentalities and corporations; Imelda R. Marcos of twenty-three (23); Cesar E.A. Virata of twenty-two (22); Arturo R. Tanco,
Jr. of fifteen (15); Jesus S. Hipolito and Geronimo Z. Velasco, of fourteen each (14); Cesar C. Zalamea of thirteen (13); Ruben
B. Ancheta and Jose A. Roño of twelve (12) each; Manuel P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas of eleven (11)
each; and Lilia Bautista and Teodoro Q. Peña of ten (10) each. 13

The blatant betrayal of public trust evolved into one of the serious causes of discontent with the Marcos regime. It was therefore
quite inevitable and in consonance with the overwhelming sentiment of the people that the 1986 Constitutional Commission,
convened as it was after the people successfully unseated former President Marcos, should draft into its proposed Constitution
the provisions under consideration which are envisioned to remedy, if not correct, the evils that flow from the holding of multiple
governmental offices and employment. In fact, as keenly observed by Mr. Justice Isagani A. Cruz during the deliberations in
these cases, one of the strongest selling points of the 1987 Constitution during the campaign for its ratification was the
assurance given by its proponents that the scandalous practice of Cabinet members holding multiple positions in the
government and collecting unconscionably excessive compensation therefrom would be discontinued.

But what is indeed significant is the fact that although Section 7, Article I-XB already contains a blanket prohibition against the
holding of multiple offices or employment in the government subsuming both elective and appointive public officials, the
Constitutional Commission should see it fit to formulate another provision, Sec. 13, Article VII, specifically prohibiting the
President, Vice-President, members of the Cabinet, their deputies and assistants from holding any other office or employment
during their tenure, unless otherwise provided in the Constitution itself.

Evidently, from this move as well as in the different phraseologies of the constitutional provisions in question, the intent of the
framers of the Constitution was to impose a stricter prohibition on the President and his official family in so far as holding other
offices or employment in the government or elsewhere is concerned.

Moreover, such intent is underscored by a comparison of Section 13, Article VII with other provisions of the Constitution on the
disqualifications of certain public officials or employees from holding other offices or employment. Under Section 13, Article VI,
"(N)o Senator or Member of the House of Representatives may hold any other office or employment in the Government . . .".
Under Section 5(4), Article XVI, "(N)o member of the armed forces in the active service shall, at any time, be appointed in any
capacity to a civilian position in the Government, including government-owned or controlled corporations or any of their
subsidiaries." Even Section 7 (2), Article IX-B, relied upon by respondents provides "(U)nless otherwise allowed by law or by the
primary functions of his position, no appointive official shall hold any other office or employment in the Government."

It is quite notable that in all these provisions on disqualifications to hold other office or employment, the prohibition pertains to an
office or employment in the government and government-owned or controlled corporations or their subsidiaries. In striking
contrast is the wording of Section 13, Article VII which states that "(T)he President, Vice-President, the Members of the Cabinet,
and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment
during their tenure." In the latter provision, the disqualification is absolute, not being qualified by the phrase "in the Government."
The prohibition imposed on the President and his official family is therefore all-embracing and covers both public and private
office or employment.

Going further into Section 13, Article VII, the second sentence provides: "They shall not, during said tenure, directly or indirectly,
practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or
special privilege granted by the Government or any subdivision, agency or instrumentality thereof, including government-owned
or controlled corporations or their subsidiaries." These sweeping, all-embracing prohibitions imposed on the President and his
official family, which prohibitions are not similarly imposed on other public officials or employees such as the Members of
Congress, members of the civil service in general and members of the armed forces, are proof of the intent of the 1987
Constitution to treat the President and his official family as a class by itself and to impose upon said class stricter prohibitions.

Such intent of the 1986 Constitutional Commission to be stricter with the President and his official family was also succinctly
articulated by Commissioner Vicente Foz after Commissioner Regalado Maambong noted during the floor deliberations and
debate that there was no symmetry between the Civil Service prohibitions, originally found in the General Provisions and the
anticipated report on the Executive Department. Commissioner Foz Commented, "We actually have to be stricter with the
President and the members of the Cabinet because they exercise more powers and, therefore, more cheeks and restraints on
them are called for because there is more possibility of abuse in their case." 14

Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in the government
during their tenure when such is allowed by law or by the primary functions of their positions, members of the Cabinet, their
deputies and assistants may do so only when expressly authorized by the Constitution itself. In other words, Section 7, Article I-
XB is meant to lay down the general rule applicable to all elective and appointive public officials and employees, while Section
PoliRev Cases 1
13, Article VII is meant to be the exception applicable only to the President, the Vice- President, Members of the Cabinet, their
deputies and assistants.

This being the case, the qualifying phrase "unless otherwise provided in this Constitution" in Section 13, Article VII cannot
possibly refer to the broad exceptions provided under Section 7, Article I-XB of the 1987 Constitution. To construe said
qualifying phrase as respondents would have us do, would render nugatory and meaningless the manifest intent and purpose of
the framers of the Constitution to impose a stricter prohibition on the President, Vice-President, Members of the Cabinet, their
deputies and assistants with respect to holding other offices or employment in the government during their tenure. Respondents'
interpretation that Section 13 of Article VII admits of the exceptions found in Section 7, par. (2) of Article IX-B would obliterate
the distinction so carefully set by the framers of the Constitution as to when the high-ranking officials of the Executive Branch
from the President to Assistant Secretary, on the one hand, and the generality of civil servants from the rank immediately below
Assistant Secretary downwards, on the other, may hold any other office or position in the government during their tenure.

Moreover, respondents' reading of the provisions in question would render certain parts of the Constitution inoperative. This
observation applies particularly to the Vice-President who, under Section 13 of Article VII is allowed to hold other office or
employment when so authorized by the Constitution, but who as an elective public official under Sec. 7, par. (1) of Article I-XB is
absolutely ineligible "for appointment or designation in any capacity to any public office or position during his tenure." Surely, to
say that the phrase "unless otherwise provided in this Constitution" found in Section 13, Article VII has reference to Section 7,
par. (1) of Article I-XB would render meaningless the specific provisions of the Constitution authorizing the Vice-President to
become a member of the Cabinet,15 and to act as President without relinquishing the Vice-Presidency where the President shall
not nave been chosen or fails to qualify.16 Such absurd consequence can be avoided only by interpreting the two provisions
under consideration as one, i.e., Section 7, par. (1) of Article I-XB providing the general rule and the other, i.e., Section 13,
Article VII as constituting the exception thereto. In the same manner must Section 7, par. (2) of Article I-XB be construed vis-a-
vis Section 13, Article VII.

It is a well-established rule in Constitutional construction that no one provision of the Constitution is to be separated from all the
others, to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and to be
so interpreted as to effectuate the great purposes of the instrument. 17 Sections bearing on a particular subject should be
considered and interpreted together as to effectuate the whole purpose of the Constitution 18 and one section is not to be allowed
to defeat another, if by any reasonable construction, the two can be made to stand together. 19

In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which will render every
word operative, rather than one which may make the words idle and nugatory. 20

Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on the President, Vice-
President, members of the Cabinet, their deputies and assistants with respect to holding multiple offices or employment in the
government during their tenure, the exception to this prohibition must be read with equal severity. On its face, the language of
Section 13, Article VII is prohibitory so that it must be understood as intended to be a positive and unequivocal negation of the
privilege of holding multiple government offices or employment. Verily, wherever the language used in the constitution is
prohibitory, it is to be understood as intended to be a positive and unequivocal negation. 21 The phrase "unless otherwise
provided in this Constitution" must be given a literal interpretation to refer only to those particular instances cited in the
Constitution itself, to wit: the Vice-President being appointed as a member of the Cabinet under Section 3, par. (2), Article VII; or
acting as President in those instances provided under Section 7, pars. (2) and (3), Article VII; and, the Secretary of Justice
being ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.

The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the Constitution must not,
however, be construed as applying to posts occupied by the Executive officials specified therein without additional compensation
in an ex-officio capacity as provided by law and as required22 by the primary functions of said officials' office. The reason is that
these posts do no comprise "any other office" within the contemplation of the constitutional prohibition but are properly an
imposition of additional duties and functions on said officials. 23 To characterize these posts otherwise would lead to absurd
consequences, among which are: The President of the Philippines cannot chair the National Security Council reorganized under
Executive Order No. 115 (December 24, 1986). Neither can the Vice-President, the Executive Secretary, and the Secretaries of
National Defense, Justice, Labor and Employment and Local Government sit in this Council, which would then have no reason
to exist for lack of a chairperson and members. The respective undersecretaries and assistant secretaries, would also be
prohibited.

The Secretary of Labor and Employment cannot chair the Board of Trustees of the National Manpower and Youth Council
(NMYC) or the Philippine Overseas Employment Administration (POEA), both of which are attached to his department for policy
coordination and guidance. Neither can his Undersecretaries and Assistant Secretaries chair these agencies.

The Secretaries of Finance and Budget cannot sit in the Monetary Board. 24 Neither can their respective undersecretaries and
assistant secretaries. The Central Bank Governor would then be assisted by lower ranking employees in providing policy
direction in the areas of money, banking and credit. 25

Indeed, the framers of our Constitution could not have intended such absurd consequences. A Constitution, viewed as a
continuously operative charter of government, is not to be interpreted as demanding the impossible or the impracticable; and
unreasonable or absurd consequences, if possible, should be avoided. 26

To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as covering positions held without additional
compensation in ex-officio capacities as provided by law and as required by the primary functions of the concerned official's
office. The term ex-officio means "from office; by virtue of office." It refers to an "authority derived from official character merely,
not expressly conferred upon the individual character, but rather annexed to the official position." Ex-officio likewise denotes an
"act done in an official character, or as a consequence of office, and without any other appointment or authority than that
conferred by the office."27 An ex-officio member of a board is one who is a member by virtue of his title to a certain office, and
PoliRev Cases 1
without further warrant or appointment.28 To illustrate, by express provision of law, the Secretary of Transportation and
Communications is the ex-officio Chairman of the Board of the Philippine Ports Authority, 29 and the Light Rail Transit Authority.30

The Court had occasion to explain the meaning of an ex-officio position in Rafael vs. Embroidery and Apparel Control and
Inspection Board,31 thus: "An examination of section 2 of the questioned statute (R.A. 3137) reveals that for the chairman and
members of the Board to qualify they need only be designated by the respective department heads. With the exception of the
representative from the private sector, they sit ex-officio. In order to be designated they must already be holding positions in the
offices mentioned in the law. Thus, for instance, one who does not hold a previous appointment in the Bureau of Customs,
cannot, under the act, be designated a representative from that office. The same is true with respect to the representatives from
the other offices. No new appointments are necessary. This is as it should be, because the representatives so
designated merely perform duties in the Board in addition to those already performed under their original appointments."32

The term "primary" used to describe "functions" refers to the order of importance and thus means chief or principal function. The
term is not restricted to the singular but may refer to the plural. 33 The additional duties must not only be closely related to, but
must be required by the official's primary functions. Examples of designations to positions by virtue of one's primary functions
are the Secretaries of Finance and Budget sitting as members of the Monetary Board, and the Secretary of Transportation and
Communications acting as Chairman of the Maritime Industry Authority 34 and the Civil Aeronautics Board.

If the functions required to be performed are merely incidental, remotely related, inconsistent, incompatible, or otherwise alien to
the primary function of a cabinet official, such additional functions would fall under the purview of "any other office" prohibited by
the Constitution. An example would be the Press Undersecretary sitting as a member of the Board of the Philippine Amusement
and Gaming Corporation. The same rule applies to such positions which confer on the cabinet official management functions
and/or monetary compensation, such as but not limited to chairmanships or directorships in government-owned or controlled
corporations and their subsidiaries.

Mandating additional duties and functions to the President, Vice-President, Cabinet Members, their deputies or assistants which
are not inconsistent with those already prescribed by their offices or appointments by virtue of their special knowledge, expertise
and skill in their respective executive offices is a practice long-recognized in many jurisdictions. It is a practice justified by the
demands of efficiency, policy direction, continuity and coordination among the different offices in the Executive Branch in the
discharge of its multifarious tasks of executing and implementing laws affecting national interest and general welfare and
delivering basic services to the people. It is consistent with the power vested on the President and his alter egos, the Cabinet
members, to have control of all the executive departments, bureaus and offices and to ensure that the laws are faithfully
executed.35 Without these additional duties and functions being assigned to the President and his official family to sit in the
governing bodies or boards of governmental agencies or instrumentalities in an  ex-officio capacity as provided by law and as
required by their primary functions, they would be supervision, thereby deprived of the means for control and resulting in an
unwieldy and confused bureaucracy.

It bears repeating though that in order that such additional duties or functions may not transgress the prohibition embodied in
Section 13, Article VII of the 1987 Constitution, such additional duties or functions must be required by the primary functions of
the official concerned, who is to perform the same in an ex-officio capacity as provided by law, without receiving any additional
compensation therefor.

The ex-officio position being actually and in legal contemplation part of the principal office, it follows that the official concerned
has no right to receive additional compensation for his services in the said position. The reason is that these services are
already paid for and covered by the compensation attached to his principal office. It should be obvious that if, say, the Secretary
of Finance attends a meeting of the Monetary Board as an ex-officio member thereof, he is actually and in legal contemplation
performing the primary function of his principal office in defining policy in monetary and banking matters, which come under the
jurisdiction of his department. For such attendance, therefore, he is not entitled to collect any extra compensation, whether it be
in the form of a per them or an honorarium or an allowance, or some other such euphemism. By whatever name it is designated,
such additional compensation is prohibited by the Constitution.

It is interesting to note that during the floor deliberations on the proposal of Commissioner Christian Monsod to add to Section 7,
par. (2), Article IX-B, originally found as Section 3 of the General Provisions, the exception "unless required by the functions of
his position,"36 express reference to certain high-ranking appointive public officials like members of the Cabinet were
made.37 Responding to a query of Commissioner Blas Ople, Commissioner Monsod pointed out that there are instances when
although not required by current law, membership of certain high-ranking executive officials in other offices and corporations is
necessary by reason of said officials' primary functions. The example given by Commissioner Monsod was the Minister of Trade
and Industry.38

While this exchange between Commissioners Monsod and Ople may be used as authority for saying that additional functions
and duties flowing from the primary functions of the official may be imposed upon him without offending the constitutional
prohibition under consideration, it cannot, however, be taken as authority for saying that this exception is by virtue of Section 7,
par. (2) of Article I-XB. This colloquy between the two Commissioners took place in the plenary session of September 27, 1986.
Under consideration then was Section 3 of Committee Resolution No. 531 which was the proposed article on General
Provisions.39 At that time, the article on the Civil Service Commission had been approved on third reading on July 22,
1986,40 while the article on the Executive Department, containing the more specific prohibition in Section 13, had also been
earlier approved on third reading on August 26, 1986.41 It was only after the draft Constitution had undergone reformatting and
"styling" by the Committee on Style that said Section 3 of the General Provisions became Section 7, par. (2) of Article IX-B and
reworded "Unless otherwise allowed by law or by the primary functions of his position. . . ."

What was clearly being discussed then were general principles which would serve as constitutional guidelines in the absence of
specific constitutional provisions on the matter. What was primarily at issue and approved on that occasion was the adoption of
the qualified and delimited phrase "primary functions" as the basis of an exception to the general rule covering all appointive
public officials. Had the Constitutional Commission intended to dilute the specific prohibition in said Section 13 of Article VII, it
PoliRev Cases 1
could have re-worded said Section 13 to conform to the wider exceptions provided in then Section 3 of the proposed general
Provisions, later placed as Section 7, par. (2) of Article IX-B on the Civil Service Commission.

That this exception would in the final analysis apply also to the President and his official family is by reason of the legal
principles governing additional functions and duties of public officials rather than by virtue of Section 7, par. 2, Article IX-B At any
rate, we have made it clear that only the additional functions and duties "required," as opposed to "allowed," by the primary
functions may be considered as not constituting "any other office."

While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention in order to arrive
at the reason and purpose of the resulting Constitution, resort thereto may be had only when other guides fail 42 as said
proceedings are powerless to vary the terms of the Constitution when the meaning is clear.1âwphi1 Debates in the constitutional
convention "are of value as showing the views of the individual members, and as indicating the reasons for their votes, but they
give us no light as to the views of the large majority who did not talk, much less of the mass of our fellow citizens whose votes at
the polls gave that instrument the force of fundamental law. We think it safer to construe the constitution from what appears
upon its face."43 The proper interpretation therefore depends more on how it was understood by the people adopting it than in
the framers's understanding thereof.44

It being clear, as it was in fact one of its best selling points, that the 1987 Constitution seeks to prohibit the President, Vice-
President, members of the Cabinet, their deputies or assistants from holding during their tenure multiple offices or employment
in the government, except in those cases specified in the Constitution itself and as above clarified with respect to posts held
without additional compensation in an ex-officio capacity as provided by law and as required by the primary functions of their
office, the citation of Cabinet members (then called Ministers) as examples during the debate and deliberation on the general
rule laid down for all appointive officials should be considered as mere personal opinions which cannot override the constitution's
manifest intent and the people' understanding thereof.

In the light of the construction given to Section 13, Article VII in relation to Section 7, par. (2), Article IX-B of the 1987
Constitution, Executive Order No. 284 dated July 23, 1987 is unconstitutional. Ostensibly restricting the number of positions that
Cabinet members, undersecretaries or assistant secretaries may hold in addition to their primary position to not more than two
(2) positions in the government and government corporations, Executive Order No. 284 actually allows them to hold multiple
offices or employment in direct contravention of the express mandate of Section 13, Article VII of the 1987 Constitution
prohibiting them from doing so, unless otherwise provided in the 1987 Constitution itself.

The Court is alerted by respondents to the impractical consequences that will result from a strict application of the prohibition
mandated under Section 13, Article VII on the operations of the Government, considering that Cabinet members would be
stripped of their offices held in an ex-officio capacity, by reason of their primary positions or by virtue of legislation. As earlier
clarified in this decision, ex-officio posts held by the executive official concerned without additional compensation as provided by
law and as required by the primary functions of his office do not fall under the definition of "any other office" within the
contemplation of the constitutional prohibition. With respect to other offices or employment held by virtue of legislation, including
chairmanships or directorships in government-owned or controlled corporations and their subsidiaries, suffice it to say that the
feared impractical consequences are more apparent than real. Being head of an executive department is no mean job. It is more
than a full-time job, requiring full attention, specialized knowledge, skills and expertise. If maximum benefits are to be derived
from a department head's ability and expertise, he should be allowed to attend to his duties and responsibilities without the
distraction of other governmental offices or employment. He should be precluded from dissipating his efforts, attention and
energy among too many positions of responsibility, which may result in haphazardness and inefficiency. Surely the advantages
to be derived from this concentration of attention, knowledge and expertise, particularly at this stage of our national and
economic development, far outweigh the benefits, if any, that may be gained from a department head spreading himself too thin
and taking in more than what he can handle.

Finding Executive Order No. 284 to be constitutionally infirm, the court hereby orders respondents Secretary of Environment and
Natural Resources Fulgencio Factoran, Jr., Secretary of Local Government 45 Luis Santos, Secretary of National Defense Fidel
V. Ramos, Secretary of Health Alfredo R.A. Bengzon and Secretary of the Budget Guillermo Carague to immediately relinquish
their other offices or employment, as herein defined, in the government, including government-owned or controlled corporations
and their subsidiaries. With respect to the other named respondents, the petitions have become moot and academic as they are
no longer occupying the positions complained of.

During their tenure in the questioned positions, respondents may be considered de facto officers and as such entitled to
emoluments for actual services rendered.46 It has been held that "in cases where there is no de jure, officer, a de facto officer,
who, in good faith has had possession of the office and has discharged the duties pertaining thereto, is legally entitled to the
emoluments of the office, and may in an appropriate action recover the salary, fees and other compensations attached to the
office. This doctrine is, undoubtedly, supported on equitable grounds since it seems unjust that the public should benefit by the
services of an officer de facto and then be freed from all liability to pay any one for such services. 47 Any per diem, allowances or
other emoluments received by the respondents by virtue of actual services rendered in the questioned positions may therefore
be retained by them.

WHEREFORE, subject to the qualification above-stated, the petitions are GRANTED. Executive Order No. 284 is hereby
declared null and void and is accordingly set aside.

SO ORDERED.
PoliRev Cases 1
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-3913             August 7, 1952

EULOGIO RODRIGUEZ, SR., plaintiff-appellant,

vs.
CARLOS TAN, defendant-appellee.

