Republic of the PhilippinesSUPREME 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 OnMarch 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 OfficerII 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petitioner could be validly replaced in the instant case because his appointment was temporary and therefore could be withdrawn at will, with orwithout cause.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 therespondent 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" inthe 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 approvaltemporary was the fact that itwas 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 authoritybeing limited to approving or reviewing the appointment in the light of therequirements 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 discretionof 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 ofthe 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 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 Presidentof the Philippines had to be confirmed by that body and could not be issuedor were invalidated without such confirmation. In fact, confirmation by theCommission 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 dois 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 respondentwas better qualified for that would have constituted an encroachment on thediscretion 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 twoor 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 bean 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.

Teehankee, C.J., Feria, Yap, Fernan, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., and Paras, JJ., concur.

 

Luego vs CSC, 143 SCRA 327Posted by Pius Morados on November 7, 2011(Public Officer, Appointments, CSC)

Facts: Petitioner was appointed Admin Officer II, Office of the City Mayor,Cebu City, by Mayor Solon. The appointment was described as “permanent” butthe CSC approved it as “temporary,” subject to the final action taken in the protest filed by the private respondent and another employee.Subsequently, the CSC found the private respondent better qualified than the petitioner for the contested position and, accordingly directed that the latter be appointed to said position in place of the petitioner whose appointment is revoked. Hence, the private respondent was so appointed to the position by Mayor Duterte, the new mayor.

The petitioner, invoking his earlier permanent appointment, questions the order and the validity of the respondent’s appointment.

Issue: WON the CSC is 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.

Held: No. The appointment of the petitioner was not temporary but permanentand 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 CSC to reverse him and call it temporary.Section 9(h), Art V of the Civil Service Decree provides that the Commission shall have inter alia the power to “…approve all appointments, whether original or promotional, to positions in the civil service… ….and disapprove those where the appointees do not possess appropriate eligibility or required qualifications.”The CSC is not empowered to determine the kind or nature of the appointmentextended by the appointing officer, its authority being limited to approving or reviewing the appointment in the light of the requirements of the CSC Law. When the appointee is qualified and all the other legal requirements are satisfied, the Commission has no choice but to attest to the appointment in accordance with the CSC Laws.

CSC is without authority to revoke an appointment because of its belief that another person was better qualified, which is an encroachment on the discretion vested solely in the city mayor.

RULINGIn Luego v.CSC this court declared appointment is an essentially

discretionary power and must be performed by the officer in which it isvested according to his best lights, the only condition being that theappointee should possess the qualifications required by law. If he does,then the appointment cannot be faulted on the ground that there are othersbetter qualified who should have been preferred. This is a politicalquestion involving considerations of wisdom which only the appointingauthority can decide.

The CSC acknowledged that both the petitioner and the private respondentwere qualified for the position in controversy. That recognition alonerendered it functus officio in the case and prevented it from actingfurther thereon except to affirm the validity of the petitioner'sappointment. To be sure, it had no authority to revoke the said appointmentsimply because it believed that the private respondent was better qualifiedfor that would have constituted an encroachment on the discretion vestedsolely in the city mayor.

Only recently, in Gaspar v. Court of Appeals, this Court said: The onlyfunction of the CSC  in cases of this nature, according toLuego, is toreview the appointment in the light of the requirements of the CivilService Law, and when it finds the appointee to be qualified and all otherlegal requirements have been otherwise satisfied, it has no choice but toattest to the appointment. Luego finally points out that the recognition bythe Commission that both the appointee and the protestant are qualified forthe position in controversy renders it functus officio in the case andprevents it from acting further thereon except to affirm the validity ofthe former's appointment; it has no authority to revoke the appointmentsimply because it considers another employee to be better qualified forthat would constitute an encroachment on the discretion vested in theappointing authority.

The determination of who among several candidates for a vacant positionhas the best qualifications is vested in the sound discretion of theDepartment Head or appointing authority and not in the CSC.

The CSC cannot substitute its judgment for that of the Head of Office inthis regard.