Ramon Diokno and Jose W. Diokno for appellant.

Agustin Alvarez Salazar for appellee.

BAUTISTA ANGELO, J.:

Plaintiff seeks to collect from the defendant the aggregate sum of P18,400 as salaries and allowances and the sum of
P35,524.55 as damages, upon the plea that the latter usurped the office of Senator of the Philippines which rightfully belongs to
the former from December 30, 1947, to December 27, 1949.

Plaintiff claims that on December 30, 1947, defendant usurped the office of Senator of the Philippines, and from that date until
December 1949, he continously collected the salaries, emoluments and privileges attendant to that office amounting to P18,400;
that protest having been filed by plaintiff against defendant, the Senate Electoral Tribunal on December 16, 1949, rendered
judgment declaring plaintiff to have been duly elected to the office; and that by reason of such usurpation, plaintiff suffered
damages in the amount of P35,524.55 for expenses he incurred in prosecuting the protest.

On February 2, 1950, defendant filed a motion to dismiss alleging, on one hand, that the judgment rendered by the Senate
Electoral Tribunal in the protest case is a bar to this action under the principle of res judicata, and, on the other, that said
Tribunal denied without any reservation the claim of the plaintiff for expenses incurred in prosecuting the protest.

The issue having been thus joined upon the motion to dismiss, the Court entered on an order dismissing the complaint with
costs. From this order plaintiff has appealed.

The averment in the complaint that "defendant usurped the office of Senator of the Philippines" is a conclusion of law, — not a
statement of fact, — inasmuch as the particular facts on which the alleged usurpation is predicated are not set forth therein.
Hence such averment cannot be deemed admitted by the motion to dismiss (Fressel vs. Mariano Uy Chanco & Sons & Co., 34
Phil., 122). Moreover, such averment is negatived by the decision of the Senate Electoral Tribunal in the protest case which
says that defendant was one of those proclaimed elected as Senator in the general elections held on November 11, 1947.
Defendant, cannot, therefore, be considered a usurper as claimed in the complaint.

With this preliminary statement, let us now proceed to determine the only issue involved in this appeal, to wit, whether
defendant, who has been proclaimed, took the oath of office, and discharged the duties of Senator, can be ordered to reimburse
the salaries and emoluments he has received during his incumbency to the plaintiff who has been legally declared elected by the
Senate Electoral Tribunal. .

Plaintiff claims that, as defendant was found and by final judgment not to have been entitled to the office of Senator, and, as
such, he was during the time he discharged that office a mere de facto  officer, he should reimbursed to the plaintiff the salaries
and emoluments he has received on the following grounds; (1) because the salaries and emoluments follow and are inseparable
from legal title to the office and do not depend on whether the duties of the office are discharged or not; and (2) because such a
rule tends to curb election frauds and lessens the danger and frequency of usurpation or instrusion into the office. Plaintiffs
invites the attention of the Court to the annotation appearing in 93 A.L.R. 258,273 et seq., supplemented in 151 A.L.R. 952, 960,
et seq., wherein more than 100 cases are cited in support of the rule.

Defendant, on the other hand, contends that the rule invoked by plaintiff, while sound and plausible cannot be invoked in the
present case, since it runs counter to the principle and rule long observed in this jurisdiction to the effect that one who has been
elected to an office, and has been proclaimed by the corresponding authority, has a right to assume the office and discharge its
functions notwithstanding the protest filed against his election, and as a necessary consequence he has likewise the right to
collect and received the salaries and emoluments thereunto appertaining as a compensation for the salaries he has rendered.
Defendants avers that plaintiff already attempted to seek the reimbursement of the salaries and emoluments he had received in
the protest he has filed against him Senate Electoral Tribunal constitutes a bar to his right to collect the same salaries and
emoluments in the present case.

After a careful consideration of the issue in the light of the law and precedents obtaining in this jurisdiction, we are inclined to
uphold the point of view of the defendant. There is no question that the defendant acted as a de facto  officer during the time he
held the office of Senator. He was one of the candidates of the Liberal Party in the elections of November 11, 1947, and was
proclaimed as one of those who had been elected by the Commission on Elections, and thereafter he took the oath of office and
immediately entered into the performance of the duties of the position. Having been thus duly proclaimed as Senator and having
assumed office as required by law, it cannot be disputed that defendant is entitled to the compensation, emoluments and
allowances which our Constitution provides for the position (article VI, section 14). This is as it should be. This is in keeping with
the ordinary course of events. This is simple justice. The emolument must go to the person who rendered service unless the
contrary is provided. There is no averment in the complaint that he is linked with any irregularity vitiating his election. This is the
policy and the rule that has been followed consistently in this jurisdiction in connection with the provisions held by persons who
had been elected thereto but were later ousted as a result of an election protest. The right of the persons elected to
PoliRev Cases 1
compensation during their incumbency has always been recognized. We cannot recall of any precedent wherein the contrary
rule has been upheld.

A case which may be invoked in support of this point of view is Page vs. U.S. (127 U.S. 67; 32 Law ed. 65), decided by the
Supreme Court of the United States. In that case, one William A. Pirce was declared elected, received a certificate of election,
was sworn in and took his seat in the Congress of the United States. His election was contested by Charles H. Page, and as a
result the House of Representatives found that Pirce was not duly elected his seat vacant. An election was thereafter held to fill
the vacancy and Page was duly elected. Thereupon Page was sworn in and took his seat. Page later sued to recover the salary
received by Price during his incumbency. The Supreme Court ruled that he was not entitled to it holding that "one whose
credentials showed that he was regularly elected a member of Congress, and who was sworn in and took his seat, and served,
and drew his salary, was — although his seat was contested, and subsequently he was declared by Congress not to have been
elected, and this seat was declared vacant — the predecessor of the person elected to fill the vacancy". This case, thought it
arose under a special statute, is significant in that it regarded Pirce as the lawful predecessor of Page in the office to which he
was later legally elected. Pirce was declared entitled to the salary and emoluments of the office.

We are sympathetic to the rule earnestly advocated by the plaintiff which holds that the salaries and emoluments should follow
the legal title to the office and should not depend and whether the duties of the office are discharged or not, knowing that it is
predicated on a policy designed to discourage the Commission of frauds and to lessen the danger and frequency of usurpation
or intrusion into the office which defeat the will of the people. We are conscious that, if the rule is adopted, it would indeed have
a wholesome effect in future elections and would serve as a deterring factor in the commission of frauds, violence and terrorism
which at the times are committed in some sectors of our country to the detriment of public interest. But an examination of the
cases relied upon by him, discloses that in some states, like Indiana, New York, Michigan, California, Lousiana, Idaho, Missouri
and Washington, the doctrine advocated is premised on express statutory by reason of usurpation, (Mechem, A Treatise on the
Law of Public Offices and Officers, pp. 223-224; 93 A.L.R. pp. 284-287), whereas in the rest in the ruling is based on common
law (Kreitz vs. Behrensmeyer, 24 A.L.R. 223-224). Under such predicament, it is indeed hard to see how we can extend here
the force and effect of such doctrine as we are urged, knowing well that, as a rule, "neither the English nor the American
common law as in force in these Islands upon our courts" (U.S. vs. Cuna, 12 Phil., 241; Arnedo vs. Llorente and Liongson, 18
Phil., 257, 262) while, on the other hand, there is nothing in our status which would authorize us to adopt the rule. For us to
follow the suggestion of the plaintiff would be legislate by judicial ruling which is beyond the province of the Court. Nor are we
justified to follow a common law principle which runs counter to a precedent long observed in this jurisdiction.

Another reason that may be involved in opposition to the claim of the plaintiff is the principle of res judicata. It appears that
plaintiff had already set up this claim in the protest he filed against the defendant before the Senate Electoral Tribunal, but when
the case was decided on the merits the Tribunal passed up this matter sub silentio. In our opinion, this silence may be
interpreted as a denial of the relief. This is a matter which can be considered as an incident to the power and authority given to
the Electoral Tribunal by our Constitution, whose jurisdiction over election cases is ample and unlimited (Sanidad et al. vs. Vera
et al., Case No. 1, Senate Electoral Tribunal), and when the Tribunal chose to pass sub silentio, or ignore altogether, this
important claim, the clear implication is that it deemed it unjustified. This matter, therefore, cannot now be passed upon in line
with the doctrine laid down in the case of Kare vs. Locsin, (61 Phil., 541), wherein the Court, among other things, said;

Locsin drew his pay by resolution and authority of the Legislature. The propriety of those payments cannot be
questioned on this complaint. We recognize Locsin's rigth to receive and to retain the compensation because the
Legislature voted it to him in spite of Mr. Kare's pending contest and claim to that compensation. The legislature's
carries the corollary of Mr. Kare's lack of right to the same compensation. The Legislature might possibly have required
reimbursement by Locsin had it been its intention to recognize Mr. Kare's claim to the same compensation; but not
having done so, Locsin's superior right to this compensation is res judicata for the courts. (Kare vs. Locsin, 61 Phil., pp.
541, 546.)

The same consideration may be made with regard to the claim for damages contained in the second cause of action of the
complaint.

Wherefore, the order appealed from is affirmed, with costs against the appellant.
PoliRev Cases 1
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-30188             October 2, 1928

FELIPE TAYKO, EDUARDO BUENO, BAUTISTA TAYKO, BERNARDO SOLDE and VICENTE ELUM, petitioners,
vs.
NICOLAS CAPISTRANO, acting as Judge of First Instance of Oriental Negros. ALFREDO B. CACNIO, as Provincial
Fiscal of Oriental Negros, and JUAN GADIANI, respondents.

Abad Santos, Camus and Delgado and Teopisto Guingona for petitioners.
Araneta and Zaragoza for respondents.
The respondent Judge in his own behalf.

OSTRAND, J.:

This is a petition for a writ of prohibition enjoining the respondent judge from making cognizance of certain civil and criminal
election cases in which the petitioners are parties.

The petitioners allege that the respondent judge, previous to this date, was appointed judge of the Court of First Instance of
Oriental Negros, to hold office during good behavior and until he should reach the age of 65 years; that he now has reached that
age and, therefore, under the provisions of section 148 of the Administrative Code as amended, is disqualified from acting as a
judge of the Court of First Instance. The petitioners further allege that in view of the many election protests and criminal cases
for violation of the election law filed in the Court of First Instance of Oriental Negros arising in the Court of First Instance of
Oriental Negros arising from the last election of June 5, 1928, the Honorable Sixto de la Costa was duly designated and acted
as auxiliary judge of the Province of Oriental Negros; that between the auxiliary judge and the respondent judge herein there
was an understanding, and the assignment of the said auxiliary judge was made with this understanding, that the said auxiliary
judge so designated would hear and take cognizance of all election protests and criminal actions then pending or to filed arising
from the said last general election, and that the respondent Honorable Nicolas Capistrano would try and hear the ordinary cases
pending in the said court, but, notwithstanding this understanding or agreement, the respondent judge tried and is still trying to
take cognizance of the election protests an criminal actions in said court; that the respondent judge declared in open court that
he will try the criminal cases herein mentioned for the reason that the auxiliary judge refused to try the same on the ground that
the preliminary investigations were held before him, when, in truth and in fact, the said auxiliary judge did not make the
statement imputed to him and was and is still willing to try the election protests and criminal cases for violation of the election
law pending in the court of the Province of Oriental Negros; that the respondent Honorable Nicolas Capistrano, in spite of the
fact that he was holding and is now pretending to hold the office of judge of the Court of First Instance of Oriental Negros, took
great interest and active part in the filing of criminal charges against the petitioners herein to the unjustifiable extent of
appointing a deputy fiscal, who then filed the proper informations, when the provincial fiscal refused to file criminal charges
against the petitioners for violation of the election law for lack of sufficient evidence to sustain the same; that said respondent is
neither a judge de jure nor de facto, but that, notwithstanding this fact, he continues to hold the office of judge of the Court of
First Instance of Oriental Negros and pretends to be duly qualified and acting judge of the said province; and that he has tried,
and continues to try, to act as such judge and that there is reasonable ground to believe that he will take cognizance of the
cases in question unless he be restrained by order of this court; that in acting as a duly qualified judge notwithstanding the facts
alleged in the fifth, sixth, and seventh paragraphs hereof, the respondent judge acted and is about to act without and in excess
of jurisdiction and also after the loss of jurisdiction.

To this petition the respondents demur on the ground that the facts stated in that (1) none of the facts alleged in the petition
divest the respondent judge of his jurisdiction to take cognizance of the cases referred to in the complaint, and (2) even
admitting as true, for the sake of this demurrer, the facts alleged in paragraph 7 of the petition, the respondent judge is still a de
facto judge and his title to the office and his jurisdiction to hear the cases referred to in the petition cannot be questioned by
prohibition, as this writ, even when directed against persons acting as judges, cannot be treated as a substitute for quo
warranto, or be rightfully called upon to perform any of the functions of that writ.

The ground upon which the petition rests may be reduced to three propositions. (1) That the assignment of the Auxiliary Judge,
Sixto de la Costa, to Dumaguete was made with the understanding that the he was to hear and take cognizance of all election
contests and criminal causes for violation of the election law and that the respondent judge was to take cognizance of the
ordinary cases and that there was an understanding between them that this arrangement was to be followed.

(2) That the respondent judge took great interest and an active part in the filing of the criminal charges against the
petitioners herein to the unjustifiable extent of appointing a deputy fiscal who filed the proper informations when the
regular provincial fiscal refused to file them for lack of sufficient evidence.

(3) That the respondent judge is already over 65 years of age and has, therefore, automatically ceased as judge of the
Court of First Instance of Oriental Negros and that he is neither a judge de jure nor de facto.

(a) But little need be said as to the first proposition. A writ of prohibition to a judge of an interior court will only
lie in cases where he acts without or in excess of his jurisdiction (section 226, Code of Civil Procedure), and it
is obvious that a mere "understanding" as to the distribution of cases for trial did not deprive the respondent
judge of the jurisdiction conferred upon him by law. It may be noted that it is not alleged that another judge had
PoliRev Cases 1
taken cognizance of the cases in question or that they had been definitely assigned to trial before such other
judge.

(b) The second proposition is equally untenable.1awph!l.net That the respondent judge took great interest and
an active part in the filing of the criminal charges against the petitioners to the extent of appointing a deputy
fiscal when the regular provincial fiscal refused to file the proper informations, did not disqualify him from trying
the case in question. Section 1679 of the Administrative Code provides that "when a provincial fiscal shall be
disqualified by personal interest to act in a particular case or when for any reason he shall be unable, or shall
fail, to discharge any of the duties of his position, the judge of the Court of First Instance of the province shall
appoint an acting provincial fiscal, . . . ." (Emphasis ours.)

The determination of the question as to whether the fiscal has failed to discharge his duty in the prosecution of
a crime must necessarily, to a large extent, lie within the sound discretion of the presiding judge, and there is
no allegation in the petition that such discretion was abused in the present instance. It is true that it is stated
that the appointment of the acting fiscal was "unjustifiable," but that is only a conclusion of law and not an
allegation of facts upon which such a conclusion can be formed and may, therefore, be disregarded. It follows
that in appointing an acting fiscal, the respondent judge was well within his jurisdiction.

(c) The third ground upon which the petition is based is the most important and merits some consideration. It is
well settled that the title to the office of a judge, whether de jure or de facto, can only be determined in a
proceeding in the nature of quo warranto and cannot be tested by prohibition. But counsel for the petitioners
maintains that the respondent judge is neither a judge de jure nor de facto and that, therefore, prohibition will
lie. In this, counsel is undoubtedly mistaken.

The respondent judge has been duly appointed to the office of Judge of the Court of First Instance of Oriental Negros, but
section 148 of the Administrative Code, as amended, provides that "Judges of the Court of First Instance and auxiliary judges
shall be appointed to serve until they shall reach the age of sixty-five years." In view of this provision and assuming, as we must,
that the allegations of the petition are true, it is evident that the respondent is no longer a judge de jure, but we do not think that
it can be successfully disputed that he is still a judge de facto.

Briefly defined, a de facto judge is one who exercises the duties of a judicial office under color of an appointment or election
thereto (Brown vs. O'Connell, 36 Conn., 432). He differs, on the one hand, from a mere usurper who undertakes to act officially
without any color of right, and on the other hand, from a judge de jure who is in all respects legally appointed and qualified and
whose term of office has not expired (State vs. Carroll, 38 Conn., 449; Denny vs. Matton, 2 Allen [Mass.], 361; Van Slyke vs.
Farmers' Mut. Fire Ins. Co., 39 Wis., 390).

Apart from any constitutional or statutory regulation on the subject there seems to be a general rule of law that an
incumbent of an office will hold over after the conclusion of his term until the elction and qualification of a successor (22
R. C. L., pp. 554-5). When a judge in good faith remains in office after his title has ended, he is a de facto officer
(Sheehan's Case, 122 Mass., 445).

Applying the principles stated to the facts set forth in the petition before us, we cannot escape the conclusion that, on the
assumption that said facts are true, the respondent judge must be considered a judge de facto. His term of office may have
expired, but his successor has not been appointed, and as good faith is presumed, he must be regarded as holding over in good
faith. The contention of counsel for the petitioners that the auxiliary judge present in the district must be considered the regular
judge seems obviously erroneous.

In these circumstances the remedy prayed for cannot be granted. "The rightful authority of a judge, in the full exercise of his
public judicial function, cannot be questioned by any merely private suitor, nor by any other, excepting in the form especially
provided by law. A judge de facto assumes the exercise of a part of the prerogative of sovereignty, and the legality of that
assumption is open to the attack of the sovereign power alone. Accordingly, it is a well established principle, dating from the
earliest period and repeatedly confirmed by an unbroken current of decisions, that the official acts of a de facto judge are just as
valid for all purposes as those of a de jure judge, so far as the public or third persons who are interested therein are concerned.
The rule is the same in civil criminal cases. The principle is one founded in policy and convenience, for the right of no one
claiming a title or interest under or through the proceedings of an officer having an apparent authority to act would be safe, if it
were necessary in every case to examine the legality of the title of such officer up to its original source, and the title or interest of
such person were held to be invalidated by some accidental defect or flaw in the appointment, election or qualification of such
officer, or in the rights of those from whom his appointment or election emanated; nor could the supremacy of the laws be
maintained, or their execution enforced, if the acts of the judge having a colorable, but not a legal title, were to be deemed
invalid. As in the case of judges of courts of record, the acts of a justice de facto cannot be called in question in any suit to which
he is not a party. The official acts of a de facto justice cannot b attacked collaterally. An exception to the general rule that the title
of a person assuming to act as judge cannot be questioned in a suit before him is generally recognized in the case of a special
judge, and it is held that a party to an action before a special judge may question his title to the office of a judge on the
proceedings before him, and that the judgment will be reversed on appeal, where proper exceptions are taken, if the person
assuming to act as special judge is not a judge de jure. The title of a de facto officer cannot be indirectly questioned in a
proceeding to obtain a writ of prohibition to prevent him from doing an official act nor in a suit to enjoin the collection of a
judgment rendered by him. Having at least colorable right to the office his title can be determined only in a quo warranto
proceeding or information in the nature of a quo warranto at suit of the sovereign." (15 R. C. L., pp. 519-521.)

The demurrer to the petition is sustained, and inasmuch as it is evident that the weakness of the petition cannot be cured by
amendment the present proceedings are hereby dismissed with the costs against the petitioners jointly and severally. The
preliminary injunction hereinbefore issued is dissolved. So ordered.
PoliRev Cases 1
EN BANC

G.R. No. 154674             May 27, 2004

THE CIVIL SERVICE COMMISSION, petitioner,

vs.
FELICISIMO O. JOSON, JR., in his capacity as former Administrator of the Philippine Overseas Employment
Administration (POEA), respondent.

DECISION

CALLEJO, SR., J.:

This is a petition for review on certiorari of the Decision1 of the Court of Appeals dated August 12, 2002 reversing Resolution No.
002778 of the Civil Service Commission (CSC) which denied the respondent’s request for payment of the salary of Priscilla Ong,
as Executive Assistant IV in the Office of the Philippine Overseas Employment Administrator (POEA) for the period of July 1,
1995 to October 31, 1995.

The antecedents are as follows.

On July 1, 1995, Respondent Felicisimo O. Joson, Jr., then Administrator of the Philippine Overseas Employment Administration
(POEA) appointed Priscilla Ong as Executive Assistant IV in his office under a contractual status. The appointment was made
after the Department of Budget and Management (DBM) thru Director Miguel B. Doctor 2 approved his request for the creation of
a contractual position of Executive Assistant IV at the Office of the POEA Administrator, effective not earlier than July 1, 1995.

Subsequently, respondent Joson wrote the CSC requesting exemption from the rule requiring appointees to confidential staff
positions to meet the prescribed educational qualification. 3 The educational requirement for the position of Executive Assistant is
a "Bachelor’s degree relevant to the job"4 and Priscilla Ong was not a college degree holder.

Acting upon this request, the petitioner CSC issued Resolution No. 956978 on November 2, 1995, approving the appointment of
Ong under a Coterminous Temporary status:

In this case, it is clear that Ong does not meet the educational qualification for the position of Executive Assistant IV.
However, considering that Ong has to her credit 65 units leading to a Bachelor’s degree and that the said position is
coterminous with the appointing authority and belongs to his confidential/personal staff, the proposed appointment of
Ong may be allowed under Coterminous Temporary status.

WHEREFORE, the instant request of Administrator Felicisimo O. Joson, Jr. is hereby granted. Accordingly, the
appointment of Priscilla E. Ong to the position of Executive Assistant IV, POEA, may be approved under Coterminous
Temporary status.5

However, on February 6, 1996, Director Nelson Acebedo of the CSC National Capital Region (NCR) issued a post audit report
on the issuance of Ong’s appointment made on July 1, 1995, and invalidated the same. A motion for reconsideration was filed,
stressing, among others, that the Department of Budget Management (DBM) allowed the POEA to create such a position not
earlier than July 1, 1995 and that no less than the petitioner itself approved the appointment under a coterminous temporary
status. Upon the instructions of Director Acebedo, the effectivity of Ong’s appointment was changed from July 1, 1995 to
November 2, 1995.6

Considering the said adjustment in the effectivity date of Ong’s appointment, the respondent then requested approval for the
payment of her salary for services rendered for the period of July 1, 1995 to October 31, 1995.

The petitioner denied the request for the payment of Ong’s salary in Resolution No. 974094 dated October 16, 1997. 7 Citing
Rep. Act No. 7430 also known as the Attrition Law which, in part, states that no appointment shall be made to fill up a vacancy
unless an authority has been granted by it, 8 the petitioner posited that the authority to fill the position was granted only on
November 2, 1995 when it issued CSC Resolution No. 956978. The request for the payment of salary referred to the period prior
to the date of authority to fill the position; such claim cannot, therefore, be allowed. The petitioner concluded that, as the
appointing authority, it is the respondent who shall be personally liable for the payment of salaries as provided in Item 5(a), Part
I, CSC MC No. 38, s. 1993, which states:

5. Liability of Appointing Authority and Other Officers

a. The appointing authority shall be personally liable for the salary of appointees whose appointments have
been disapproved for violation of pertinent laws such as RA 7041 and RA 7430. 9

The respondent filed a motion for reconsideration, averring that Ong was appointed to a newly-created position which does not
require any such authority from the petitioner. The respondent emphasized in his motion that the DBM approved the creation of
the position for Ong. He asserted that, if at all, it is the POEA who should be liable under the principle of quantum meruit since
the latter was the one benefited. Thus:

Admittedly, the herein movant requested an Authority to fill the said position which was not necessary under the
premise since the position involved was a newly created position. In the first place, the Department of Budget and
Management through the Director of CPCB granted the request for the creation of said position due to the dire need
PoliRev Cases 1
and necessity of said provision. POEA could not have transgressed any provision of RA 7430 and its implementing
rules when POEA appointed Ms. Ong to the said newly created position on July 1, 1995….

… POEA should pay Ms. Ong for her services since POEA was the one benefited not the herein movant in his personal
capacity. The principle of quantum meruit dictates that not only is the one who rendered services who should paid (sic)
but equally important, is that the one benefited from such services must be the one who should pay the services. If the
herein movant would be made personally liable to pay for her services, just the same, it is tantamount to unjust
enrichment on the part of the government at the movant’s expense… 10

On June 8, 1998, the petitioner issued Resolution No. 981399 denying the respondent’s motion for reconsideration. 11 It affirmed
its ruling that the effectivity date of Ong’s appointment should be reckoned from November 2, 1995 when it granted the authority
to the respondent to fill the position, and not July 1, 1995 as asserted by the respondent. It also declared that Ong’s appointment
was not included in the POEA’s Report on Personnel Action (ROPA) submitted to the petitioner for the month of July 1995:

POEA, as an accredited agency is mandated by CSC rules to submit within fifteen (15) days of each ensuing month to
the Civil Service Regional office of Field Office concerned two copies of Monthly Report on Personnel Action, together
with certified true copy of appointments acted upon (Item, 2.2.7, Rule V, CSC Memorandum Circular No. 27, s. 1994).
In the instant case, POEA failed to comply with this rule when it did not include the appointment of Ong in its July
ROPA.12

The petitioner also held that the POEA only submitted Ong’s appointment in its ROPA for the month of November 1995. Such
belated report rendered the appointment in July ineffective.13 The petitioner concluded that there was clearly no legal basis for
the payment of Ong’s salary prior to November 2, 1995, and that the principle of quantum meruit invoked by the respondent was
not applicable.

The respondent moved for a clarification of CSC Resolution No. 981399, pointing out that the petitioner did not rule on the
matter of POEA’s alleged violation of the Attrition Law, particularly on the failure to secure "prior authority to fill." The respondent
asserted that the POEA’s alleged failure to include the proposed appointment of Ong in its July 1995 ROPA was justified
because Ong’s appointment was still the subject of a request for exemption from the requirement of Memorandum Circular (MC)
No. 38, s. 1993. The respondent received CSC Resolution No. 956978 approving Ong’s appointment under a coterminous
temporary status only on November 5, 1995; hence, the appointment was included only in the November ROPA. The
respondent pointed out that the task and duty of preparing and submitting the monthly ROPA lies with the officials of the
Personnel Department of the POEA. Finally, the respondent averred, if there was, indeed, a failure to comply with the CSC
Circular No. 27, Series of 1994, it would be quite unfair and unjust for the petitioner to order the respondent to pay the salary of
Ong out of his (the respondent’s) personal funds.

The petitioner denied the motion of the respondent in Resolution No. 991839 dated August 17, 1999. It held that the respondent
as the appointing authority, was accountable for all the appointments he issued; he cannot, thus, hide behind the mistakes of his
subordinates. The petitioner also reiterated its ruling that the appointment of Ong was made in violation of the CSC Law and its
rules. As such, the respondent must assume responsibility for the payment of Ong’s salary. Thus:

WHEREFORE, the CSC Resolution No. 981399 dated June 8, 1998 is hereby clarified. Accordingly, the payment of
salaries, benefits and other emoluments from July 1, 1995 to October 30, 1995 of Priscilla Ong, whose appointment
was in violation of R.A. 7430 (Attrition Law), shall be the personal liability of then Administrator Felicisimo O. Joson. 14

The respondent filed a motion for reconsideration of the resolution.

The petitioner treated the pleading as a second motion for reconsideration, and denied the same in Resolution No. 001956
dated August 30, 2000, in this wise:

WHEREFORE, the second Motion for Reconsideration of Felicisimo O. Joson, Jr. is hereby DENIED. Accordingly, the
CSC Resolution No. 974094 dated October 16, 1997 stands. 15

The petitioner filed another motion seeking for the reconsideration of the CSC Resolution No. 991839 pointing out that Ong may
be considered a de facto public officer who is entitled to the payment of salaries for actual services rendered. The CSC outrightly
denied the motion in CSC Resolution No. 002778 dated December 13, 2000:

WHEREFORE, the instant motion for reconsideration is hereby DENIED for lack of merit. Consequently, CSC
Resolution No. 991839 dated August 17, 1999 stands. This case is considered closed and terminated. 16

Unfazed, the respondent appealed the CSC resolutions to the Court of Appeals. On August 12, 2002, the CA rendered the
assailed judgment in favor of herein respondent, ruling that Ong was considered a de facto officer and is entitled to the payment
of her salary. The dispositive portion of the decision reads as follows:

WHEREFORE, in view of the foregoing, the instant petition for review is hereby GRANTED. Resolution No. 002778
dated 13 December 2000 rendered by public respondent Civil Service Commission, denying payment of Miss Priscilla
Ong’s compensation from 1 July 1995 to 31 October 1995, is hereby SET ASIDE. 17

Hence, this petition for review on certiorari raising the lone issue that:

THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT PRISCILLA ONG IS ENTITLED TO PAYMENT OF
HER SALARIES FROM THE GOVERNMENT FOR BEING A DE FACTO OFFICER.
PoliRev Cases 1
The petitioner maintains that Ong cannot be entitled to the payment of salary prior to November 2, 1995 because of the
following: (a) Ong did not possess the necessary qualification for the position; (b) her appointment was made in violation of the
Civil Service Law and its rules; (c) there was no prior authority to appoint, in violation of Rep. Act No. 7430; and, (d) the
appointment was not reported in the July ROPA, making such appointment ineffective.

We rule for the respondent.

The records show that the position of Executive Assistant IV in the POEA Administrator’s office was created with the approval of
the DBM on July 1, 1995. This was pursuant to a request made by the respondent for a position in his office under a contractual
status. It is quite apparent that the respondent intended the position for his confidential assistant, Priscilla Ong, whom he
considered efficient and competent on the job, albeit without a college degree. The respondent was aware of the appointee’s
lack of qualification which is precisely the reason why he requested for an exemption from the requirements of the MC No. 38 s.
1993, particularly on the educational requirement of appointees to confidential staff positions.

On November 2, 1995, the petitioner granted the respondent’s request and stated that the appointment of Ong may be
approved under a coterminous temporary status.18

The task of the petitioner is to insure that the appointee has all the qualifications for the position; otherwise it disapproves the
appointment.19 In this case, the petitioner approved the appointment of Ong under a coterminous temporary status; coterminous,
because the appointment shall only be during the tenure of the appointing power; and temporary, because the appointee did not
meet all the requirements for the position. As such, the appointment could be recalled anytime. The petitioner took into account
the fact that Ong was then enrolled in CAP College, Makati City and had 65 units credited to her leading to a four-year course in
Bachelor of Science in Business Administration, and that she just needed 61 units more to complete the same.

Under Section 4, Rule V of the Omnibus Rules, Ong’s appointment is in order, viz:

Except as otherwise provided herein, a person who meets all the requirements of the position including the appropriate
civil service eligibility shall be appointed to a position in the first and second levels. However, when the immediate filling
of a vacancy becomes necessary, taking into account the public interest, and a person with an appropriate civil service
eligibility is not actually and immediately available, a person without the appropriate civil service eligibility but who
meets the other requirements of the position may be appointed. His appointment shall be temporary for a period of not
more than twelve (12) months and he may be replaced at any time with one who has an appropriate civil service
eligibility.

In approving the appointment of Ong, the petitioner took into account the exigency and urgency of filling up the position of
Executive Assistant, as embodied in the letter of the respondent for exemption from MC No. 38:

Our request for exemption from MC # 38 series of 1993 is anchored on the fact that I have no regular holder of an
Executive Assistant, although it is included in the POEA budget. As earlier mentioned in our letter-request, as the
administrationship of POEA keeps on changing, the Executive Assistant post remains attached to another employee
who can not be asked to vacate the post because of the security of tenure of the incumbent at the time the Executive
Assistant post was declared confidential in nature. We recognize and support the reason behind the promulgation of
CSC MC # 38 series 1993. However, please consider the circumstances behind this request for exemption. Ms. Ong
has been the holder of the position since my appointment last July 1992 under the Ramos government.

May I reiterate that the position of Ms. Ong is temporary in nature and co-terminous with my term. Moreover, she is now
enrolled at the CAP College taking up BS in Business Administration. 20

The respondent reiterated the urgency of Ong’s appointment in his letter-request for the payment of Ong’s salary:

… Please note that the Office of the Administrator is the center of all communications coming in and out of POEA as
well as the focal point of all major activities whether internal or external concerns. As such, the smooth operations of
this office would not have been possible without the able and dedication of Ms. Ong who faithfully discharged her
gargantuan duties as Executive Assistant to the highest official of POEA. It would be an injustice to Ms. Ong if she is not
properly compensated for a job very well done especially in such a sensitive position. 21

With the foregoing, it can not be said that for want of a college degree as required under MC No. 38, s. 1993 for
confidential/personal positions, Ong’s appointment was in contravention of the CSC Law and its rules. While it is conceded that
the respondent intended the appointment of Ong to be contractual only, the petitioner approved the same in Resolution No.
956978, under a Coterminous-Temporary status. The appointment of Ong on July 1, 1995, is, therefore, valid.

We reject the petitioner’s contention that Ong’s appointment was invalid since the respondent appointed her to the position
without first securing an "authority to fill" as mandated by the second to the last paragraph of Section 3 of Rep. Act No. 7430.
The said provision reads:

SECTION 3. Attrition. – Within five (5) years from the approval of the Act, no appointment shall be made to fill
vacated positions in any government office as a result of resignation, retirement, dismissal, death or transfer to
another office of an officer or employee: Provided, however, That this prohibition shall not apply in the following
instances:

(a) Where the position is head of a primary organic unit such as chief of division;
PoliRev Cases 1
(b) Where the position is the lone position in the organizational unit and it corresponds to a particular expertise
that is intrinsic to the desired basic capability of the unit concerned;

(c) Where the positions are basic positions for the initial operations of newly created or activated agencies or, in
the case of other agencies, where the positions are vital and necessary for the continued and efficient
operation of said agencies;

(d) Where the positions are difficult to fill considering the qualifications required therefore, as in the case of
doctors, lawyers and other professionals;

(e) Where the positions are found in agencies declared to be understaffed;

(f) Positions in Congress or in the Judiciary;

(g) Appointments or designations extended by the President;

(h) Where the positions are found in local government units;

(i) Teaching personnel; and

(j) Where the replacement come from existing employees.

Provided, further, That the exemptions from this prohibition shall require authorization by the Civil Service
Commission; Provided, finally, That no appointment shall be issued by the appointing authority nor approved by
the Civil Service Commission without said authorization. 22

Appointments made in violation of this Act shall be null and void.

In CSC Resolution No. 974094, the petitioner denied the respondent’s motion for the POEA to pay Ong’s salary based on the
second to the last paragraph of Section 3, viz:

The Commission further finds no merit in the request because of the mandatory provision of Republic Act 7430 (Attrition
Law) which states as follows:

No appointment shall be made to fill up a vacancy unless an authority has been granted by the Commission. 23

But even a cursory reading of Section 3 of Rep. Act No. 7430 will readily show that it applies only to appointments to fill
vacant position in a government office as a result of resignation, retirement, dismissal, death, or transfer to another
office of an officer or employee within five years from the approval of the law. Under the law, attrition is defined as the
reduction of personnel as a result of resignation, retirement, dismissal in accordance with existing laws, death or
transfer to another office.24

The appointment of Ong to the position of the Executive Assistant IV in the Office of the respondent is not covered by Rep. Act
No. 7430 because Ong was appointed to a newly-created position as part of the confidential/personal staff of the respondent.
The position was approved by the DBM. The petitioner attested the appointment as coterminous temporary. The position to
which Ong was appointed was not rendered vacant as a result of the resignation, retirement, dismissal, death or transfer of an
employee to another office, as provided by the law. Thus, the petitioner cannot argue that the respondent violated the Attrition
Law in appointing Ong.

The law must not be read in truncated parts; its provisions must be read in relation to the whole law. It is the cardinal rule in
statutory construction that a statute’s clauses and phrases must not be taken as detached and isolated expressions, but the
whole and every part thereof must be considered in fixing the meaning of any of its parts in order to produce a harmonious
whole.25 Every part of the statute must be interpreted with reference to the context, i.e., that every part of the statute must be
considered together with other parts of the statute and kept subservient to the general intent of the whole enactment. 26

We find the respondent’s justification for the failure of the POEA to include Ong’s appointment in its ROPA for July 1995 as
required by CSC Memorandum Circular No. 27, Series of 1994 to be in order. The records show that the POEA did not include
the contractual appointment of Ong in its July ROPA because its request for exemption from the educational requisite for
confidential staff members provided in MC No. 38 had yet been resolved by the CSC. The resolution of the petitioner granting
such request was received only in November, 1995. The POEA, thereafter, reported the appointment in its November, 1995
ROPA.

Having been validly appointed to the position of Executive Assistant IV in the Office of the respondent, Ong is a de jure officer
and not a de facto officer as held by the Court of Appeals. The broad definition of what constitutes an officer de facto was
formulated by Lord Holt in Parker v. Kent,27 and reiterated by Lord Ellenborough and full King’s Bench in 1865 in Rex v. Bedford
Level,28 "One who has the reputation of being the officer he assumes and yet is not a good officer in point of law." A de
facto officer is one who is in possession of the office and discharging its duties under color of authority. 29 By color of authority is
meant that derived from an election or appointment, however irregular or informal, so that the incumbent is not a mere volunteer.
The difference between the basis of the authority of a de jure officer and that of a de facto officer is that one rests on right, the
other on reputation. It may be likened to the difference between character and reputation. One is the truth of a man, the other is
what is thought of him."30 It is the color of authority, not the color of title that distinguishes an officer de facto from a
usurper.31 Being a de jure officer, Ong is entitled to receive all the salaries and emoluments appertaining to the position. 32
PoliRev Cases 1
Irrefragably, Ong assumed the position and discharged her functions as Executive Assistant IV on July 1, 1995. Thenceforth,
she was entitled to the payment of her salary, as provided for in Section 10 of Rule V of the Omnibus Rules of the Civil Service
Commission on the matter of Appointments, viz:

An appointment issued in accordance with pertinent laws and rules shall take effect immediately upon its issuance by
the appointing authority, and if the appointee has assumed the duties of the position, he shall be entitled to receive his
salary at once, without awaiting the approval of his appointment by the Commission. The appointment shall remain
effective until disapproved by the Commission. In no case shall an appointment take effect earlier than the date of its
issuance.33

MC No. 38, s. 1993, likewise reads:

7. Effectivity of Appointment

a. The effectivity of an appointment shall be the date of actual assumption by the appointee but not earlier than
the date of issuance of the appointment, which is the date of signing by the appointing authority.

b. No appointment shall be made earlier than the date of issuance, except in the case of change of status in
view of qualifying in written examination, the effectivity of which is the date of release of the result of the
examination. However, the issuance of such appointments shall be within the period of the temporary
appointment or provided the temporary appointment has not yet expired…

Moreover, the Court of Appeals took note of CSC Resolution No. 953263 dated May 23, 1995 which states, thus:

… If the appointment was disapproved on grounds which do not constitute a violation of the civil service law,
such as the failure of the appointee to meet the Qualification Standards (QS) prescribed for the position, the
same is considered effective until disapproved by the Commission or any of its regional or field offices.
The appointee is meanwhile entitled to payment of salaries from the government. Furthermore, if a
motion for reconsideration or an appeal from the disapproval is seasonably filed with the proper office the
appointment is still considered to be effective. The disapproval becomes final only after the same is affirmed by
the Commission.34

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The assailed Decision of the Court of Appeals, insofar as it is
consistent with this Decision, is AFFIRMED.

SO ORDERED.
PoliRev Cases 1
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-49677 May 4, 1989

TRADE UNIONS OF THE PHILIPPINES AND ALLIED SERVICES, petitioner,

vs.
NATIONAL HOUSING CORPORATION and ATTY. VIRGILIO SY, as Officer-in-Charge of the Bureau of Labor
Relations, respondents.

Bonifacio V. Tupaz for petitioner.

The Government Corporate Counsel for respondent NHC.

Raul E. Espinosa for intervenor PACIWU.

REGALADO, J.:

The employees of the public sector comprise the largest bloc of workers in our national work force. Governmental bureaucracy
is continually being reorganized to cope with the growing complexity of the problems and needs of political and administrative
governance. As the increase in the number of government employees grows space, the need to enhance their welfare
correspondingly becomes more imperative. While it may be assumed that the Government is exerting efforts to advance the
interests of its employees, it is quite understandable that the employees themselves should actively seek arrangements where
by they can participate more meaningfully in management and employment relationships. There is, thus, a proliferation of unions
or employees' organizations, each seeking concomitant representational recognition.

The antecedent facts which led to the filing of this special civil action for certiorari are clear and undisputed. The juridical status
and relevant circumstances of respondent corporation have been established in a case of illegal dismissal filed against it, as
previously decided by the Court and hereinafter discussed. However, submitted this time for Our resolution is a controversy on
the propriety of and requirements for certification elections in government-owned or controlled corporations like the respondent.