Luego v. Civil Service CommissionFELIMON LUEGO vs. CIVIL SERVICE COMMISSION, G. R. No. L-69137, August 6, 1986

FACTS: Petitioner was appointed Administrative Officer II, Office of the City Mayor, Cebu City, by Mayor Florentino Solon on 18 February 1983. The appointment was described as "permanent" but the Civil Service Commission approved it as "temporary." On 22 March 1984, the Civil Service Commission found the private respondent better qualified than the petitioner for the contested position and accordingly directed herein private respondent in place of petitioner's position. The private respondent was so appointed on 28 June 1984, by the new mayor, Mayor Ronald Duterte.

The petitioner is now invoking his earlier permanent appointment as well as to question the Civil Service Commission's order and the private respondent's title.

ISSUE: Whether or not the Civil Service Commission is authorized to disapprove a permanent appointment on the ground that another person is better qualified than the appointee and, on the basis ofthis finding, order his replacement by the latter.

RULING: The Supreme Court ruled in the negative. The Civil ServiceCommission is not empowered to determine the kind or nature of theappointment 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 the other legal requirements are satisfied, the Commission has no choice but to attest to the appointment in accordance with the Civil Service Laws. Hence, the Civil Service Commission's resolution is set aside.

Luego v. Civil Service Commission (G. R. No.   L-69137) Posted: August 10, 2011 in Case Digests, Political Law

0

FACTS: Petitioner was appointed Administrative Officer II, Office of the City Mayor, Cebu City, by

Mayor Florentino Solon on 18 February 1983. The appointment was described as “permanent” but the

Civil Service Commission approved it as “temporary.” On 22 March 1984, the Civil Service Commission

found the private respondent better qualified than the petitioner for the contested position and

accordingly directed herein private respondent in place of petitioner’s position. The private

respondent was so appointed on 28 June 1984, by the new mayor; Mayor Ronald Duterte. The petitioner

is now invoking his earlier permanent appointment as well as to question the Civil Service

Commission’s order and the private respondent’s title.

ISSUE: Whether or not the Civil Service Commission is 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?

HELD: The Supreme Court ruled in the negative. 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 the other legal requirements are satisfied,

the Commission has no choice but to attest to the appointment in accordance with the Civil Service

Laws. Hence, the Civil Service Commission’s resolution is set aside.

Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

 

G.R. No. L-26785 May 23, 1991

DEOGRACIAS A. REGIS, JR., petitioner, vs.SERGIO OSMEÑA, JR., VICENTE PACIFICO, CITY OF CEBU, CITY COUNCIL OF CEBU, CITY TREASURER AND CITY AUDITOR, respondents.

Basilio E. Duaban for petitioner.

 

DAVIDE, JR., J.:p

This is an appeal from the Decision 1 of the Court of First Instance of Cebu dated 28 December 1965 in Civil Case No. R-8778, dismissing the petition for Mandamus filed on 9 March 1965 by petitioner to compel respondents to reinstate him to his former position as driver, Motorized Section of the Cebu City Police Department (CPD), with back salaries from the date of his ouster until reinstatement, and to pay him moral and exemplary damages and attorney's fees. 2

The material operative facts in this case, as admitted by the parties in the stipulation of facts they submitted in the court below and as established by the other evidence introduced by them pursuant to the reservations they made in the stipulation of facts are as follows:

I. Per stipulation of facts: 3

1. On January 8, 1958, petitioner was appointed by then Cebu CityMayor, Ramon Duterte, as driver, Motorized Division of the Cebu

Police Department, with a yearly compensation of P1,440.00, as shown by a true copy of his appointment hereto attached and marked Annex "A";

2. On January 8, 1960, petitioner was issued another appointment as "driver" of the Cebu Police Department, at an increased yearlycompensation at P1,560.00, a true copy of which is hereto attached and marked Annex "A-1";

3 On December 21, 1961, petitioner was issued another appointmentby then Cebu City Mayor Carlos J. Cuizon as "Driver, Civilian Employee" of the Cebu Police Department at the increased yearly compensation of P1,920.00 a true copy of which is hereto attachedand marked as Annex "A-2";

4. On November 7, 1963, petitioner was extended an appointment as"driver (Radio Patrol) Civilian Employee" of the Cebu Police Department at the increased yearly compensation of P2,040.00, true copy of which is marked as Annex "A-3";

5 On April 14, 1964, petitioner was removed from his position in the Cebu Police Department without prior investigation or hearing, the termination having been made in a letter of dismissal quoted as follows:

REPUBLIC OF THE PHILIPPINES

CITY OF CEBU

Office of the Mayor

April14, 1964

Mr. Deogracias A. Regis, Jr.

Driver, Cebu Police Department

Cebu City

Sir:

There being no more need for your service as Driver in the Cebu Police Department, your provisional appointment thereto is herebyterminated effective April 16, 1964. Please turn over any government property that may have been issued to you to the proper property custodian and have yourself cleared of any accountability during the period of your service.

Respectfully,

By orderof the

Mayor:

(SGD.) Vicente V.Pacifico Secretary to the Mayor

6. Petitioner is a civil service eligible, having passed the patrolman and/or detective (qualified) civil service examination on July 20, 1963 with a rating of 76.85% as shown in the attachedcopy of "Report of Ratings" marked Annex "B";

7. Petitioner is a fourth year student in the College of Liberal Arts in the University of the Visayas as shown by the attached certification marked Annex "C";

8. The position of the petitioner, after his removal, was filled up by the respondent City Mayor with the appointment of Eduardo Gabiana, a non-civil service eligible as shown in his appointmenthereto attached and marked Annex "D";

9. On August 20, 1964, after his removal, the petitioner addressed similarly worded letters to the President of the Philippines and the Civil Service Commissioner, hereto attached as Annexes "E" and "E-1", protesting and appealing his unlawful removal and demanding his reinstatement. Under date of September 4, 1964, the Executive Secretary to the President indorsed the above-mentioned letter to the Commissioner of Civil Service, as shown in the first indorsement hereto attached as Annex "E-2". Since the filing of the instant action, the petitioner has not been afforded the relief of reinstatement by either the Office ofthe President of the Philippines or by the Civil Service Commissioner.

Parties, however, will submit evidence to establish facts not herein stipulated.

Cebu City, August 20, 1965.

(SGD.) FERNANDO S. RUIZ (SGD.) JOSE BATIQUIN

(T) FERNANDO S. RUIZ (T) JOSE BATIQUIN

Attorney for the Assistant City Fiscal

Petitioner Counsel for the

2nd Floor, Aboitiz Respondents

Building Cebu City

Magallanes corner

Jakosalem

Cebu City

II. Per additional evidence formally adduced during the hearing:

10. Petitioner received his civil service eligibility for patrolman-detective on 8 March 1964, a photostatic of which was filed, for record purposes, with the clerk in charge of the record section of the CPD on 12 March 1964 (Exhs. "F", "F-1"); his efficiency rating is 88%, the highest among the drivers of the CPD he is the only civil service eligible among the drivers in the CPD; after his ouster, the City of Cebu created positions of drivers; and he attributed his ouster to politics, alleging that he was being suspected as a supporter of the faction of thenCongressman Durano, the political rival of respondent Mayor Osmeña; 4 and

11. The records of the Regional Office of the Civil Service Commission in Cebu City do not show that petitioner possesses anycivil service eligibility at the time he was appointed as driver. 5

This Court further observes that the actions of the Civil Service Commission on the appointments of petitioner admitted in the Stipulation ofFacts and attached thereto as Annexes "A", "A-1", "A-2" and "A-3" were as follows:

1. Appointment dated 8 January 1958 — Noted as temporary pending receipt of the required medical certificate, subject to availability of funds and provided that there is no pending administrative or criminal case against appointee and that the separation of the former incumbent is in order;

2. Appointment dated 8 January 1960 — Approved under Section 24(c) or R.A. No. 2260 as an exception to Section 256 of the Revised Administrative Code, and subject to availability of funds;

3. Appointment dated 21 December 1961 — Approved under Section 24(c) of R.A. No. 2260, subject to availability of funds and as exceptional case under Sec. 256 of the Revised Administrative Code, provided there is no pending administrative or criminal case against the appointee and provided that his efficiency rating for the semester ending 6-30-61 is not below 85%; and

4. Appointment dated 7 November 1963—Approved under Section 24(c)of R.A. No. 2260, subject to availability of funds and subject toSection 20 of R.A. No. 2260, provided there is no pending administrative or criminal case against the appointee.