Respondent National Housing Corporation (hereinafter referred to as NHC) is a corporation organized in 1959 in accordance
with Executive Order No. 399, otherwise known as the Uniform Charter of Government Corporations, dated January 1, 1951. Its
shares of stock are and have been one hundred percent (100%) owned by the Government from its incorporation under Act 459,
the former corporation law. The government entities that own its shares of stock are the Government Service Insurance System,
the Social Security System, the Development Bank of the Philippines, the National Investment and Development Corporation
and the People's Homesite and Housing Corporation. 1 Petitioner Trade Unions of the Philippines and Allied Services (TUPAS,
for brevity) is a legitimate labor organization with a chapter in NHC.

On July 13, 1977, TUPAS filed a petition for the conduct of a certification election with Regional Office No. IV of the Department
of Labor in order to determine the exclusive bargaining representative of the workers in NHC. It was claimed that its members
comprised the majority of the employees of the corporation. 2 The petition was dismissed by med-arbiter Eusebio M. Jimenez in
an order, dated November 7, 1977, holding that NHC "being a government-owned and/or controlled corporation its
employees/workers are prohibited to form, join or assist any labor organization for purposes of collective bargaining pursuant to
Section 1, Rule II, Book V of the Rules and Regulations Implementing the Labor Code." 3

From this order of dismissal, TUPAS appealed to the Bureau of Labor Relations 4 where, acting thereon in BLR Case No. A-984-
77 (RO4-MED-1090-77), Director Carmelo C. Noriel reversed the order of dismissal and ordered the holding of a certification
election. 5 This order was, however, set aside by Officer-in-Charge Virgilio S.J. Sy in his resolution of November 21, 1978 6 upon
a motion for reconsideration of respondent NHC.

In the instant petition for certiorari, TUPAS seeks the reversal of the said resolution and prays that a certification election be held
among the rank and file employees of NHC.

In retrospect, it will be recalled that in a former case of illegal dismissal involving the same respondent corporation, 7 We had
ruled that the employees of NHC and of other government owned or controlled corporations were governed by civil service laws,
rules and regulations pursuant to the 1973 Constitution which provided that "the civil service embraces every branch, agency,
subdivision and instrumentality of the government, including government-owned or controlled corporations." 8

It was therein stressed that to allow subsidiary corporations to be excluded from the civil service laws would be to permit the
circumvention or emasculation of the above-quoted constitutional provision. As perceptively analyzed therein, "(i)t would be
possible for a regular ministry of government to create a host of subsidiary corporations under the Corporation Code funded by a
willing legislature. A government-owned corporation could create several subsidiary corporations. These subsidiary corporation
rations would enjoy the best of two worlds. Their officials and employees would be privileged individuals, free from the strict
accountability required by the Civil Service Decree and the regulations of the Commission on Audit. Their incomes would not be
subject to the competitive restraints of the open market nor to the terms and conditions of civil service employment."
PoliRev Cases 1
The rule, however, was modified in the 1987 Constitution, the corresponding provision whereof declares that "(t)he civil service
embraces all branches, subdivisions, instrumentalities and agencies of the government, including government-owned or
controlled corporations with original charters." 9

Consequently, the civil service now covers only government owned or controlled corporations with original or legislative charters,
that is those created by an act of Congress or by special law, and not those incorporated under and pursuant to a general
legislation. As We recently held —

..., the situations sought to be avoided by the 1973 Constitution and expressed by this Court in the National
Housing Corporation case ... appear relegated to relative insignificance by the 1987 Constitutional provision
that the Civil Service embraces government-owned controlled corporations with original charters  and therefore,
by clear implication, the Civil Service does not include government-owned or controlled corporations which are
organized as subsidiaries of government-owned or controlled corporations under the general corporation law. 10

While the aforecited cases sought different reliefs, that is, reinstatement consequent to illegal dismissal, the same lis
mota determinative of the present special civil action was involved therein.

The workers or employees of NHC undoubtedly have the right to form unions or employees' organizations. The right to unionize
or to form organizations is now explicitly recognized and granted to employees in both the governmental and the private sectors.
The Bill of Rights provides that "(t)he right of the people, including those employed in the public and private sectors, to form
unions, associations or societies for purposes not contrary to law shall not be abridged" 11

This guarantee is reiterated in the second paragraph of Section 3, Article XIII, on Social Justice and Human Rights, which
mandates that the State "shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and
peaceful concerted activities, including the right to strike in accordance with law ...."

Specifically with respect to government employees, the right to unionize is recognized in Paragraph (5), Section 2, Article IX
B 12 which provides that "(t)he right to self-organization shall not be denied to government employees." The rationale of and
justification for this innovation which found expression in the aforesaid provision was explained by its proponents as follows:

... The government is in a sense the repository of the national sovereignty and, in that respect, it must be held
in reverence if not in awe. It symbolizes the unity of the nation, but it does perform a mundane task as well. It is
an employer in every sense of the word except that terms and conditions of work are set forth through a Civil
Service Commission. The government is the biggest employer in the Philippines. There is an employer-
employee relationship and we all know that the accumulated grievances of several decades are now beginning
to explode in our faces among government workers who feel that the rights afforded by the Labor Code, for
example, to workers in the private sector have been effectively denied to workers in government in what looks
like a grotesque, (sic) a caricature of the equal protection of the laws. For example, ... there were many
occasions under the old government when wages and cost of living allowances were granted to workers in the
private sector but denied to workers in the government for some reason or another, and the government did not
even state the reasons why. The government employees were being discriminated against. As a general rule,
the majority of the world's countries now entertain public service unions. What they really add up to is that the
employees of the government form their own association. Generally, they do not bargain for wages because
these are fixed in the budget but they do acquire a forum where, among other things, professional and self-
development is (sic) promoted and encouraged. They also act as watchdogs of their own bosses so that when
graft and corruption is committed, generally, it is the unions who are no longer afraid by virtue of the armor of
self-organization that become the public's own allies for detecting graft and corruption and for exposing it.... 13

There is, therefore, no impediment to the holding of a certification election among the workers of NHC for it is clear that they are
covered by the Labor Code, the NHC being a government-owned and/or controlled corporation without an original charter.
Statutory implementation of the last cited section of the Constitution is found in Article 244 of the Labor Code, as amended by
Executive Order No. 111, thus:

... Right of employees in the public service — Employees of the government corporations established under
the Corporation Code shall have the right to organize and to bargain collectively with their respective
employers. All other employees in the civil service shall have the right to form associations for purposes not
contrary to law.

The records do not show that supervening factual events have mooted the present action. It is meet, however, to also call
attention to the fact that, insofar as certification elections are concerned, subsequent statutory developments have rendered
academic even the distinction between the two types of government-owned or controlled corporations and the laws governing
employment relations therein, as hereinbefore discussed. For, whether the employees of NHC are covered by the Labor Code or
by the civil service laws, a certification election may be conducted.

For employees in corporations and entities covered by the Labor Code, the determination of the exclusive bargaining
representative is particularly governed by Articles 255 to 259 of said Code. Article 256 provides for the procedure when there is
a representation issue in organized establishments, while Article 257 covers unorganized establishments. These Labor Code
provisions are fleshed out by Rules V to VII, Book V of the Omnibus Implementing Rules.

With respect to other civil servants, that is, employees of all branches, subdivisions, instrumentalities and agencies of the
government including government-owned or controlled corporations with original charters and who are, therefore, covered by the
civil service laws, the guidelines for the exercise of their right to organize is provided for under Executive Order No. 180. Chapter
IV thereof, consisting of Sections 9 to 12, regulates the determination of the "sole and exclusive employees representative";
Under Section 12, "where there are two or more duly registered employees' organizations in the appropriate organization unit,
PoliRev Cases 1
the Bureau of Labor Relations shall, upon petition order the conduct of certification election and shall certify the winner as the
exclusive representative of the rank-and-file employees in said organizational unit."

Parenthetically, note should be taken of the specific qualification in the Constitution that the State "shall guarantee the rights of
all workers to self-organization, collective bargaining, and peaceful concerted activities, including the right to strike
in accordance with law" and that they shall also participate in policy and decision-making processes affecting their rights and
benefits as may be provided by law." 14 (Emphasis supplied.)

ON THE FOREGOING CONSIDERATIONS, the assailed resolution of the Bureau of Labor Relations, dated November 21,
1978, is ANNULLED and SET ASIDE and the conduct of a certification election among the affected employees of respondent
National Housing Corporation in accordance with the rules therefor is hereby GRANTED.

SO ORDERED.
PoliRev Cases 1
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 92140             February 19, 1991

REYNALDO D. LOPEZ, petitioner,
vs.
CIVIL SERVICE COMMISSION and ROMEO V. LUZ, JR., respondents.

Abad & Associates for petitioner.

Paterno D. Menzon Law Office for private respondent.

GUTIERREZ, JR., J.:

Petitioner Reynaldo Lopez assails the nullification by the Civil Service Commission of his appointment as Harbor Master of the
Manila South Harbor.

In 1983, petitioner Lopez, along with private respondent Romeo V. Luz, Jr. and Roberto Abellana, was appointed as Assistant
Harbor Master at Manila International Container Terminal, Manila South Harbor and Manila North Harbor, respectively.

Pursuant to Executive Order No. 125, the Ministry (now Department) of Transportation and Communications (DOTC) was
reorganized. Hence, the reduction of the number of Assistant Harbor Masters (now designated as Harbor Masters) in the
Philippine Ports Authority (PPA) from three (3) to two (2). A reevaluation of the qualifications of petitioner Lopez, Luz, and
Abellana was conducted by a placement committee of the PPA to determine who should assume the two positions. The PPA
General Manager, Rogelio A. Dayan, appointed petitioner Lopez as Harbor Master for the South Harbor after considering the
evaluation conducted by the Placement Committee of the PPA the results of which reveal that petitioner was the most
outstanding among the three. The evaluation was formally conducted and superseded the one earlier handled by a task force. It
took into account the following: education and training; experience, physical characteristics and personality traits; and
performance of each candidate. The records show that respondent Luz rated third.

Luz protested Lopez's appointment after it was approved by the Assistant Director of the Civil Service Field Office, Guillermo R.
Silva.

On February 15, 1989, the protest/appeal was denied by the PPA General Manager who explained that Luz was not qualified for
any of the two slots according to the over-all standing of the contenders.

Luz then appealed to the Civil Service Commission (CSC) which, on July 6, 1989, ruled that while the candidates were all
qualified, "there was no finding who among the three contenders is considered the most qualified and competent to merit
appointment . . ., the previous assessments of the candidates having been found defective and not in accordance with the law
and implementing regulations." The CSC directed that "comparative assessments" be made by an appropriate Placement
Committee. These assessments would then be the basis of the appointments.

On October 17, 1989, the CSC denied a motion for reconsideration filed by the PPA and ordered the submission of the results of
the re-assessment.

On November 10, 1989, the PPA submitted to the Commission the results of the re-assessment conducted by its Placement
Committee which was reconvened for that purpose. The results explained that the Committee utilized evaluation instruments
that have been validated for use in promotions to assess performance of the candidates, their education and training,
experience and outstanding accomplishments. It, however, noted certain constraints which led to the adoption of modified
measures. For instance, it noted the absence of an established instrument to determine Physical Characteristics and Personality
Traits so that it had to resort to an assessment conducted by a professional psychiatrist-consultant on the mental alertness,
reaction to pressure, personality and dependability of the candidates. Also, in the absence of complete performance appraisal
ratings of all the three candidates for the years 1987 to 1988, it utilized only the available ratings for two rating periods i.e., in
January-June 1986 and January-June 1987 in which all three candidates were rated. It did not rate outstanding
accomplishments due to the absence of a valid instrument, but it considered two (2) commendations given to Luz for his past
performance. Moreover, it did not measure each of the candidates' Potential which accounts for 25 points out of the total
standard points. It set the maximum score to a total of 70 points only. The comparative evaluation of the candidates for the
position of Harbor Master showed that petitioner Lopez garnered — 51 points, Abellana — 41.75 points, and respondent Luz —
39.75 points.

Despite this compliance by the PPA, the Commission, on February 14, 1990, found that the re-assessment was not in order. It
ruled that the immediate supervisor of respondent Luz was in the best position to assess the competence of the respondent and
not a psychiatric-consultant who was merely a contractual employee and susceptible to partiality. The Commission stressed that
the Placement Committee's current assessment ignored some of the performance appraisal ratings previously made on
respondent Luz, as well as the PPA 201 files containing only Luz's record of achievements. It also noted other factors which
PoliRev Cases 1
allegedly would affect his personality traits rating. Thus, it directed the appointment of Luz as the Harbor Master instead of the
petitioner.

Hence, this petition.

Lopez now alleges that his constitutional right to due process of law has been violated because he was never informed or
notified of the appeal of respondent Luz, the entire proceedings held on the case, and the resolutions of the Commission. He
was never invited for comment during the pendency of the appeal. He allegedly learned about the appeal only after being
informed by the PPA that his appointment had been revoked and that respondent Luz was directed to assume the position.

The respect for the right to due process in actions before administrative agencies and constitutional commissions includes the
basic requirement of granting the person, whose appointment is being contested, an opportunity to be heard. It is conceded that
petitioner Lopez was merely a nominal party in the appeal such that the appellee therein was actually the PPA whose act of
appointing was being questioned. Nevertheless, the Commission should have taken into account the right of the subject person
involved to be informed of the appeal so that he may be given a chance to present his side. A fundamental requirement of
procedural due process demands that the interested parties must have an opportunity to present their case and the decision or
resolution should be supported by substantial evidence presented by the affected parties before the tribunal (Ang Tibay v. CIR,
69 Phil. 635 [1940]).

The petitioner asserts that the Civil Service Commission gravely and seriously erred in nullifying his appointment and instead
substituting its decision for that of the PPA. For its part, the respondent Commission alleged that the selection made by the PPA
was discriminatory against Luz and did not conform to the requirements of the law, because other performance ratings of Luz
were not given weight. It justified the reversal of the appointment by saying that the Constitution and Rep. Act No. 6656 require
that an appointment satisfies the merit and fitness standard, or that "the most qualified and competent shall be preferred."

The private respondent maintains basically the same arguments set forth by the respondent Commission.1âwphi1

The records explicitly show that the Placement Committee of the PPA disclosed the manner by which it assessed all the
candidates. It specifically took note of certain limitations like the absence of ratings of all candidates for certain periods which
prompted it to avail of those instruments showing data in which all three of the contenders were subjected to evaluation. This
was resorted to in the desire to achieve fairness to all candidates. It admitted having acknowledged other performance ratings
and commendations received by respondent Luz. However, all ratings considered, the Placement Committee was of the opinion
that the petitioner is the most qualified. The appointing power was given a fair and honest appraisal which fully considered the
strengths and weaknesses of the candidates. The petitioner was appointed.

The role of the Civil Service Commission in establishing a career service and in promoting the morale, efficiency, integrity,
responsiveness, and courtesy among civil servants is not disputed by petitioner Lopez. On the other hand, the discretionary
power of appointment delegated to the heads of departments or agencies of the government is not controverted by the
respondents. In the appointment, placement and promotion of civil service employees according to merit and fitness, it is the
appointing power, especially where it is assisted by a screening committee composed of persons who are in the best position to
screen the qualifications of the nominees, who should decide on the integrity, performance and capabilities of the future
appointees. Under Section 9 (h) Presidential Decree No. 807 which authorizes the respondent Commission to

(h) Approve all appointments, whether original or promotional, to positions in the civil service, except those of
presidential appointees, members of the Armed Forces of the Philippines, police forces, firemen, and jailguards, and
disapprove those where the appointees do not possess the appropriate eligibility or required qualifications. An
appointment shall take effect immediately upon issue by the appointing authority if the appointee assumes his duties
immediately and shall remain effective until it is disapproved by the Commission, if this should take place, without
prejudice to the liability of the appointing authority for appointments issued in violation of existing laws or
rules; Provided, finally, that the Commission shall keep a record of appointments of all officers and employees in the
civil service. All appointments requiring the approval of the Commission as herein provided, shall be submitted to it by
the appointing authority within thirty days from issuance, otherwise, the appointment becomes ineffective thirty days
thereafter. (Emphasis supplied)

the Commission's power does not extend to considerations other than those enumerated in the law such as the belief that there
are others more qualified. The law limits the Commission's authority only to whether or not the appointees possess the legal
qualifications and the appropriate civil service eligibility, nothing else. To go beyond this would be to set at naught the
discretionary power of the appointing authority and to give to the Commission a task which the law (Sec. 6, Rep. Act No. 6656)
does not confer. This does not mean that the Commission's act of approving or disapproving becomes ministerial. Far from it.
Section 9 (h) of the Civil Service Law permits the exercise by the Commission of its judgment upon the validity of the
appointment by specifying the criterion for approval of appointments. (Meralco Securities Corp. v. Savellano, 117 SCRA 804
[1982]) The authority given to the Commission, therefore, is very far from a mere mechanical act in which no discretion or
exercise of judgment is allowed.

The Court has defined the parameters within which the power of approval of appointments shall be exercised by the respondent
Commission. In the case of Luego v. Civil Service Commission, 143 SCRA 327 [1986], the Court ruled that all the Commission
is actually authorized to do is to check if the appointee possesses the qualifications and appropriate eligibility: "If he does, his
appointment is approved; if not it is disapproved." We further ruled that the Commission has no authority to revoke an
appointment simply because it believed that the private respondent was better qualified 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. (Central Bank v. Civil Service Commission, 171 SCRA 744 [1989]).

The power of appointment exercised after a judicious recommendation made by a placement Committee of the agency
concerned is:
PoliRev Cases 1
(A)n 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 qualification 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 onlyu the appointing authority can decide.
(Emphasis supplied; Luego v. Civil Service Commission, supra, at p. 332)

The head of an agency who is the appointing power is the one most knowledgeable to decide who can best perform the
functions of the office. (Ocampo v. Subido, 72 SCRA 433 [1976]; Torres v. Borja, 56 SCRA 47 [1974]; Santiago v. Civil Service
Commission, 178 SCRA 733 [1989] He has a wide latitude of choice as to the person to appoint where the law does not impose
rigid conditions. (Reyes v. Abeleda, 22 SCRA 825 [1968]). Section 6, Rep. Act No. 6656 on government reorganization merely
provides that the selection or placement should be done through the creation of a Placement Committee the members of which
are representatives of the head of the agency as well as representatives of the head of the agency as well as representatives of
the employees. The committee's work is recommendatory and does not fix a stringent formula regarding the mode of choosing
from among the candidates. Thus, the respondents' arguments on the alleged inconsistencies and non-conformity with Rep. Act
No. 6656 in rating the contenders are without merit.

In view of the foregoing, the Court is not the least bit convinced by the contentions of the public and private respondents. It is
apparent from the records that the PPA disclosed all the instruments used, the limitations and the adjustments made to the end
that the results would be fair to all the candidates alike. The hiring of an independent psychiatrist-consultant, for instance, proves
the inclination of the committee towards impartiality. More important, the Court emphasizes that the Commission has no
authority to substitute its judgment for that of the Philippine Ports Authority when it comes to evaluating the performance,
personality, and accomplishments of candidates who all have the necessary eligibility and legal qualifications.

WHEREFORE, the petition is hereby GRANTED. The resolutions of the respondent Civil Service Commission dated July 6,
1989, October 17, 1989, and February 14, 1990 are REVERSED and SET ASIDE. Petitioner REYNALDO D. LOPEZ is declared
to be entitled to the office in dispute by virtue of this permanent appointment thereto effective October 1, 1988. The temporary
restraining order issued by the Court on March 22, 1990 is made permanent.

SO ORDERED.
PoliRev Cases 1
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 92561 September 12, 1990

SECRETARY OSCAR ORBOS OF THE DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS, petitioner,

vs.
CIVIL SERVICE COMMISSION and NERIO MADARANG, respondents.

The Solicitor General for petitioners.

Jose C. Cimano for private respondent.

GANCAYCO, J:

Once again the extent of the authority of the Civil Service Commission (CSC) to pass upon contested appointments is brought
into focus in this petition. The appearance of the Solicitor General on behalf of the petitioner is also questioned.

In the course of the reorganization of the Department of Transportation and Communications (DOTC), Guido C. Agon and
Alfonso Magnayon were appointed to the positions of Head Telecommunications Engineer, range 74.