The last three appointments were for salary adjustments.

In its Decision of 28 December 1965, the court below dismissed the petitionon the ground that petitioner's questioned appointment was temporary in nature and, therefore, terminable at the pleasure of the appointing power. Expounding on this, it says:

xxx xxx xxx

As for the first issue the answer is that his status at the time of his ouster on April 16, 1964 was that of temporary driver of the CPD. His appointments on January 8, 1958, January 8, 1960, December 21, 1961 and on November 7, 1963 were all temporary in nature. It is true that on March 5, 1964 the Civil Service Commission certified to his having passed the patrolman/detectivecivil service examination with a rating of 75.85%, but said examination is not intended for or appropriate to, the position of driver; hence, it did not convert his temporary status of driver to a permanent one. (Sec. 8, Rule IV, Civil Service Rules.) Then again, the mere certification of the Civil Service Commission of his civil service eligibility for patrolman/detective did not amount to his appointment. The appointing power, the City Mayor, has the right of choice which he may exercise freely according to his judgment, deciding for himself who is best qualified for any competitive position in theCivil Service. The Civil Service Commission does not ensure any appointment; it only certifies an eligible to be possessed of thequalification, as required for a position classified under its rules. (Jimenez vs. General Francisco, etc., et al., G.R. No. L-9699, Feb. 28, 1957; Vol. 53 O.G. Aug. 15, 1957, p. 4804.)

The appointment of the petitioner being temporary or provisional in nature, the duration of temporary appointment should not exceed six months. (Sec. 24, Rep. Act 226.) After the expiration of said period, petitioner could have been removed at will by theappointment power; his continuance thereafter as a temporary employee was only an extension of grace. (Jimenez vs. General Francisco, etc., et al., supra.)

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. (Cuadra vs. Cordova, G.R. No. L-11602, April 21, 1958; Vol. 54 O.G. Dec. 8, 1958, p. 8063.) 6

Hence, this appeal.

In his Brief petitioner assigns only one error: The court a quo erred in dismissing his petition. 7

In support thereof he argues that his removal on the ground that there was "no more need for your service" was not real and true but a mere pretext, for after his ouster one Eduardo Gabiana, a non-civil service eligible, wasappointed to the vacated position and in the succeeding budget of the City of Cebu more positions of driver were created; at the time of his ouster hewas already a civil service eligible, having passed the patrolman-detective(qualifying) civil service examination given in July of 1963, and respondents knew of this fact. Moreover, said removal was not for cause, and it was done without due process in violation of Section 32 of R.A. No. 2260 which provides that 44 no officer or employee in the civil service shall be removed or suspended except for cause provided by law and after due process."

Petitioner further argues that his last appointment of 7 November 1963 was approved under Section 24(c) of R.A. No. 2260; therefore, it was a provisional and not a temporary appointment as erroneously classified by the court a quo. Republic Act No. 2260 makes a distinction between provisional and temporary appointments. The former is governed by Section 24(c) while the latter is covered by Section 24(d) thereof. According to him, his appointment was provisional because at the time it was extended he was not yet a civil service eligible. He was still awaiting for the results of the examination for patrolman-detective (qualifying) given by the Civil ServiceCommission in July of 1963; however, he received his report of rating on 8 March 1963 indicating that he passed it; consequently, instead of dismissing him, the City Mayor should have extended to him a permanent appointment inasmuch as he had already become a civil service eligible. In short, he claims that his patrolman-detective eligibility is appropriate tohis position considering the nature of his office prior to his removal which authorized him to wear the uniform and badge of a regular member of the Cebu Police Department, carry an official firearm, wear an ID as a regular member of the city police, and to make arrests.