Nerio Madarang who was also appointed to the position of Supervising Telecommunications Engineer, range 12, questioned the
appointments of Agon and Magnayon by filing an appeal with the Reorganization Appeals Board of the DOTC composed of
Moises S. Tolentino, Jr. of the Office of the Secretary, as Chairman and Assistant Secretary Rosauro V. Sibal and Graciano L.
Sitchon of the Office of the Secretary, as members. In a resolution dated January 9, 1989 the said Reorganization Appeals
Board dismissed Madarang's appeal for lack of merit. Hence, he appealed to the public respondent Civil Service Commission
(CSC)

In its resolution dated August 29, 1989, respondent CSC revoked the appointments of Agon and Magnayon for the contested
positions and directed the appointment of Madarang to the said position of Heads Telecommunications Engineer. 1 DOTC
Assistant Secretary Sibal sought a reconsideration of the said resolution of the CSC but this was denied in a resolution dated
November 2, 1989. 2

On November 21, 1989, Assistant Secretary Sibal filed a manifestation with the CSC stating:

The Telecommunications Office through the undersigned, hereby manifests that we received the CSC
resolution in CSC Case No. 393 on November 12, 1989 and in compliance thereto, we will convene our
Selection and Promotion Board to deliberate on the position of Head Telecommunications Engineer
(reclassified to Engineer IV pursuant to National Compensation Circular No. 58 effective July 1, 1989) with
qualified candidates including appellant Nerio Madarang. 3

In a letter dated November 27, 1989, respondent Madarang requested the CSC to take appropriate action by implementing its
resolutions dated August 29, 1989 and November 2, 1989.

In an order dated December 19, 1989, the CSC directed the immediate implementation of its aforementioned resolution insofar
as it concerned the appointment of Madarang. 4

Agon and Magnayon filed their separate motions for reconsideration of the aforestated resolutions of the CSC but these were
denied by the said commission in a resolution dated January 19, 1990.

Hence, this petition for certiorari with prayer for a writ of preliminary injunction or restraining order which was filed by the Solicitor
General in behalf of petitioner. On March 29, 1990, the Court required the respondents to comment on the petition within ten
(10) days from notice and issued a restraining order enjoining the CSC from enforcing its questioned resolutions until further
orders.

The sole issue in this case is whether or not the CSC acted in excess of its jurisdiction or with grave abuse of discretion
amounting to lack of jurisdiction when it ordered the appointment of Nerio Madarang to the contested position.

While petitioner does not question the aforestated resolutions of the CSC insofar as it disapproved the appointments of Agon
and Magnayon to the positions of Head Telecommunications Engineer, petitioner maintains that as the appointing authority, he
has the right of choice and discretion to appoint the persons whom he deems fit to the position to be filled. 5 Petitioner
emphasizes that when the CSC denied his motion for reconsideration in a resolution dated November 2, 1989, Assistant
Secretary Sibal informed the CSC through a manifestation that the DOTC Selection and Promotions Board will be convened to
deliberate on the position of Head Telecommunications Engineer, taking into consideration qualified candidates including Nerio
Madarang. Nevertheless, the CSC stood pat on its resolution directing the appointment of Nerio Madarang to the contested
position.
PoliRev Cases 1
On the other hand, the CSC contends that it was properly exercising a constitutional and legal duty to enforce the merit and
fitness principle in the appointment of civil servants and to uphold their equally guaranteed right to be appointed to similar or
comparable positions in the reorganized agency consistent with applicable law and issuances of competent authorities. 6

Invoking the following provisions of the Constitution:

Section 3 (Article IX [B]). — The Civil Service Commission, as the central personnel agency of the
Government, shall establish a career service and adopt measures to promote morale, efficiency, integrity,
responsiveness, progressiveness, and courtesy in the civil service. It shall strengthen the writ and reward
system, integrate all human resources development programs for all levels and ranks, and institutionalize a
management climate conducive to public accountability. It shall submit to the President and the Congress an
annual report on its personnel programs.' (Emphasis supplied.);

Section 19, Book V of Executive Order No. 292 (The Administrative Code of 1987) which provides:

Section 19. Recruitment and Selection of Employees — (l) Opportunity for government employment shall be
open to all qualified citizens, and positive efforts shall be exerted to attract the best qualified to enter the
service. Employees shall be selected on the basis of the fitness to perform the duties and assume the
responsibilities of the position.;

and Section 12 of the same Executive Order:

Sec. 12. — The Commission shall administer the Civil Service and shall have the following powers and
functions: (a) Administer and enforce the constitutional and statutory provision of the said merit systems...
(Emphasis supplied.)

respondent CSC argues that the primary objective of the CSC system is to promote and establish professionalism by ensuring a
high level of morale among the employees and officers in the career civil service. Pursuant to this constitutional mandate, the
CSC contends it should see to it that the merit system is applied, enforced and implemented in personnel actions involving
appointments affecting all levels and ranks in the civil service at all times. 7

The Court finds the petition to be impressed with merit.

Paragraph H, Section 9 of Presidential Decree No. 807, otherwise known as the 'Civil Service Decree of the Philippines,"
provides:

Section 9. Powers and Function of the Commission. —The Commission shall administer the Civil Service and
shall have the following powers and functions:

xxx xxx xxx

(h) Approve all appointments, whether original or promotional, to positions in the civil service, except those of
presidential appointees, members of the Armed Forces of the Philippines, police forces, firemen, and
jailguards, and disapprove those where the appointees do not possess the appropriate eligibility or required
qualifications. An appointment shall take effect immediately upon issue by the appointing authority if the
appointee assumes his duties immediately and shall remain effective until it is disapproved by the Commission,
if this should take place, without prejudice to the liability of the appointing authority for appointments issued in
violation of existing laws or rules: Provided, finally, That the Commission shall keep a record of appointments of
all officers and employees in the civil service. All appointments requiring the approval of the Commission as
herein provided, shall be submitted to it by the appointing authority within thirty days from issuance, otherwise
the appointment becomes ineffective thirty days thereafter. (Emphasis supplied)

From the foregoing provision it is clear that the CSC has the power to approve or disapprove an appointment and not the power
to make the appointment itself or to direct that such appointment be made by the appointing authority. The CSC can only inquire
into the eligibility of the person chosen to fill a vacant position and it finds the person qualified it must so attest. The duty of the
CSC is to attest appointments. 8 That function being discharged, its participation in the appointment process ceases. 9

By the same token, should the CSC find that the appointee is not qualified for the position, it has the duty to disapprove the
appointment. Thereafter, the responsibility of appointing the qualified person in lieu of the disqualified appointee rests upon the
discretion of the appointing authority. The CSC cannot encroach upon such discretion vested solely in the appointing authority.

This Court has pronounced in no uncertain terms that the CSC has no authority to revoke an appointment on the ground that
another person is more qualified for a particular position. The Court likewise held that the CSC does not have the authority to
direct the appointment of a substitute of its choice. 10

Petitioner demonstrated his deference to the resolutions of the CSC disapproving the appointments of Agon and Magnayon.
However, in the implementation of said resolutions he decided to convene the DOTC Selection and Promotions Board to
deliberate on the person who should be appointed as Head Telecommunications Engineer among qualified candidates including
respondent Nerio Madarang. Instead of acknowledging the authority of petitioner to exercise its discretion in the appointment of
a replacement, the CSC, in excess of its jurisdiction and with grave abuse of discretion amounting to lack of jurisdiction, directed
the appointment of Madarang as the substitute of its choice. This act of the CSC must be struck down.
PoliRev Cases 1
Private respondent Madarang, besides his comment, filed a motion to disqualify the Office of the Solicitor General from
appearing for petitioner and to cite petitioner in contempt of court for the filing of the petition.

The Solicitor General is the lawyer of the government, its agencies and instrumentalities, and its officials or agents including
petitioner and public respondent. This is so provided under Presidential Decree No. 478:

SECTION 1. Functions and Organization. — (1) The Office of the Solicitor General shall represent the
Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation,
proceeding, investigation or matter requiring the services of a lawyer. .... (Emphasis supplied.) 10-A

In the discharge of this task the Solicitor General must see to it that the best interest of the government is upheld within the limits
set by law. When confronted with a situation where one government office takes an adverse position against another
government agency, as in this case, the Solicitor General should not refrain from performing his duty as the lawyer of the
government. It is incumbent upon him to present to the court what he considers would legally uphold the best interest of the
government although it may run counter to a client's position. 11 In such an instance the government office adversely affected by
the position taken by the Solicitor General, if it still believes in the merit of its case, may appear in its own behalf through its legal
personnel or representative.

In the present case, it appears that after the Solicitor General studied the issues he found merit in the cause of the petitioner
based on the applicable law and jurisprudence. Thus, it is his duty to represent the petitioner as he did by filing this petition. He
cannot be disqualified from appearing for the petitioner even if in so doing his representation runs against the interests of the
CSC.

This is not the first time that the Office of the Solicitor General has taken a position adverse to his clients like the CSC, the
National Labor Relations Commission, among others, and even the People of the Philippines. In such instances, the Solicitor
General nevertheless manifests his opinion and recommendation to the Court which is an invaluable aid in the disposition of the
case. On some occasions he begs leave to be excused from intervening in the case, more so, when the client had already filed
its own comment different from the stand of the Solicitor General or in a situation when he finds the contention of a private party
tenable as against that of the government or any of its agencies. The Solicitor General has recommended the acquittal of the
accused in appealed criminal cases.

There are cases where a government agency declines the services of the Solicitor General or otherwise fails or refuses to
forward the papers of the case to him for appropriate action. The Court finds and so holds that this practice should be stopped.
To repeat, the Solicitor General is the lawyer of the government, any of its agents and officials in any litigation, proceeding,
investigation or matter requiring the services of a lawyer. The exception is when such officials or agents are being charged
criminally or are being civilly sued for damages arising from a felony. 12 His services cannot be lightly rejected, much less
ignored by the office or officials concerned.

Indeed, the assistance of the Solicitor General should be welcomed by the parties. He should be given full support and
cooperation by any agency or official involved in litigation. He should be enabled to faithfully discharge his duties and
responsibilities as the government advocate. And he should do no less for his clients. His burden of assisting in the fair and just
administration of justice is clear.

This Court does not expect the Solicitor General to waver in the performance of his duty. As a matter of fact, the Court
appreciates the participation of the Solicitor General in many proceedings and his continued fealty to his assigned task. He
should not therefore desist from appearing before this Court even in those cases he finds his opinion inconsistent with the
Government or any of its agents he is expected to represent. The Court must be advised of his position just as well.

Private respondent Madarang also seeks to hold petitioner in contempt of court on the ground that the petition was filed in order
to circumvent or obviate the dismissal of a similar petition in this Court filed by Guido Agon and Alfonso Magnayon. The legal
personality of the petitioner to file the petition is also questioned on the ground it was Assistant Secretary Sibal and not the
petitioner who issued the contested appointments.

The petitioner denies this contention. He asserts that the petition was properly brought in his name as head of the DOTC as
what is in issue is the reorganization of the said department. The petitioner does not dispute the disapproval of the appointments
of Agon and Magnayon; he only disagrees with the order of the CSC directing the appointment of Madarang to the contested
position. The petitioner also alleges that he was not aware of the existence of a separate petition filed in this Court by Agon and
Magnayon.

The Court finds the arguments and assertions of petitioner to be well taken.

It is true that the records of this Court show that there is such a case docketed as G.R. No. 92064 entitled "Guido Agon, et al.,
vs. CSC et al." which is a special civil action for certiorari with a prayer for a writ of preliminary injunction. The petition was
dismissed for late filing in a resolution dated February 27, 1990.

On March 29, 1990 this Court denied with finality the motion for reconsideration filed by the said petitioners there being no
compelling reason to warrant the reversal of the questioned resolution.

Apparently, the disapproval of the appointments of Agon and Magnayon was the issue in said petition. In the present petition as
aforestated, petitioner yields to the disapproval of the appointment of the two, but questions the authority of the CSC to direct the
appointment of Madarang to the contested position.
PoliRev Cases 1
WHEREFORE, the petition is GRANTED and the questioned resolutions of the respondent CSC dated August 29, 1989,
November 2, 1989 and January 19, 1990 are hereby annulled insofar as they direct the appointment of Nerio Madarang to the
contested position. The petitioner is hereby authorized to convene the DOTC Selection and Promotion Board to determine who
shall replace Guido Agon and Alfonso Magnayon to the contested position by considering all qualified candidates including Nerio
Madarang. The restraining order dated March 29, 1990 is hereby made permanent. No costs.

SO ORDERED.
PoliRev Cases 1
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 111471 September 26, 1994

CITY MAYOR ROGELIO R. DEBULGADO and VICTORIA T. DEBULGADO, petitioners,

vs.
CIVIL SERVICE COMMISSION, respondent.

Marlon P. Ontal for petitioners.

FELICIANO, J.:

Petitioner Rogelio R. Debulgado is the incumbent Mayor of the City of San Carlos, Negros Occidental. On 1 October 1992,
petitioner Mayor appointed his wife, petitioner Victoria T. Debulgado, as General Services Officer, that is, as head of the Office
of General Services 1 of the City Government of San Carlos.

Petitioner Victoria was one of three (3) employees of the City Government who were considered for the position of General
Services Officer. Before her promotion in 1992, she had been in the service of the City Government for about thirty-two (32)
years. She joined the City Government on 3 January 1961 as Assistant License Clerk. Through the years, she rose from the
ranks, successively occupying the following positions:

(a) Assistant Chief of the License & Fees Division, from 1 July 1965 to 30 June 1973;

(b) Chief of the License and Fees Division, from 1 July 1973 to 1 January 1981;

(c) Cashier, from 2 January 1981 to 30 June 1989; and

(d) Cashier IV, from 1 July 1989 to 30 September 1992. 2

On 1 October 1992, petitioner Victoria assumed the new post, and commenced discharging the functions, of General
Services Officer of San Carlos City and receiving the regular salary attached to that position.

On 16 December 1992, public respondent Civil Service Commission ("Commission") received a letter 3 from Congressman
Tranquilino B. Carmona of the First District of Negros Occidental, calling attention to the promotional appointment issued by
petitioner Mayor in favor of his wife.

The Commission directed its Regional Office No. 6-Iloilo City to submit a report on the appointment of petitioner Victoria.

From the report submitted by Director Jesse J. Caberoy of the Iloilo City-CSRO No. 6, the Commission found that petitioner
Mayor was the lawful husband of the appointee, petitioner Victoria, the two (2) having been married sometime in 1964. Director
Caberoy also reported that the appointment papers prepared by the Office of the City Mayor of San Carlos were submitted to the
Bacolod City CSC-Field Office on 28 October 1992, and that the appointment was thereafter approved by Director Purita H.
Escobia of that CSC-Field Office, on 18 November 1992.

Acting on the report of Director Caberoy, the Commission, in its Resolution No. 93-1427 dated 13 April 1993, recalled the
approval issued by Director Escobia and disapproved the promotion of petitioner Victoria to the position of General Services
Officer of San Carlos City upon the ground that that promotion violated the statutory prohibition against nepotic appointments.

On 14 June 1993, petitioner Mayor and petitioner Victoria received a copy of Resolution No. 93-1427 of the
Commission. 4 Petitioners moved for reconsideration, contending that the statutory prohibition against nepotism was not
applicable to the appointment of Victoria as General Services Officer. Petitioners also asserted that the Commission had
deprived petitioner Victoria of her right to due process by unilaterally revoking her appointment. The motion for reconsideration
was denied by the Commission on 21 July 1993.

In this Petition for Certiorari, petitioner Mayor and petitioner Victoria contend that the Commission had gravely abused its
discretion in withdrawing and disapproving petitioner Victoria's promotional appointment. Petitioners assert that Victoria can no
longer be removed from the position of General Services Officer without giving her an opportunity to be heard and to answer the
charged of nepotism.

Petitioner Mayor denies that he had been motivated by personal reasons when he appointed his wife to the new post. He states
that his wife was the most qualified among the candidates for appointment to that position, she having worked for the City
Government for thirty-two (32) years and being highly recommended by the OIC-Treasurer of San Carlos City. 5 It is also
claimed by petitioner Mayor that his choice of his wife for the position was concurred in by the Sangguniang Panglungsod. 6 He
further avers that he had consulted the Field and Regional Officers of the Commission in Bacolod City, and raised the question
of applicability of the prohibition against nepotism to the then proposed promotion of his wife in one of the seminars conducted
PoliRev Cases 1
by the Commission's Regional Office held in San Carlos City on 21 and 22 September 1992. According to petitioner Mayor, one
Gregorio C. Agdon, a supervising personnel specialist in the Commission's Bacolod Office, informed him that the promotional
appointment was not covered by the prohibition. 7

The basic contention of petitioners is that the prohibition against nepotic appointments is applicable only to original appointments
and not to promotional appointments. They believe that because petitioner Victoria was already in the service of the City
Government before she married petitioner Mayor, the reason behind the prohibition no longer applied to her promotional
appointment. Petitioners also affirm that petitioner Victoria deserves to be promoted to General Services Officer, considering her
long and faithful service to the City Government. 8

The task before this Court is, accordingly, two-fold:

(1) to determine whether a promotional appointment is covered by the legal prohibition against nepotism, or
whether that prohibition applies only to original appointments to the Civil Service; and

(2) to determine whether the Commission had gravely abused its discretion in recalling and disapproving the
promotional appointment given to petitioner Victoria after the Commission, through Director Escobia, had
earlier approved that same appointment, without giving an opportunity to petitioner Victoria to explain her side
on the matter.

The prohibitory norm against nepotism in the public service is set out in Section 59, Book V of the Revised Administrative Code
of 1987 (also known as E.O. No. 292). Section 59 reads as follows:

Sec. 59. Nepotism — (1) All appointments in the  national, provincial, city  and municipal governments or in any
branch or instrumentality thereof, including government-owned or controlled corporations, made in favor of a
relative of the appointing or recommending authority, or of the chief of the bureau or office, or of the persons
exercising immediate supervision over him, are hereby prohibited.

As used in this Section the word "relative" and members of the family referred to are those related within the
third degree either of consanguinity or of affinity.

(2) The following are exempted from the operation of the rules on nepotism: (a) persons employed in a
confidential capacity, (b) teachers, (c) physicians, and (d) members of the Armed Forces of the Philippines:
Provided, however, That in each particular instance full report of such appointment shall be made to the
Commission.

The restriction mentioned in subsection (1) shall not be applicable to the case of a member of any family who,
after his or her appointment to any position in an office or bureau, contracts marriage with someone in the
same office or bureau, in which event the employment or retention therein of both husband and wife may be
allowed.

(3) In order to give immediate effect to these provisions, cases of previous appointment which are in
contravention hereof shall be corrected by transfer and pending such transfer, no promotion or salary increase
shall be allowed in favor of the relative or relatives who were appointed in violation of these provisions.
(Emphasis supplied).

Section 6 of Rule XVIII, of the "Omnibus Rules Implementing Book V of Executive Order No. 292 and other Pertinent Civil
Service Laws," issued on 27 December 1991, implementing, among other things, the abovequoted Section 59, provides as
follows:

Sec. 6. No appointments in the national, provincial, city and municipal government or in any branch or

instrumentality thereof, including government-owned or controlled corporations with original charters shall be
made in favor of a relative of the appointing or recommending authority, or of the chief of the bureau or office,
or of the persons exercising immediate supervision over the appointee.

Unless otherwise specifically provided by law, as used in this Section, the word "relative" and the members of
the family referred to are those related within the third degree either of consanguinity or of affinity.

The following are exempted from the operation of the rules on nepotism: (a) persons employed in a confidential
capacity; (b) teachers; (c) physicians; (d) members of the Armed Forces of the Philippines. Provided, however,
That in each particular instance full report of such appointment shall be made to the Commission.

The restriction mentioned in the first paragraph of this Section shall not be applicable to the case of a member
of any family who after his or her appointment to any position in an office or bureau, contracts marriage with
someone in the same office or bureau, in which event the employment or retention therein of both husband and
wife may be allowed.