Finally, petitioner submits that as member of the Cebu City Police at the time of his removal, his separation from the service could only be done under R.A. No. 557 under which the City Mayor can only prefer charges but cannot remove.

Respondents filed their Brief after the expiration of the reglementary period. Upon motion of petitioner dated 29 March 1967 8 this Court ordered their brief stricken off the record. 9

We agree with the petitioner that the trial court erred in holding that hisappointment is temporary in nature. Obviously, the trial court failed to appreciate the clear distinction between a temporary appointment and a provisional appointment. It had either confused one for the other or considered one as synonymous with the other as shown in the opening sentence of the first paragraph of the portions of the decision hereinbefore quoted wherein it categorized the appointment of petitioner as"temporary or provisional in nature."

As correctly stated by petitioner, provisional appointments are governed byparagraph (c) of Section 24 of R.A. No. 2260 while temporary appointments are covered by paragraph (d) of said Section. For convenience We quote bothparagraphs:

xxx xxx xxx

(c) Provisional appointments — A provisional appointment may be issuedupon prior authorization of the Commissioner in accordance with the provisions of the Act and the rules and standards promulgatedin pursuance thereto to a person who has not qualified in an appropriate examination but who otherwise meets the requirements for appointment to a regular position in the competitive service,whenever a vacancy occurs and the filling thereof is necessary inthe interest of the service and there is no appropriate register of eligibles at the time of appointment.

(d) Temporary appointment. — A person may receive a temporary appointment to a position needed only for a limited period not exceeding six months, provided that a preference in filling such position be given to persons on appropriate eligible lists.

In Festejo vs. Barreras, et al., L-25074, 27 December 1969, 10 We made a distinction between a provisional appointment and temporary appointment thus:

xxx xxx xxx

There is no basis nor logic in appellants' contention that there is no difference between a temporary appointment under Section 24(d) of the Civil Service Act which reads thus:

Temporary Appointment. — A person may receive a temporaryappointment to a position needed only for a limited period not exceeding six months, provided that preference in filing such position be given to persons on appropriate eligible lists.

and a provisional appointment under Section 24(c) which says:

Provincial appointment. — A provisional appointment may be issued upon the prior authorization of the Commissionerin accordance with the provisions of this Act and the rules and standards promulgated in pursuance thereto toa person who has not qualified in an appropriate examination but who otherwise meets the requirements for appointment to a regular position in the competitive service, whenever a vacancy occurs and the filling thereof is necessary in the interest of the service and there is no appropriate register of eligibles at the time of appointment.

According to appellants, "while they may be different in the degree of permanence, in that temporary appointments are generally for and within specified periods of time, their nature as being subject to termination by the appointing power remains the same." Such contention petition is untenable.

Even from a cursory reading of these two provisions, one can readily see that each of them contemplates an entirely different situation from the other. Indeed, as pointed out by His Honor, the trial judge, it is contrary to the ordinary rules of legal hermeneutics to assume that the lawmakers intended these two separate provisions in a seemingly single enumeration of categories of appointments to have the same import or significance. Whereas a temporary appointment is designed to fill"a position needed only for a limited period not exceeding six months, a provisional appointment, on the other hand, is intendedfor the contingency that "a vacancy occurs and the filling thereof is necessary in the interest of the service and there is no appropriate register of eligibles at the time of appointment."In other words, the reason for extending a provisional appointment is not because there is an occasional work or job to be done which is expected to be finished in not more than six months but because the interest of the service requires that certain work be done or functions be performed by a regular employee, only that there is no one with appropriate eligibility,who can be appointed to do it, hence any other eligible may be appointed to perform such work or functions in the meanwhile thata suitable eligible does not qualify for the position. This is

clearly implied by the mandate of the provision that a provisional appointment may be extended only to "a person who hasnot qualified in an appropriate examination but who otherwise meets the requirements for appointment to a regular position in the competitive service," meaning one who must anyway be a civil service eligible. On the other hand, again, in the case of a temporary appointment, all that the law enjoins is that "preference in filling such position be given to persons on appropriate eligible lists." And merely giving preference, of course, presupposes that even a non-eligible may be appointed. Asa matter of fact, under this provision, even if the appointee hasthe required civil service eligibility, his appointment is still temporary, simply because such is the nature of the work to be done. The decisions cited by appellants are not in point. They all refer to temporary appointments as such. None of them involves a provisional appointment like the one herein in question.