Cases of previous appointment which are in contravention hereof shall be corrected by transfer, and pending
such transfer no promotion or salary increase shall be allowed in favor of the relative or relatives who were
appointed in violation of these provisions. (Emphasis supplied)
PoliRev Cases 1
It will be noted that the abovequoted Section 6 of Implementing Rule XVIII essentially tracks the provisions of Section
59, Book V of E.O. No. 292. 9

We turn, therefore, to an analysis of Section 59, Book V of E.O. No. 292, quoted above. The noteworthy fact may be pointed out,
at the outset, that Section 59 as it exists today has been in our statute books in substantially identical form and language for at
least thirty (30) years. 10

A textual examination of Section 59 at once reveals that the prohibition was cast in comprehensive and unqualified terms.
Firstly, it explicitly covers "all appointments", without seeking to make any distinction between differing kinds or types of
appointments. Secondly, Section 59 covers all appointments to the national, provincial, city  and municipal  government, as well
as any branch or instrumentality thereof  and all government owned or controlled corporations. Thirdly, there is a list of
exceptions set out in Section 59 itself, but it is a short list:

(a) persons employed in a confidential capacity;

(b) teachers;
(c) physicians; and
(d) members of the Armed Forces of the Philippines.

The list has not been added to or subtracted from for the past thirty (30) years. The list does not contain words like "and
other similar positions." Thus, the list appears to us to be a closed one, at least closed until lengthened or shortened by
Congress.

Section 59 of Book V, E.O. No. 292 should, of course, be read in connection with the Omnibus Implementing Rules. Additional
light is shed on the issue we here address by some provisions of these Rules. Section 1, Rule V of the Omnibus Implementing
Rules reads as follows:

Sec. 1. All appointments in the career service shall be made only according to merit and fitness to be
determined as far as practicable by competitive examinations.

As used in these Rules, any action denoting movement or progress of personnel in the civil service shall be
known as personnel action. Such action shall include promotion, transfer, reinstatement, reemployment, detail,
secondment, reassignment, demotion and separation. All original appointments and personnel actions shall be
in accordance with these Rules and with other regulations and standards that may be promulgated by the
Commission. (Emphasis supplied)

Section 1, Rule VII of the same Rules also bears upon our inquiry:

Sec. 1. The following constitute personnel actions: original appointment, appointment through certification,
promotion, transfer, reinstatement, reemployment, detail, secondment, demotion and separation. (Emphasis
supplied)

Under the abovequoted provisions of the Implementing Rules, both an original appointment and a promotion are particular
species of personnel action. The original appointment  of a civil service employee and all subsequent personnel
actions  undertaken by or in respect of that employee such as promotion, transfer, reinstatement, reemployment, etc., must
comply with the Implementing Rules including, of course, the prohibition against nepotism in Rule XVIII. To the extent that all
personnel actions occurring after an original appointment, require the issuance of a new appointment to another position (or to
the original position in case of reinstatement), we believe that such appointment must comply with all applicable rules and
prohibitions, including the statutory and regulatory prohibition against nepotism. To limit the thrust of the prohibition against
nepotism to the appointment issued at the time of initial entry into the government service, and to insulate from that prohibition
appointments subsequently issued when personnel actions are thereafter taken in respect of the same employee, would be
basically to render that prohibition, in the words of Laurel V, etc. v. Civil Service Commission, 11 "meaningless and toothless."

Inquiry into the basic purpose or objective of the prohibition against nepotism also strongly indicates that that prohibition was
intended to be a comprehensive one. Section 1, Book V, E.O. No. 292 sets out the basic policy which pervades all the
provisions of our Civil Service law, including Section 59 thereof:

Sec. 1.  Declaration of Policy. — The State shall insure and promote the Constitutional mandate that
appointments in the Civil Service shall be made only according to merit and fitness; . . . (Emphasis supplied)

Put succinctly, that purpose is to ensure that all appointments and other personnel actions in the civil service should be
based on merit and fitness and should never depend on how close or intimate an appointee is to the appointing
power. 12

Laurel V, etc. v. Civil Service Commission supra, is instructive in this connection. In that case, petitioner Governor of Batangas
Province appointed or designated his brother, Benjamin Laurel, who had been holding a promotional appointment as Civil
Security Officer, a position classified as "primarily confidential" by the Civil Service, to the position of Provincial Administrator, a
position in the Career Civil Service. This Court held that the appointment or designation as Acting Provincial Administrator was
violative of the prohibition against nepotism, then embodied in Section 49, P.D. No. 807. Moreover, the Court emphatically
agreed with the Civil Service Commission that "although what was extended to Benjamin was merely a designation and not an
appointment, . . . the prohibitive mantle on nepotism would include designation, because what cannot be done directly, cannot
be done indirectly:"
PoliRev Cases 1
We cannot accept petitioner's view. His specious and tenuous distinction between appointment and
designation is nothing more than either a ploy ingeniously conceived to circumvent the rigid rule on
nepotism or a last-ditch maneuver to cushion the impact of its violation. The rule admits of no distinction
between appointment and designation. Designation is also defined as "an appointment or assignment to a
particular office"; and "to designate" means "to indicate, select, appoint  or set apart for a purpose of duty."
(Black's Law Dictionary, Fifth ed., 402)

xxx xxx xxx

It seems clear to Us that Section 49 of P.D. No. 807 does not suggest that designation should be differentiated
from appointment. Reading this section with Section 25 of said decree, career service positions may be filled
up only by appointment, either permanent or temporary; hence a designation  of a person to fill it up because it
is vacant, is necessarily included in the term appointment, for it precisely accomplishes the same purpose.
Moreover, if a designation is not to be deemed included in the term appointment under Section 49 of P.D. No.
807, then the prohibition on nepotism would be meaningless and toothless. Any appointing authority may
circumvent it by merely designating, and not appointing, a relative within the prohibited degree to a vacant
position in the career service. Indeed, as correctly stated by public respondent, "what cannot be done directly
cannot be done indirectly." 13 (Emphasis partly in the original and partly supplied; citation omitted)

Thus, the Court was unwilling to restrict and limit the scope of the prohibition which is textually very broad and
comprehensive.

One of the contentions of petitioner in the case at bar is that the ratio of the prohibition against nepotism is not applicable here
because petitioner Victoria was already in the government service at the time petitioners were married in 1964. It is not disputed
that the original 1961 appointment of petitioner Victoria as an Assistant License Clerk was not a nepotic appointment. Indeed,
Section 59 itself states, in the 4th paragraph thereof, that the prohibition against nepotism is not

applicable to the case of a member of any family who, after his or her appointment  to any position in any office
or bureau, contracts marriage with someone in the same office or bureau, in which event the employment or
retention therein of both husband and wife may be allowed. (Emphasis supplied)

The subsequent marriage of one to the other of petitioners did not retroactively convert the original appointment of
petitioner Victoria into a prohibited nepotic one. It is the promotional appointment issued by petitioner Mayor to
petitioner Victoria in 1 October 1982 that is at stake.

Here, the basic argument of petitioners is that to read the prohibition in Section 59, Book V of E.O. No. 292 as applicable both to
original and promotional or subsequent appointments, would be to deprive the government of the services of loyal and faithful
employees who would thereby be penalized simply because the appointing or recommending official happens to be related to
the employees within the third degree of consanguinity or affinity.

A major difficulty with the petitioners' argument is that it tends to prove too much. For the appointee, whether in an original or a
promotion appointment, may in fact be quite loyal and efficient and hard-working; yet that circumstance will not prevent the
application of the prohibition certainly in respect of the original appointment. The Court is not unaware of the difficulties that the
comprehensive prohibition against nepotism would impose upon petitioner Victoria and others who maybe in the same position.
It is essential to stress, however, that the prohibition applies quite without regard to the actual merits of the proposed
appointee and to the good intentions of the appointing or recommending authority, and that the prohibition against nepotism in
appointments whether original or promotional, is not intended by the legislative authority to penalize faithful service.

The purpose of Section 59 which shines through the comprehensive and unqualified language in which it was cast and has
remained for decades, is precisely to take out of the discretion of the appointing and recommending authority the matter of
appointing or recommending for appointment a relative. In other words, Section 59 insures the objectivity of the appointing or
recommending official by preventing that objectivity from being in fact tested. The importance of this statutory objective is difficult
to overstress in the culture in which we live and work in the Philippines, where family bonds remain, in general, compelling and
cohesive.

The conclusion we reach is that Section 59, Book V, E.O. No. 292 means exactly what it says in plain and ordinary language: it
refers to "all appointments" whether original or promotional in nature. The public policy embodied in Section 59 is clearly
fundamental in importance, and the Court has neither authority nor inclination to dilute that important public policy by introducing
a qualification here or a distinction there.

It follows that the promotional appointment of petitioner Victoria by her husband, petitioner Mayor, falls within the prohibited
class of appointments: the prohibited relationship between the appointing authority (petitioner Mayor) and the appointee (wife
Victoria) existed at the time the promotional appointment was issued. It is scarcely necessary to add that the reasons which may
have moved petitioner Mayor to issue the prohibited appointment are, as a matter of law, not relevant in this connection. 14

II

We turn to the second issue where petitioners contend that when the promotional appointment of petitioner Victoria was
approved by Director Escobia, CSC Field Office, Bacolod City, that appointment become complete. When petitioner Victoria took
her oath of office and commenced the discharge of the duties of a General Services Officer, she acquired a vested right to that
position and cannot, according to petitioners, be removed from that position without due process of law.

This argument misconceives the nature of the action taken by the respondent Commission. That action was not the imposition of
an administrative disciplinary measure upon petitioner Victoria, nor upon petitioner Mayor. There were no administrative charges
PoliRev Cases 1
in respect of which petitioner Victoria would have been entitled to notice and hearing. The Commission, in approving or
disapproving an appointment, only examines the conformity of the appointment with applicable provisions of law and whether
the appointee possesses all the minimum qualifications and none of the disqualifications. At all events, as the Solicitor General
has noted, petitioner Victoria was afforded an opportunity to be heard when she filed a motion for reconsideration with the
Commission and there challenged the disapproval by the Commission.

The action of the Commission was, in other words, taken in implementation of Section 59, Book V, E.O. No. 292 and the
relevant Implementing Regulations. Because the promotional appointment in favor of petitioner Victoria was a violation of
Section 59, it was null and void as being contra legem. Section 9 of Rule V of the Omnibus Implementing Regulations sets out
the principal legal consequence of an appointment issued in disregard of the statutory prohibition:

Sec. 9. An appointment accepted by the appointee cannot be withdrawn or revoked by the appointing authority
and shall remain in force and effect until disapproved by the Commission. However, an appointment may be
void from the beginning due to fraud on the part of the appointee or because it was issued in violation of law.
(Emphasis supplied)

A void appointment cannot give rise to security of tenure on the part of the holder of such appointment.

The Commission is empowered to take appropriate action on all appointments and other personnel actions, e.g.,
promotions. 15 Such power includes the authority to recall an appointment initially approved in disregard of applicable provisions
of Civil Service law and regulations. Section 20 of Rule VI of the Omnibus Implementing Rules makes this clear:

Sec. 20. Notwithstanding the initial approval of an appointment, the same may be recalled on any of the
following grounds:

(a) Non-compliance with the procedures/criteria provided in the agency's Merit Promotion Plan;

(b) Failure to pass through the agency's Selection/Promotion Board;

(c) Violation of the existing collective agreement between management and employees relative to promotion; or

(d) Violation of other existing civil service law, rules and regulations. (Emphasis supplied).

The recall or withdrawal by the Commission of the approval which had been issued by one of its Field Officers, Director Escobia,
was accordingly lawful and appropriate, the promotional appointment of petitioner Victoria being void "from the beginning." The
approval issued by Director Escobia did not, as it could not, cure the intrinsic vice of that appointment.

We conclude, in respect of the second issue, that petitioners have not shown any grave abuse of discretion, amounting to lack of
excess of jurisdiction on the part of respondent Commission.

Petitioners have also complained that the letter of Congressman Carmona which had precipitated action on the part of
respondent Commission, was not a verified letter. They contend that the Commission could not or should not have acted upon
the charges raised in that letter.

We are not aware of any law or regulation requiring the letter written by the Congressman to be subscribed under oath before
the Commission could act thereon. Under its own rules and regulations, the Commission may review motu proprio  personnel
actions involving the position of a Division Chief or above, such as the position of General Services Officer. 16 We hold that the
respondent Commission had authority, indeed the duty, to recall on its own initiative the erroneous initial approval of the
promotional appointment extended to petitioner Victoria, and to review the same de novo.

WHEREFORE, for all the foregoing, the Petition for Certiorari must be DISMISSED for lack of merit. No pronouncement as to
costs.

SO ORDERED.
PoliRev Cases 1
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 92403 April 22, 1992

VICTOR A. AQUINO, petitioner,
vs.
CIVIL SERVICE COMMISSION and LEONARDA D. DE LA PAZ, respondents.

MEDIALDEA, J.:

This petition for certiorari with prayer for the issuance of a restraining order seeks to nullify the resolutions issued by the
respondent Civil Service Commission, namely: (1) Resolution No. 88-820 dated November 7, 1988 reversing the decision of the
Merit Systems Protection Board dated February 5, 1988 which sustained the decision of the Secretary of Education, Culture and
Sports dated May 4, 1987 upholding the appointment of Mr. Victor A. Aquino as Supply Officer I in the DECS, Division of San
Pablo City; and (2) Resolution No. 90-224 dated February 27, 1990 denying the motion for reconsideration with prayer for
issuance of temporary restraining order for lack of merit.

The antecedent facts are as follows:

Petitioner Victor A. Aquino, then holding the position of Clerk II, Division of City Schools of San Pablo City, was designated on
July 20, 1984 as Officer-in-Charge of the Division Supply Office by the DECS Regional Director Saturnino R. Magturo (Annex
"H", petition, p. 55, Rollo) in view of the retirement of the Supply Officer I, Mr. Jose I. Aviquivil.

Prior to such designation, or from the period February 16, 1984 to June 16, 1984, petitioner was designated as Property
Inspector and In-Charge of the Supply Office performing the duties and responsibilities of the Supply Officer I (p. 55, Rollo).

Two (2) years thereafter, or on September 19, 1986, the Division Superintendent of City Schools of San Pablo City, Milagros
Tagle, issued a promotional appointment to private respondent Leonarda D. de la Paz as Supply Officer I in the DECS Division
of San Pablo City. She assumed and performed the duties and functions of the position and received the compensation and
benefits therefor.

At the time of her appointment, private respondent was then holding the position of Clerk II, Division of City Schools of San
Pablo City. From August 25, 1976 to September 1983, she was designated as Assistant to the Supply Officer (DECS decision,
p. 31, Rollo). The Civil Service Regional Office IV approved her appointment as permanent "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" (Annex "A", Comment of CSC, p 164, Rollo).

One (1) month after, or on October 20, 1986 petitioner filed a protest with the DECS Secretary questioning the qualification and
competence of private respondent for the position of Supply Officer I.

In a decision dated May 4, 1987, DECS Secretary Lourdes R. Quisumbing sustained the protest of petitioner and revoked the
appointment of private respondent as Supply Officer I thus:

From the foregoing comparative statement of the qualifications of Mr. Aquino and Mrs. de la Paz, apparently
the former has a decided advantage over the latter in terms of education, experience and training. Further
examination of the comparative statement shows that Mrs. de la Paz has had no relevant in-service training
course attended and completed. Accordingly, therefore, Mr. Aquino is preferred to Mrs. de la Paz for
appointment as Supply Officer I.

x x x           x x x          x x x

Based on all the foregoing and as records further show that Mr. Aquino is competent and qualified to hold the
subject position and possesses the eligibility requirement, this Office finds the instant protest meritorious and
hereby rules and so rules that Mr. Aquino be appointed Supply Officer I in place of Mrs. de la Paz, whose
appointment thereto is deemed revoked. (p. Annex "C", pp. 30-31, Rollo)

Private respondent then filed her petition for reconsideration of the aforequoted DECS decision but the same was denied by
Secretary Quisumbing in a Resolution dated August 11, 1967.

On the bases of the aforementioned rulings of the DECS Secretary, petitioner Aquino was issued a permanent appointment
dated August 11, 1987 as Supply Officer I by the DECS Regional Director Pedro San Vicente effective October 26, 1987. On the
date of effectivity of his appointment, petitioner assumed the duties and functions of the position. The said appointment was
approved by the Civil Service Regional Office IV on October 27, 1987.
PoliRev Cases 1
For her part, private respondent de la Paz filed on October 16, 1987 a notice of appeal with motion to maintain status quo  to the
Merit Systems Protection Board (MSPB) which, on February 5, 1988, rendered a decision upholding the appointment of Aquino
as Supply Officer I (Annex "D", petition pp. 33-35, Rollo).

From the decision of the MSPB, private respondent appealed to public respondent Civil Service Commission (CSC).

In Resolution No, 88-820 dated November 7, 1988, public respondent CSC found the appeal of private respondent meritorious,
thus revoking the appointment of petitioner Aquino and restoring private respondent de la Paz to her position as Supply Officer I,
DECS, Division of San Pablo City under her previously approved appointment (Annex "B", petition, pp. 26-29, Rollo).

From said decision, petitioner filed a motion for reconsideration with prayer for issuance of a temporary restraining order. Finding
no merit to the motion for reconsideration filed by petitioner, public respondent CSC issued Resolution No. 90-224 dated
February 27, 1990 denying said motion (Annex "A", petition, pp. 21- 24, Rollo).

Hence, this petition seeking the reversal of public respondent Commission's action on petitioner's appointment.

Two (2) interrelated issues on the extent of authority of the Civil Service Commission to pass upon the contested appointments
were raised by petitioner which could be simplified into whether or not public respondent Civil Service Commission committed
grave abuse of discretion in revoking the appointment of petitioner Victor A. Aquino as Supply Officer I in the DECS Division of
San Pablo City as it found private respondent Leonarda de la Paz better qualified.

In assailing the two (2) CSC Resolutions revoking his appointment, petitioner invokes the ruling of this Court in the case
of Santiago v. Civil Service Commission, G.R. No. 81467, October 27, 1989, 178 SCRA 733 and Galura v.  Civil Service
Commission, G.R. 85812, June 1, 1989 (En Banc resolution) that the Civil Service Commission has no authority to revoke an
appointment on the ground that another person is more qualified for a particular position for that would have constituted an
encroachment on the discretion vested solely in the appointing authority. The Civil Service Commission cannot exceed its power
by substituting its will for that of the appointing authority.

In support of petitioner's cause, the Solicitor General stresses the wide latitude of discretion given to the appointing authority in
the selection and appointment of qualified persons to vacant positions in the civil service which was emphasized by the Court as
rationale for the rule laid down in Luego v.  Civil Service Commission, G.R. No. 69137, August 5, 1986, 143 SCRA 327, Central
Bank v.  CSC, G.R. No. 80455-56, April 10, 1989, 171 SCRA 744, Patagoc v.  CSC, G.R. No. 90229, May 14, 1990, 185 SCRA
411, that public respondent CSC, not being the "appointing power" in contemplation of law, has no authority to revoke an
appointment on the ground that another person is more qualified for a particular position and that the Commission has no
authority to direct the appointment of a substitute of its choice.

We have consistently applied the above doctrine in many cases with similar factual circumstances, but we see no compelling
reason to apply the same in the instant case. In the cases cited above, We ruled that the Civil Service Commission has no
authority to revoke an appointment simply because it (CSC) believed that another person is better qualified than the appointee
for it would constitute an encroachment on the discretion solely vested on the appointing authority. The situation is different as in
the instant case, where  the Civil Service Commission revoked  the appointment of the successful protestant, petitioner herein,
principally because the right to security of tenure of the prior appointee, private respondent herein, to the contested position had
already attached (see CSC decision, pp. 28-29, Rollo). It must be noted that public respondent CSC did not direct the
appointment of a substitute of its choice. It merely restored the appointment of private respondent who was first appointed to the
contested position.

The records show that private respondent was issued a permanent appointment on September 19, 1986 as Supply Officer I in
the DECS Division of San Pablo City effective September 30, 1986. On the basis of the of said appointment which was
approved by the Civil Service Regional Office No. IV, private respondent assumed and performed the duties and functions of the
position as Supply Officer I and received the compensation and benefits of the said position in accordance with the mandate of
Section 9 par.(h) of the Civil Service Law (P.D. 807, as amended). In consonance with the doctrine laid down in Villanueva
v.  Balallo, G.R. No. L-17745, October 31, 1963, 9 SCRA 407, that an appointment is complete when the last act required of the
appointing power has been performed, but later qualified in Favis v.  Rupisan, G.R. No. L-22823, May 19, 1966, 17 SCRA 190,
that the acts of the head of a department or office making the appointment and the Commissioner of Civil Service acting
together, though not concurrently, but consecutively, are necessary to make an appointment complete, the permanent
appointment extended to private respondent, under the circumstances of the case, is deemed complete. As such, she is entitled
to the protection of the law against unjust removal.