In Ata, et al. vs. Namocatcat, et al., L-39703, 30 October 1972, 11 We further elaborated on the distinction:

. . . A provisional appointment is one which may be issued, upon the prior authorization of the Commissioner of Civil Service in accordance with the provisions of the Civil Service Law and the rules and standards promulgated thereunder, to a person who has not qualified in an appropriate examination but who otherwise meets the requirements for appointment to a regular position in the competitive service, whenever a vacancy occurs and the filling thereof is necessary in the interest of the service and there is no appropriate register of eligibles at the time of appointment (Sec. 24(c),supra). On the other hand, a temporary appointment given to a non-civil service eligible is without a definite tenure of office and is dependent upon the pleasure of the appointing power." (Citing Cuadra vs. Cordova, 103 Phil. 391; Pinullar vs. President of the Senate, 104 Phil. 131, 135).

As early as Piñero, et al. vs. Hechanova, et al., L-22562, 22 October 1966, 12 Weheld:

. . . Even in the case of those holding provisional or probationary appointments . . . the invalidity thereof can not bedeclared unless it is first shown that there were appropriate eligibles at the time they were appointed . . .

In Ferrer vs. Hechanova, L-24416, 25 January 1967, 13 We held:

. . . A provisional appointment is good only until replacement bya civil service eligible and in no case beyond thirty (30) days from the date of receipt by the appointing officer of the certificate of eligibility (Sec. 24(c), R.A. 2260; Rule VI, Secs.13 and 14, Revised Civil Service Rules; Piñero vs. Hechanova,supra).

In Ramos vs. Subido, L-26090, September 6, 1967, 14 We ruled:

The position in question is under the classified service; Ramos accepted Ms latest appointment thereto, dated July 1, 1963, without having the requisite appropriate civil service

eligibility for said position. Accordingly, his appointment can only be deemed provisional and good only until replacement by oneholding such appropriate eligibility, in no case to extend more than thirty days from receipt of the appointing officer of the list of eligibles (Ferrer vs. Hechanova, L-24418, January 25, 1967).

In Aguilar vs. Hon. Augusto L. Valencia, et al., L-30396, 30 July1971, 15 We affirmed the decision of the trial court holding that provisional appointments under Sec. 24(c) of R.A. No. 2260 can only by terminated thirty days after receipt by the appointing power of a list of eligibles from the Civil Service Commission.

In Lamata, et al. vs. Cusi, et al., L-32619, 31 October 1972, 16 We reiterated our rulings in Piñero vs. Hechanova,Ferrer vs. Hechanova, and Ramos vs. Subido.

Accordingly, since there was no certificate of civil service eligibility received by respondent City Mayor, the provisional appointment of petitioner remained valid and subsisting. Prior to such receipt petitioner may only be removed for cause as provided by law under Section 32 of R.A. No. 2260. That there was "no more need" for his service was not a valid andlawful cause and even if it were so, it could not be availed of in this case since, as admitted by the parties, immediately after the ouster a non-civil service eligible was appointed to replace petitioner and more driver positions were included in the succeeding budget of the City of Cebu. Thesefacts negated the pretended basis for the dismissal. The real hidden cause was not that service of the nature and character rendered by petitioner wasno longer needed, but that petitioner had become unacceptable to the appointing authority. Petitioner testified that his removal was politicallymotivated, he was suspected of supporting the faction of Mr. Durano, a political enemy of respondent City Mayor. We are not inclined to give full faith and credit to this testimony considering that this point was not evenalleged in the petition.

We agree, however, with the court below that the patrolman-detective civil service eligibility of petitioner "is not intended for or appropriate to the position of driver; hence, it did not convert his temporary [should be,correctly,provisional] appointment of driver to a permanent one (Sec. 8, RuleIV, Civil Service Rules)."

Section 8, Rule IV of the Civil Service Rules provides:

xxx xxx xxx

Except as otherwise provided by law, eligibility in a certain examination shall serve as qualification for appointment only to the position or positions for which examination was held and no horizontal or vertical conversion of eligibility or examination rating shall be allowed.

In Police Commission vs. Lood, et al., L-34637, 24 February 1984, 17 We ruled:

Under the civil service law then in force, the fact that private respondent subsequently became a civil service eligible did not ipso facto render permanent the nature of his temporary appointment as to make the question moot and academic.

Although this case refers to a temporary appointment, the rule laid down equally applies to a provisional appointment.

This matter, however, had been subsequently categorically resolved in favorof holders of provisional appointments by R.A. No. 6040, which took effect on 4 August 1969. Section 18 thereof provides:

. . . all provisional appointments made or appointments approved by the Civil Service Commission under Section 24(C) of Republic Act Numbered Two thousand two hundred sixty prior to the approval of this Act shall automatically be permanent under the provisions of Section twenty-four (b) thereof as amended by this Act, subject to the provisions of Section 16(h) of said Act as herein amended. (emphasis supplied).

Pursuant thereto, petitioner's provisional appointment of 7 November 1963 automatically became permanent effective 4 August 1969.

We therefore rule that petitioner's dismissal was illegal and that he should be reinstated.

He should also be granted back salaries.

However, the award for back salaries should not be from the date of his dismissal until reinstatement. In similar cases, We limited the award for aperiod of five (5) years. 18

In Ginson vs. Municipality of Murcia, et al., We ruled:

Considering however, the lapse of time spanning almost twenty years—since this controversy rose, and considering the probability that the petitioner might have, in the interim, acquired a new employment, we are constrained to grant her the payment of back salaries equivalent to five (5) years without deduction or qualification. (Citing Laganapan vs. Asedillo, supra).

We likewise order her reinstatement, subject to the condition that she has not obtained any other employment in Murcia municipal dentist or any position for which she is qualified by reason of civil service eligibility and subject to the requisitesof age and physical fitness. . . .

As to who of the respondents should pay the back salaries, We rule that only respondent City of Cebu should be liable therefor. Respondent City of Cebu did not oppose the dismissal of petitioner and the appointment in his stead of another whose salaries it thereafter paid. All respondents were represented by the Assistant City Fiscal of Cebu City and interposed the same defenses. 19 Moreover, after respondent Mayor Osmeña vacated his office his successor, Carlos J. Cuizon, without the objection on the part of the City of Cebu, filed a manifestation in the court below to the effectthat he adopted the position of his predecessor, Mayor Osmeña, in respect to the course of action taken against petitioner 20 In short, respondent City of Cebu confirmed or ratified the action of the Mayor.

IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered REVERSING the Decision appealed from the ORDERING the respondent City of Cebu to (a) reinstate petitioner, subject to the condition that he has not obtained anyother employment, to his position under his appointment of 7 November 1963,or to any position of equivalent rank, or for which he is qualified by

reason of civil service eligibility and subject to the requisites of age and physical fitness, (b) pay petitioner back salaries, at the rate last received by him, for a period of five (5) years without qualification and deduction and with interest at the legal rate from the date of his illegal dismissal until the same shall have been fully paid, and (c) pay the costs.

SO ORDERED.

G.R. No. 93023, March 13, 1991

TOMAS D. ACHACOSO

, petitioner

,VS.CATALINO MACARAIG and RUBEN D. TORRES, in their capacities as Executive Secretaryand Secretary of the Department of Labor and Employment (DOLE), respectively; and JOSE N.SARMIENTO,

respondents.

FACTS:

Tomas D. Achacoso was appointed Administrator of the Philippine Overseas EmploymentAdministration. In compliance with a request addressed by the President of the Philippines, he filed acourtesy resignation. This was accepted by the President “with deep regrets. The Secretary of Labor requested him to turn over his office to the Deputy Administrator as officer-in-charge. He protested hisreplacement and declared he was not surrendering his office because his resignation was not voluntary but filed only inobedience to the President's directive. Respondent Jose N. Sarmiento was appointedadministrator of the POEA, vice the petitioner. Achacoso filed a motion for reconsideration but this wasdenied. Hence, this petition for prohibition and mandamus.