The conclusion of respondent Commission in the questioned decision that private respondent is more qualified than petitioner
merely supports the validity of the restoration of private respondent to her previously approved appointment considering that she
meets the prescribed qualification standards required of the position of Supply Officer I and the appropriate civil service
eligibility, to wit:

EDUCATION: Bachelor's degree with training in Supply Management

EXPERIENCE: None required
ELIGIBILITY: Supply Officer; Career Service (Professional)

It is well-settled that once an appointment is issued and the moment the appointee assumes a position in the civil service under
a completed appointment, he acquires a legal, not merely equitable right (to the position), which is protected not only by statute,
but also by the Constitution, and cannot be taken away from him either by revocation of the appointment, or by removal, except
for cause, and with previous notice and hearing (Mitra v. Subido, G.R No. L-21691, September 15, 1967, 21 SCRA 127.

There is also authority for the rule that when the appointing power has once acted and the appointee has accepted  the office
and done what is required of him upon its acceptance, his title to the office becomes complete, and he can then be removed
PoliRev Cases 1
only in the regular way (Mechem, Law of Public Offices and Officers, Sec. 461, p. 294, citing Marbury v. Madison, 1 Cranch
(U.S.) 137). The appointing power can not effect his removal indirectly by rescinding or revoking his appointment after it is
complete.

There is thus reasonable ground for the rule that the moment the discretionary power of appointment has been exercised and
the appointee assumed the duties and functions of the position, the said appointment cannot be revoked by the appointing
authority on the ground merely that the protestant is more qualified than the first appointee, subject however to the condition that
the first appointee should possess the minimum qualifications required by law. Otherwise, the security of tenure guaranteed by
Article IX-B, Section 2 par. (3) of the 1987 Constitution would be rendered meaningless if the appointing authority is allowed to
flip-flop in exercising its discretionary power of appointment.

While a protest is a made of action that may be availed of by the aggrieved party to contest the appointment made, the protest
must be "for cause" or predicated on those grounds provided for under Section 19 par. (6) of the Civil Service Law (P.D. 807),
namely: (1) that the appointee is not qualified; (2) that the appointee is not the next-in-rank; and (3) in case of appointment by
transfer, reinstatement, or by original appointment, that the protestant is not satisfied with the written special reason or reasons
given by the appointing authority.

We have defined the concept of "for cause" in connection with removal of public officers in the case of De los Santos v.  Mallare,
G.R. No. L-3881, August 31, 1950, 87 Phil. 289, as follows: "It means for reasons which the law and sound public policy
recognized as sufficient warrant for removal, that is legal cause, and not merely causes which the appointing power in the
exercise of discretion may deem sufficient. It is implied that officers may not be removed at the mere will of those vested with the
power of removal, or without any cause. Moreover, the cause must relate to and affect the administration of the office, and must
be restricted to something of a substantial nature directly affecting the rights and interests of the public."

The ground relied upon by petitioner in his protest that he is more qualified than private respondent in terms of education,
experience and training does not fall within the meaning of "for cause" contemplated by Article IX-B, Section 2 par. (3) of the
1987 Constitution which would warrant the revocation, if not removal, of the appointment of private respondent. Neither does it
fall under the grounds of appeal contemplated under Section 19 par. (6) of the Civil Service Law (P.D. 807). Therefore, the
protest of petitioner did not adversely affect the approval of the appointment of private respondent.

Even on the assumption that the revocation of private respondent's appointment was validly exercised by DECS Secretary
Quisumbing, still the appointment extended to petitioner was tainted with irregularity as it was issued before the finality of the
decision on the protest in violation of CSC Resolution No. 83-343 which prohibits the issuance of an appointment to protestant
(petitioner) if the protest case is not yet finally resolved, since there is no vacancy in the position pending resolution of the
protest case. There can be no appointment to a non-vacant position. The incumbent must first be legally removed or his
appointment validly terminated (Costin v. Quimbo, G.R. No. L-32271, January 27, 1983, 120 SCRA 159). An appointment to an
office which is not vacant is null and void  ab initio (Morata v. Court of Appeals, G.R. No. L-18975, May 25, 1964, 11 SCRA 42).

CSC Resolution No. 83-343 provides, thus:

An appointment though contested shall take effect immediately upon issuance if the appointee assumes the
duties of the position and (the) appointee is entitled to receive the salary attached to the position. Likewise such
appointment shall become ineffective in case the protest is finally resolved in favor of the protestant, in which
case the protestee shall be reverted to his former position. (p. 223, Rollo)

Records reveal that the decision of the DECS Secretary revoking the appointment of private respondent was rendered on May
4, 1987 and the motion for reconsideration filed by private respondent was denied on August 11, 1987. The appointment issued
to petitioner as Supply Officer I was dated August 11, 1987 and he assumed the position on October 26, 1987 (date of effectivity
of his appointment) as reported by the Schools Division Superintendent of San Pablo City (pp. 77-78, Rollo). From all
indications, the appointment of petitioner dated August 11, 1987 was issued with undue haste before the finality of the denial of
the motion for reconsideration.

While it is true that the appointing authority has a wide latitude of discretion in making his choice in the selection and
appointment of qualified persons to vacant positions in the civil service, we cannot, however, give a stamp of approval to such a
procedural irregularity in extending appointments, as in the instant case, to the prejudice of the right to security of tenure of the
incumbent to the position.

ACCORDINGLY, the petition is DENIED. The decision dated May 4, 1987 and the resolution dated August 11, 1987 of the
respondent Civil Service Commission are hereby AFFIRMED. The Secretary of the Department of Education, Culture and
Sports is hereby directed to restore private respondent Leonarda de la Paz to her previously approved appointment as Supply
Officer I, DECS, Division of San Pablo City.

SO ORDERED.
PoliRev Cases 1
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. NO. L-69137 August 5, 1986

FELIMON LUEGO, petitioner-appellant,
vs.
CIVIL SERVICE COMMISSION and FELICULA TUOZO, respondents-appellees.

Jose Batiquin for petitioner-appellant.

Fausto F. Tugade for private respondent-appellee.

CRUZ, J.:

Stripped of irrelevant details and impertinent incidents that have cluttered the voluminous record, the facts of this case may be
briefly narrated as follows:

The petitioner was appointed Administrative Officer 11, Office of the City Mayor, Cebu City, by Mayor Florentino Solon on
February 18, 1983. 1 The appointment was described as permanent" but the Civil Service Commission approved it as
"temporary," subject to the final action taken in the protest filed by the private respondent and another employee, and provided
"there (was) 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." 2 On March 22, 1984, after protracted
hearings the legality of which does not have to be decided here, the Civil Service Commission found the private respondent
better qualified than the petitioner for the contested position and, accordingly, directed "that Felicula Tuozo be appointed to the
position of Administrative Officer 11 in the Administrative Division, Cebu City, in place of Felimon Luego whose appointment as
Administrative Officer II is hereby revoked."3 The private respondent was so appointed on June 28, 1984, by the new mayor,
Mayor Ronald Duterte. 4 The petitioner, invoking his earlier permanent appointment, is now before us to question that order and
the private respondent's title.

The issue is starkly simple: Is the Civil Service Commission authorized to disapprove a permanent appointment on the ground
that another person is better qualified than the appointee and, on the basis of this finding, order his replacement by the latter?

The Solicitor General, rather than face the question squarely, says the petitioner could be validly replaced in the instant case
because his appointment was temporary and therefore could be withdrawn at will, with or without cause. Having accepted such
an appointment, it is argued, the petitioner waived his security of tenure and consequently ran the risk of an abrupt separation
from his office without violation of the Constitution. 5

While the principle is correct, and we have applied it many times, 6 it is not correctly applied in this case. The argument begs the
question. The appointment of the petitioner was not temporary but permanent and was therefore protected by Constitution. The
appointing authority indicated that it was permanent, as he had the right to do so, and it was not for the respondent Civil Service
Commission to reverse him and call it temporary.

The stamping of the words "APPROVED as TEMPORARY" did not change the character of the appointment, which was clearly
described as "Permanent" in the space provided for in Civil Service Form No. 33, dated February 18, 1983. 7 What was
temporary was the approval of the appointment, not the appointment it sell And what made the approval temporary was the fact
that it was made to depend on the condition specified therein and on the verification of the qualifications of the appointee to the
position.

The Civil Service Commission is not empowered to determine the kind or nature of the appointment extended by the appointing
officer, its authority being limited to approving or reviewing the appointment in the light of the requirements of the Civil Service
Law. When the appointee is qualified and authorizing the other legal requirements are satisfied, the Commission has no choice
but to attest to the appointment in accordance with the Civil Service Laws.

As Justice Ramon C. Fernandez declared in an earlier case:

It is well settled that the determination of the kind of appointment to be extended lies in the official vested by
law with the appointing power and not the Civil Service Commission. The Commissioner of Civil Service is not
empowered to determine the kind or nature of the appointment extended by the appointing officer. When the
appointee is qualified, as in this case, the Commissioner of Civil Service has no choice but to attest to the
appointment. Under the Civil Service Law, Presidential Decree No. 807, the Commissioner is not authorized to
curtail the discretion of the appointing official on the nature or kind of the appointment to be extended. 8

Indeed, the approval is more appropriately called an attestation, that is, of the fact that the appointee is qualified for the position
to which he has been named. As we have repeatedly held, such attestation is required of the Commissioner of Civil Service
merely as a check to assure compliance with Civil Service Laws. 9

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
PoliRev Cases 1
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.

It is different where the Constitution or the law subjects the appointment to the approval of another officer or body, like the
Commission on Appointments under 1935 Constitution. 10 Appointments made by the President of the Philippines had to be
confirmed by that body and could not be issued or were invalidated without such confirmation. In fact, confirmation by the
Commission on Appointments was then considered part of the appointing process, which was held complete only after such
confirmation. 11

Moreover, the Commission on Appointments could review the wisdom of the appointment and had the power to refuse to concur
with it even if the President's choice possessed all the qualifications prescribed by law. No similar arrangement is provided for in
the Civil Service Decree. On the contrary, the Civil Service Commission is limited only to the non-discretionary authority of
determining whether or not the person appointed meets all the required conditions laid down by the law.

It is understandable if one is likely to be misled by the language of Section 9(h) of Article V of the Civil Service Decree because it
says the Commission has the power to "approve" and "disapprove" appointments. Thus, it is provided therein that the
Commission shag have inter alia the power to:

9(h) Approve all appointments, whether original or promotional to positions in the civil service, except those
presidential appointees, members of the Armed Forces of the Philippines, police forces, firemen, and
jailguards, and disapprove those where the appointees do not possess appropriate eligibility or required
qualifications. (emphasis supplied)

However, a full reading of the provision, especially of the underscored parts, will make it clear that all the Commission is actually
allowed to do is check whether or not the appointee possesses the appropriate civil service eligibility or the required
qualifications. If he does, his appointment is approved; if not, it is disapproved. No other criterion is permitted by law to be
employed by the Commission when it acts on--or as the Decree says, "approves" or "disapproves" an appointment made by the
proper authorities.

Significantly, the Commission on Civil Service acknowledged that both the petitioner and the private respondent were qualified
for the position in controversy. 12 That recognition alone rendered it functus officio in the case and prevented it from acting
further thereon except to affirm the validity of the petitioner's appointment. To be sure, it had no authority to revoke the said
appointment simply because it believed that the private respondent was better qualified for that would have constituted an
encroachment on the discretion vested solely in the city mayor.

In preferring the private respondent to the petitioner, the Commission was probably applying its own Rule V, Section 9, of Civil
Service Rules on Personnel Actions and Policies, which provides that "whenever there are two or more employees who are
next-in-rank, preference shall be given to the employee who is most competent and qualified and who has the appropriate civil
service eligibility." This rule is inapplicable, however, because neither of the claimants is next in rank. Moreover, the next-in-rank
rule is not absolute as the Civil Service Decree allows vacancies to be filled by transfer of present employees, reinstatement, re-
employment, or appointment of outsiders who have the appropriate eligibility. 13

There are apparently no political overtones in this case, which looks to be an honest contention between two public functionaries
who each sincerely claims to be entitled to the position in dispute. This is gratifying for politics should never be permitted to
interfere in the apolitical organization of the Civil Service, which is supposed to serve all the people regardless of partisan
considerations. This political detachment will be impaired if the security of tenure clause in the Constitution is emasculated and
appointments in the Civil Service are revoked and changed at will to suit the motivations and even the fancies of whatever party
may be in power.

WHEREFORE, the resolution of the respondent Commission on Civil Service dated March 22, 1984, is set aside, and the
petitioner is hereby declared to be entitled to the office in dispute by virtue of his permanent appointment thereto dated February
18, 1983. No costs.

SO ORDERED.
PoliRev Cases 1
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 104639 July 14, 1995

PROVINCE OF CAMARINES SUR through its GOVERNOR, SANGGUNIANG PANLALAWIGAN and PROVINCIAL
TREASURER, petitioner,
vs.
COURT OF APPEALS and TITO B. DATO, respondent.

KAPUNAN, J.:

Petitioner Province of Camarines Sur assails the decision of the Court of Appeals which affirmed with modification the Regional
Trial Court of Camarines Sur's decision ordering it to pay private respondent Tito Dato backwages and attorney's fees.

The relevant antecedents are as follows:

On January 1, 1960, private respondent Tito Dato was appointed as Private Agent by the then governor of Camarines Sur,
Apolonio Maleniza.

On October 12, 1972, he was promoted and was appointed Assistant Provincial warden by then Governor Felix Alfelor, Sr.
Because he had no civil service eligibility for the position he was appointed to, private respondent Tito Dato could not be legally
extended a permanent appointment. Hence, what was extended to him was only a temporary appointment. Thereafter, the
temporary appointment was renewed annually.

On January 1, 1974, Governor Alfelor approved the change in Dato's employment status from temporary to permanent upon the
latter's representation that he passed the civil service examination for supervising security guards. Said change of status
however, was not favorably acted upon by the Civil Service Commission (CSC) reasoning that Tito Dato did not possess the
necessary civil service eligibility for the office he was appointed to. His appointment therefore remained temporary.

Thereafter, no other appointment was extended to him.

On March 16, 1976, private respondent Tito Dato was indefinitely suspended by Governor Alfelor after criminal charges were
filed against him and a prison guard for allegedly conniving and/or consenting to evasion of sentence of some detention
prisoners who escaped from confinement.

On March 19, 1976, or two years after the request for change of status was made, Mr. Lope B. Rama, head of the Camarines
Sur Unit of the Civil Service Commission, wrote the Governor of Camarines Sur a letter informing him that the status of private
respondent Tito Dato has been changed from temporary to permanent, the latter having passed the examination for Supervising
Security Guard. The change of status was to be made retroactive to June 11, 1974, the date of release of said examination.

In the meantime, the Sangguniang Panlalawigan, suppressed the appropriation for the position of Assistant Provincial Warden
and deleted private respondent's name from the petitioner's plantilla.

Private respondent Tito Dato was subsequently acquitted of the charges against him. Consequently, he requested the Governor
for reinstatement and backwages.

When his request for reinstatement and backwages was not heeded, private respondent Tito Dato filed an action
for mandamus before the Regional Trial Court of Pili, Camarines Sur, Branch 31.

On May 31, 1991, the trial court 1 rendered judgment, the decretal portion of which reads:

WHEREFORE, judgment is hereby rendered, ordering the respondents:

1) to appropriate and pay the back salaries of the petitioner Tito B. Dato equivalent to five (5) years without
qualification or deduction, at the rate of P14,532.00  per annum, with all the rights and privileges that he is
entitled to as a regular government employee reaching the age of 65 in the government service, as provided by
law;

2) to pay the petitioner the sum of P5,000.00 as attorney's fees; and

3) to pay the costs.

SO ORDERED.2
PoliRev Cases 1
In due course, petitioner Province of Camarines Sur appealed the said decision to the Court of Appeals.

On February 20, 1992, respondent Court of Appeals rendered its decision which dispositively reads as follows:

WHEREFORE, in view of all the foregoing, judgment appealed from is hereby AFFIRMED with the following
modifications: (1) respondents are ordered to pay the backwages of petitioner Tito B. Dato during the entire
period of his suspension, with all the rights and privileges that he is entitled to as a regular government
employee reaching the age of 65 in the government service, as provided by law; and (2) the award of the sum
of P5,000 to petitioner as attorney's fees and respondents to pay the costs of suit is deleted.

IT IS SO ORDERED.3

Aggrieved by the foregoing ruling, petitioner Province of Camarines Sur interposed the present petition submitting that the
respondent court erred in (a) affirming the trial court's finding that private respondent Tito Dato was its permanent employee at
the time he was suspended on March 16, 1976; and (b) modifying the said decision so as to allow private respondent to claim
backwages for the entire period of his suspension.

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 on March 16, 1976.

Petitioner contends that when Governor Alfelor recommended to CSC the change in the employment status of private
respondent from temporary to permanent, which the CSC approved as only temporary  pending validation of the results of
private respondent's examination for supervising security guard, private respondent's appointment in effect remained temporary.
Hence, his subsequent qualification for civil service eligibility did not ipso facto  convert his temporary status to that of
permanent.

Private respondent, on his part, vigorously asseverates that the respondent court committed no error in confirming his
appointment as permanent.

We agree with the petitioner.

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 temporary4 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 not ipso 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. The letter, which is self-explanatory, is reproduced in full below:

XXXXXXXXXXXX
CAMARINES SUR UNIT
Naga City

Re: DATO, Tito
— Appointment of

March 19, 1976

The Honorable
The Provincial Governor of Camarines Sur
Naga City.

Sir:

This refers to the latest approved appointment of Mr. TITO DATO as Asst. Provincial Warden, this province, at
P3600, effective January 1, 1974 which was approved by this Office as temporary pending validation of his
Supervising Security Guard eligibility.

It appears, however, that the aforementioned eligibility of Mr. Dato was released on June 11, 1974. In this
connection, attention is being invited to Sec. 19, Rule III of the Rules on Personnel Action and Policies which
provides that "Eligibility resulting from civil service examination . . . shall be effective on the date on the release
of the results of the examination. . . ." (Emphasis supplied.) Mr. Dato's Supervising Security Guard eligibility,
therefore, takes effect June 11, 1974, the date the results thereof was released.

In view thereof, the aforementioned appointment of Mr. Dato is hereby approved anew as follows:
"APPROVED as temporary under Sec. 24 (c), R.A. 2260, as amended, effective January 1, 1974 up to June
10, 1974 and as permanent under Sec. 24 (b), R.A. 2260, as amended, subject to the report on his physical
PoliRev Cases 1
and medical examination as to insurability, effective June 11, 1974. The Supervising Security Guard eligibility
of Mr. Dato has been validated by the Civil Service Commission, Quezon City.

The records of Mr. Dato in this Office have been amended accordingly.

Very truly yours,

By authority of the
Commission.

(Initialed)
LOPE B. RAMA
Unit Head8

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 to approve 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 temporary status 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.

WHEREFORE, premises considered, the appealed decision is hereby REVERSED and the petition for mandamus instituted by
herein private respondent Tito Dato is hereby DISMISSED.

SO ORDERED.
PoliRev Cases 1
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 93064 June 22, 1992

AGUSTINA G. GAYATAO, petitioner,
vs.
CIVIL SERVICE COMMISSION and BAYANI I. FERNANDEZ, respondents.

REGALADO, J.:p

This special civil action for certiorari impugns the resolution promulgated on October 5, 1989 in CSC Case No. 418 of
respondent Civil Service Commission revoking the appointment of petitioner as Customs Operations Chief of the Export Division
at the Ninoy Aquino International Airport and directing the Commissioner of Customs to appoint private respondent in her stead,
as well as its resolution of April 10, 1990 denying petitioner motion for reconsideration.

Private respondent Bayani I. Fernandez was holding the position of Customs Operations Chief I (COC) in the Bureau of
Customs since March 5, 1984 in a permanent capacity. 1 He was assigned to the aircraft Operations Division. On October 15,
1987, per Customs Personnel Order (CPO) No. C-152-87 issued by Commissioner Salvador M. Mison, he was reassigned as
Acting Chief of the Export Division at the Ninoy Aquino International Airport (NAIA) Customhouse. 2

On February 15, 1988, Commission Mison, purportedly acting pursuant to Executive Order No. 127 implementing the
reorganization of the Department of Finance, Bureau of Customs, appointed petitioner Agustina G Gayatao, then a Supervising
Customs Trade Examiner, to the position of Customs Operations Chief at the NAIA Customhouse, effective March 1,
19883 Thereafter, in CPO No. B-27-88 dated March 3, 1988, petitioner was designated as COC of the Export Division at NAIA,
while private respondent was designated as Customs Operations Assistant Chief (COAC) of the Aircraft Operations Division,
both designations being effective March 1, 1988.4

Aggrieved by the actions of said commissioner, private respondent filed a letter of protest on May 18,1988 before the Merit
System Protection Board of respondent Civil Service Commission (CSC) questioning the appointment of petitioner as COC and
his demotion to the position of COAC. In assailing the action of the appointing authority, private respondent alleged in substance
that (1) he was unjustifiably demoted since he had been holding the contested position prior to the reorganization; and (2) he is
more qualified than herein petitioner.5

Commenting thereon in an undated 4th Indorsement, the Commissioner of Customs alleged that the aforestated appointment of
petitioner is "non-protestable, at having been done pursuant to Executive Order No 127, . . . 6

On October 5, 1989, respondent commission promulgated the challenged resolution mentioned at the start of this opinion, with
the following dispositive portion:

WHEREFORE, premises considered, the appointment of appellee Atty. Gayatao as Customs Operations Chief
is hereby revoked. Accordingly, the Commissioner, Bureau of Customs is hereby directed to appoint appellant
Fernandez in her stead.7

On October 30, 1987, petitioner filed a request for reconsideration of the questioned resolution, 8 but the same was denied by the
CSC in its resolution dated April 10, 1990.9 Disagreeing with the aforementioned resolutions, petitioner filed the instant petition
for certiorari  with prayer for preliminary injunction.

Public respondent CSC filed its comment to the petition on August 27, 1990 10 while private respondent Fernandez did likewise
on August 23, 199011 After some preliminary pleadings and exchanges, on September 25, 1990 the Solicitor General filed a
manifestation in lieu of comment, recommending the grant of the petition and the annulment of the questioned resolutions of
public respondent.

In our resolution of November 6, 1990,12 we required respondent CSC to comment on the manifestation in lieu of comment filed
by the Solicitor General, which it did on October 15, 1991 13 and subsequently amplified on October 18, 1991 with a
supplemental comment .14

On November 12, 1991, we resolved to give due course to the petition, with the parties filing their respective memoranda, 15 the
last of which was filed by the Solicitor General on February 12, 1992.

The focal issue raised for resolution in this petition is whether respondent commission committed grave abuse of discretion in
revoking the appointment of petitioner and ordering the appointment of private respondent in her place.

Petitioner takes the position that public respondent has no authority to revoke her appointment on the ground that another
person is more qualified, for that would constitute an encroachment on the discretion vested solely in the appointing authority. In
support of said contention, petitioner cites the case of Central Bank of the Philippines, et al. vs. Civil Service Commission, et
PoliRev Cases 1
al., 16 where we ruled that under the Civil Service Decree (Presidential Decree No. 807), the authority of the CSC is limited to
approving or renewing an appointment in the light of the requisites of the law governing the civil service. The CSC has no
authority to revoke an appointment on the ground that another person is more qualified for a particular position. It will be in
excess of its power if it substitutes its will for that of the appointing authority. The CSC not being the "appointing power" in
contemplation of law, cannot direct the appointment of a substitute of its choice

We have no quarrel with the validity of the aforesaid doctrines but we cannot sustain petitioner's theory and submissions in this
case premised on said doctrinal rules.

The doctrine laid down in he cited case finds no determinant application in the case at bar. A reading of the questioned
resolution of respondent commission readily shows that the revocation of the appointment of petitioner was based primarily on
its finding that the said appointment was null and void by reason of the fact that it resulted in the demotion of private respondent
without lawful cause in violation of the latter's security of tenure. The advertence of the CSC to the fact that private respondent is
better qualified than petitioner was merely to lend further support to its stand that the removal of private respondent was unlawful
and tainted with bad faith and that his reinstatement to his former position is imperative and justified.

We quote the pertinent portion of said resolution:

After a careful perusal of the records of the case, the Commission finds the appeal meritorious, Records will
show that prior to the reorganization, appellant was already holding the position of Customs Operations Chief I
since March 1984. His reappointment to the position of Customs Operation Assistant Chief is therefore a clear
demotion of rank and position. The Commission finds no sufficient justifiable reason for this demotion The
appointing authority cannot entirely disregard the rule on equity of the incumbent and justify demotion in the
guise of reorganization, if such demotion will amount to a penalty without justifiable ground or will result in
deprivation of due process on the part of the employee concerned. Although the appointing authority is afforded
wide latitude in the selection and appointment of employee(s), such exercise is however not absolute. The
Supreme Court in the case of GSIS vs Ayroso (96 SCRA 213), ruled:

While it has been held that the right to select and appoint employees is the prerogative of the
employer, this may be availed of without liability, provided this is exercised, in the words of
Justice Juvenal K. Guerrero, in good faith for the advancement of the employer's interest, and
not for the purpose of defeating or circumventing the rights of the employees under special
laws or under valid agreements, and provided further that such prerogative(s) are not
exercised in a malicious, harsh, oppressive, vindictive or wanton manner, or out of malice or
spite.

Finally, records will further show that appellant is more qualified than appellee because aside from being the
incumbent Customs Operations Chief prior to the reorganization, he was an "Assistant Custom" Operations
Chief since 1977. His experience in the area of Customs Operations are more than sufficient to qualify him for
reappointment to the contested position.17

Clearly, therefore, in the said resolution the CSC is not actually directing the appointment of private respondent but simply
ordering his reinstatement to the contested position being the first appointee thereto. Further, private respondent was already
holding said position when he was unlawfully demoted The CSC, after finding that the demotion was patently illegal, is merely
restoring private respondent to his former position, just as it must restore other employees similarly affected to their positions
before the reorganization.18

It is within the power of public respondent to order the reinstatement of government employees who have been unlawfully
dismissed. The CSC, as the central personnel agency, has the obligation to implement and safeguard the constitutional
provisions on security of tenure and due process. In the present case, the issuance by the CSC of the questioned resolutions,
for the reasons clearly explained therein, is undubitably in the performance of its constitutional task of protecting and
strengthening the civil service.

In the recent case of Aquino vs. Civil Service Commission, et al.,19 wherein similar issues were raised, it was ruled that:

We have consistently applied the above doctrine in many cases with similar factual circumstances, but We see
no compelling reason to apply the same in the instant case. In the cases cited above, We ruled that the CSC
has no authority to revoke an appointment simply because it (CSC) believed that another person is better
qualified than the appointee for it would constitute an encroachment on the discretion solely vested on the
appointing authority. The situation is different, as in the instant case, where the CSC revoked the appointment
of the successful protestant, petitioner herein, principally because the right to security of tenure of the prior
appointee, private respondent herein, to the contested position had already attached. It must be noted that
public respondent CSC did not direct the appointment of a substitute of its choice. It merely restored the
appointment of private respondent who was first appointed to the contested position.

We find no reason to disturb the findings and conclusions of the CSC that respondent Bayani I. Fernandez was illegally
demoted. As earlier noted, private respondent was holding the position of Customs Operations Chief in a permanent capacity
since 1984. His non-reappointment to that position amounts to a removal without cause from an office which has not been
abolished nor reorganized.

As we stressed in Dario vs. Mison, et al., and its companion cases,20 removal from office as a result of reorganization must pass
the test of good faith. Upon the effectivity of the 1987 Constitution, any reorganization undertaken by the Government must be
guided and circumscribed by the safeguards and provisions of the said Constitution and the statutes' governing reorganization. 21
PoliRev Cases 1
In the instant case, the guidelines and standards provided in those laws were not observed. The position of private respondent
as COC of the Export Division was not abolished with the reorganization of the Bureau of Customs. What happened was that
another person, herein petitioner who is lower in rank, was appointed in his stead. Such fact is a clear indication of bad faith
which would entitle herein private respondent to reinstatement pursuant to Section 9 of Republic Act No. 6656. 22

As a civil service employee with a permanent appointment, Private respondent cannot be removed, suspended or demoted
except for cause" provided by law. Private respondent's appointment to the lower position of COAC is a clear demotion in rank
without no valid cause and without being heard thereon. A demotion in office by assigning an employee to a lower position on
the same service is tantamount to removal, if no cause is shown for it, more so, if it is not part of any disciplinary action. 23 The
observance of the rules on bona fide abolition of public office is essential before terminations and/or demotions from
employment in the government service can be made.24

The argument of petitioner that the questioned resolution of respondent CSC will have the effect of her dismissal without cause
from government service, since she is already an appointee to the position which private respondent claims, is devoid of legal
support and logical basis.

In the first place, petitioner cannot claim any right to the contested position. No vacancy having legally been created by the
illegal dismissal no appointment may be validly made to that position and the new appointee has no right whatsoever to that
office. She should be returned to where she came from or to given another equivalent item. 25 No person, no matter how qualified
and eligible for a certain position, may he appointed to on office which is not yet vacant. The incumbent must have been lawfully
removed or his appointment validly terminated,26 since an appointment to an office which is not vacant is null and ab initio.27

The present Constitution does not provide for automatic vacancies; removals "not for cause" contemplated in Section 16, Article
XVIII thereof must be those resulting from reorganization and which, to repeat, must pass the test of good faith. 28

We reiterate what we said in the above-cited case of Floreza:

We apply the ruling in Dario vs. Mison and Section 2 of Republic Act 6656 to this position. We hold that Floreza
was deprived of his right to security of tenure by his non-appointment to the position of Revenue Service Chief
or its new title under the reorganized Bureau of Internal Revenue. It should be remembered that after February
2, 1987, any reorganization undertaken by the government is circumscribed by the provisions and safeguards
of the New Constitution. Hence, when Floreza was not reappointed as Revenue Service Chief or as Assistant
Commissioner either in the Legal Service, or in the Planning and Research Service, and other persons were
reappointed to the positions, he was, in effect dismissed from the service in violation not only of his right to
security of tenure but to due process as well.

xxx xxx xxx

Section 2 of Republic Act No. 6655 entitles a victim of removal in violation of the bona fide  rule to a
reinstatement or reappointment to the position from which he was removed. The fact that there is now an
appointee to the position he claims, holding an appointment signed by the President, is of no moment, There
was no vacancy in the office to which Jaime M. Masa was appointed and, therefore, his promotion was not
valid.

The argument of the Solicitor General that private respondent's assignment as COC of the Export Division at NAIA was only in
an acting capacity is unavailing. While it is true that an acting appointment is merely temporary and revocable at the pleasure of
the appointing power,29 this temporary appointment cannot be used by the appointing authority as an argument or justification in
order to evade or avoid the security of tenure principle in the Constitution and the Civil Service Law. 30

Although it is true that the appointment of private respondent Fernandez as COC is without any particular or fixed station and,
generally he may be assigned anywhere as the exigencies of the service may require, 31 nonetheless his reassignment as Acting
Chief of the Export Division at NAIA does not make his appointment as Customs Operation Chief I temporary and revocable at
the pleasure of the appointing power. He cannot be arbitrarily removed from a particular division without reassigning him to
another division nor can he be appointed to a lower position without cause and without notice and hearing The appointing power
cannot use the device of an ambiguous designation to go around the security of tenure of a permanent employee. 32

On the foregoing consideration, private respondent must be restored to his former position as Chief of the Export Division at
NAIA without prejudice to the power of the Commissioner of Customs to reassign him to any other division as the exigencies of
the service may require, provided this is done in good faith for the best interests of the service or for valid cause.

It is also worthy of note that the order for the reinstatement of private respondent is in consonance with our ruling in Dario vs.
Mison, ante, that there was lack of good faith in the reorganization of the Bureau of Customs. Apropos to the present case is
this trenchant observation therein: "There is no showing that legitimate structural changes have been made — or a
reorganization actually undertaken, for that matter — at the Bureau since Commissioner Mison assumed office, which would
have validly prompted him to hire and fire employees. There can therefore be no actual reorganization to speak of, in the sense,
say, of reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions, but
a revamp of personnel pure and simple."33

WHEREFORE, the petition at bar is DISMISSED and the questioned resolutions of respondent Civil Service Commission are
hereby AFFIRMED.

SO ORDERED.
PoliRev Cases 1
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Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 101646 February 13, 1992

DR. MARIQUITA J. MANTALA, petitioner,

vs.
HON. IGNACIO L. SALVADOR, Judge, Regional Trial Court of Quezon City, and DR. JULIA P. REGINO, respondents.

Araceli Baviera for petitioner.

Benjamin M. Dacanay for private respondents.

NARVASA, C.J.:

At issue in this certiorari proceeding is (a) the validity of the assumption of jurisdiction by the Regional Trial Court over the
matter of who is entitled, under the law and rules governing the civil service, to a contested position in the Department of Health,
as well as (b) the correctness of said Court's decision on the question.

It appears that sometime in July, 1988, Dr. Mariquita J. Mantala, a private medical practitioner, was given by the Secretary of
Health a temporary appointment to the then vacant position of Division Chief, Medical Division III, Monitoring and Evaluation
Division of the TB Control Service, Office of Public Health, of the Department of Health.

That temporary appointment was shortly made subject to a formal protest filed by Dr. Julia P. Regino with the Committee on
Evaluation and Protest of the Department of Health. Dr. Regino claimed that it was she to whom the appointment should have
been extended since the post of Medical Officer III then held by her was next-in-rank to the office in question, and moreover she
had been in the service for thirty-five years. However, the Committee on Evaluation and Protest ruled adversely to her and
upheld the Health Secretary's appointment of Dr. Mantala as Division Chief.

Dr. Regino appealed to the Merit Systems Board of the Civil Service Commission. On December 14, 1989, the Board rendered a
verdict adversely to Dr. Mantala and in Dr. Regino's favor. This decision the Department of Health appealed to the Civil Service
Commission.

Some three weeks later, or more precisely on January 8, 1990, Secretary Bengzon made Dr. Mantala's appointment as Division
Chief permanent. He also filed, under date of January 23, 1989, a motion for reconsideration of the aforementioned decision of
the Merit Systems Board which was, however, denied, on February 12, 1990.

Secretary Bengzon thereupon took the case up to the Civil Service Commission. In its Resolution dated June 14, 1990 (No. 90-
553), the Commission dismissed the appeal and affirmed the decision of the Merit Systems Board in Dr. Regino's favor.

On a motion for reconsideration, however, the Commission, by its Resolution No. 90-1012 dated November 14, 1990, set aside
the resolution of dismissal and upheld Dr. Mantala's appointment. It declared "that insofar as overall rating of the qualification,
attitude and performance (was concerned), Dr. Mantala outscored Dr. Regino," and that the appointing authority is not limited to
promotion in filling up vacancies but may opt to fill them by the appointment of persons with civil service eligibility appropriate to
the position. Dr. Regino filed a motion for reconsideration stressing her status as "a qualified next-in-rank" officer. This was
denied, the Commission declaring that it would "not delve into who is more qualified or who possesses more impressive
qualifications" in deference to the discretion lodged by law in the appointing authority.

No appeal was taken from said Resolution No. 90-1012. It consequently became final and executory.

In the meantime, or more precisely on March 12, 1990, Dr. Regino instituted an action of quo warranto and mandamus in the
Regional Trial Court at Quezon City against Dr. Mantala, Secretary Bengzon and other officials of the Department of Health,
claiming that having an established right to the position of Division Chief in question, she should be installed therein (Civil Case
No. Q-90-5486). This resulted in a judgment dated August 30, 1991 which —

1) annulled and set aside Dr. Mantala's appointment as Chief of Medical Division III in the Tuberculosis Control
Service, Office for Public Health Services, Department of Health;

2) directed the Secretary of Health to withdraw Dr. Mantala's appointment and "issue in its place one for . . . Dr.
Julia P. Regino and, without delay, to forward the latter's promotional appointment to the Civil Service
Commission for approval pursuant to law;" and

3) declared Dr. Mantala "not entitled to said office and ousting her therefrom . . .

Hence this petition for review on certiorari in which it is prayed that the Regional Trial Court's decision be reversed.
PoliRev Cases 1
The petition has merit and will be granted. The decision of August 30, 1991 is fatally flawed. It was rendered without jurisdiction,
and it runs afoul of established doctrine.

Disciplinary cases, and cases involving "personnel actions" affecting employees in the civil service — including "appointment
through certification, promotion, transfer, reinstatement, reemployment, detail, reassignment, demotion and separation," and, of
course, employment status and qualification standards — are within the exclusive jurisdiction of the Civil Service Commission.
The Constitution declares the Commission to be "the central personnel agency of the Government," 1 having power and
authority to administer the civil service; 2 to promulgate its own rules concerning pleadings and practice before it or before any of
its offices; 3 and to render decision in "any case or matter brought before it within sixty days from the date of its submission for
decision or resolution," which decision, or order or ruling "may be brought to the Supreme Court on certiorari by the aggrieved
party within thirty days from receipt of a copy thereof." 4

On October 9, 1989, pursuant to the constitutional authority on it conferred, the Civil Service Commission, in its Resolution No.
89-779, approved, adopted and promulgated its "Rules on Administrative Disciplinary Cases and Rules on Protest Cases." Part
B of said Rules, entitled "B. Rules on Protest Cases," inter alia  sets out with particularity the Commission's jurisdiction broadly
set forth in the Constitution, to wit:

Sec. 3. Final Appellate Jurisdiction. — The Civil Service Commission shall exercise final and exclusive
appellate jurisdiction over all cases decided by the Merit Systems Protection Board and the Civil Service
Regional Offices involving contested appointments or promotions.

and prescribes the procedure (Rule IV) governing protest cases. Said protest cases are described as follows: 5

(a) An appointment made in favor of another next-in-rank employee who is not qualified;

(b) An appointment made in favor of one who is not next-in-rank;

(c) An appointment made in favor of one who is appointed by transfer and not next-in-rank, or by reinstatement
or by original appointment, if the employee making the protest is not satisfied with the written special reason or
reasons given by the appointing authority for such appointment.

These protest cases are decided in the first instance by the head of Department or agency, subject to appeal to the Merit
Systems Protection Board, whose decisions are in turn subject to appeal to the Civil Service Commission. The latter's decision
may, in turn, be brought to the Supreme Court.

It was thus error, because beyond its competence, for the respondent Trial Court to take cognizance of the quo
warranto and mandamus  action instituted by Dr. Regino which was in essence a protest against the appointment of Dr. Mantala.
Moreover, this protest, as already stated, had earlier been submitted by Regino herself to the civil service adjudicatory system
laid down for the purpose in accordance with the Constitution, the law, and the Commission's rules. Dr. Regino appealed to the
Merit Systems Protection Board from the decision of the Secretary of Health rejecting her protest and upholding the appointment
of Dr. Mantala. She ventilated her position in the appellate proceedings instituted by Dr. Mantala in the Civil Service
Commission, in connection with the latter's attempt to overthrow the adverse judgment of the Board. When the Commission, in
its Resolution of November 14, 1990, eventually sustained Dr. Mantala's appeal, Dr. Regino filed a motion for reconsideration. It
was only after the Resolution of November 14, 1990, in Dr. Mantala's favor, became  final and executory by reason of Dr.
Regino's failure to take an appeal therefrom — and evidently to remedy this fatal procedural lapse — that the latter thought of
filing her quo warranto and mandamus action in the Regional Trial Court. Such a stratagem cannot be allowed to succeed.

Even on the merits, Dr. Regino's cause fails. For one thing, the Commission's conclusion — "that insofar as overall rating of the
qualification, attitude and performance (was concerned), Dr. Mantala outscored Dr. Regino" — is basically a factual one and
may not be reviewed on certiorari; and its legal opinion — that the appointing authority is not limited to promotion in filling up
vacancies but may opt to fill them by the appointment of persons with civil service eligibility appropriate to the position — is
entirely in accord with law. For another, the now firmly established doctrine is that the discretion exercised by the appointing
power in extending an appointment to a given position to one of two or more employees possessing the requisite minimum
qualifications for the position, will not generally be interfered with and must be sustained, and the Civil Service Commission has
no authority to revoke the said appointment simply because it believes that another employee is better qualified, for that would
constitute an encroachment on the discretion vested sole in the appointing authority. 6

WHEREFORE, the decision of the Regional Trial Court of August 30, 1991, is hereby ANNULLED AND SET ASIDE, and
Resolution No. 90-1012 dated November 14, 1990 of the Civil Service Commission upholding Dr. Mantala's appointment to the
contested position, which has long since become final and executory, is hereby declared to be determinative and conclusive of
the controversy at bar and, if not yet carried out, must now be forthwith executed. Costs against private respondent.

SO ORDERED.