ARGUMENTS:

Achacoso contends that he is a member of the Career Service of theCivil Service and so enjoyssecurity of tenure, which is one of thecharacteristics of the Career Service as distinguished from the Non-Career Service. His argument is that in view of the security of tenure enjoyed by the officials(provided in the Civil Service Decree), it was “beyond the prerogatives of the President” to requirethem to submit courtesy resignations. Such courtesy resignations, even if files, should be disregardedfor having been submitted “under duress,” as otherwise the President would have the power to removecareer officials at pleasure, even for a capricious reasons.Respondents assert that the petitioner is not entitled to the guaranty because he is not a career official.They contend that as the petitioner was not a career executive service

eligible at the time of hisappointment, he came under the exception to the rule and so was subject to the provision that he “shallsubsequently take the required Career Executive Service examination and that he shall not be promotedto a higher rank until he qualifies in such examination.” Not having taken that examination, he couldnot claim that his appointment was permanent and guaranteed him security of tenure in his position.

ISSUE:

Whether or not petitioner is entitled to security of tenure

HELD:No

, the mere fact that a position belongs to the Career Service doesnot automatically confer security of tenure to its occupant even if he does not possess the required qualifications.

REASONS:

A person who does not have the requisite qualifications for the position cannot be appointed to it in thefirst place or, only as an exception to the rule, may be appointed to it merely in an acting capacity in theabsence of appropriate eligibles. The appointment extended to him cannot be regarded as permanenteven ifit may be so designated.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.There is also a long line of cases affirming the rule that “One who holds a temporary appointment hasno fixed tenure of office; his employment can be terminated at the pleasure of the appointing power,there being no need to show that the termination is for cause.”

Achacoso v Macaraig & Sarmiento Doctrine:

The mere fact that a position belongs to the Career Service does not automatically confer security of tenure to its occupant even if he does not possess the required qualifications.

Facts:

Petitioner, Tomas Achacoso, was appointed Administrator of the Philippine Overseas Employment Administration. In compliance with a request addressed by the President of the Philippines, he filed a courtesy resignation, and this was

accepted by the President “with deep regrets”. The Secretary of Labor requested

him to turn over his office to the Deputy Administrator as officer-in-charge. 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. Nonetheless, respondent Jose Sarmiento was appointed administrator of the POEA. Thus, Achacoso filed a motion for reconsideration but this was denied hence, this petition for prohibition and mandamus.

Arguments:

Achacoso contends that he is a member of the Career Service of theCivil Service and so enjoys security of tenure, which is one of the characteristics of the Career Service as distinguished from the Non-Career Service. His argument is that in view of the security of tenure enjoyed by the officials (provided in the Civil

Service Decree), it was “beyond the prerogatives of the President”to require

them to submit courtesy resignations. Such courtesy resignations, even if files, should be disregarded for having bee

n submitted “under duress,” as otherwise

the President would have the power to remove career officials at pleasure, even for a capricious reasons. On the other hand, respondents assert that the petitioner is not entitled to the guaranty because he is not a career official. They contend that asthe petitioner was not a career executive service eligible at the time of his appointment, he came under the exception to the rule and so was subject to the provision that he

“shall subsequently take the required Ca

reer 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 inhis position.

Issue:

WON petitioner is entitled to security of tenure, as provided in the Civil Service Decree?

Held & Rationale

No. The mere fact that a position belongs to the Career Service does not automatically confer security of tenure to its occupant even if he does not possess the required qualifications. 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 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. Thereis

also a long line of cases affirming the rule that “One who holds atemporary

appointment has no fixed tenure of office; his employment can be terminated at the pleasure of the appointing power, there being noneed to show that the

termination is for cause.”

TOMAS D. ACHACOSO vs CATALINO MACARAIG and RUBEN D. TORRESPosted on July 25, 2013 by winnieclaire

Standard[G.R. No. 93023. March 13, 1991.]

FACTS: Tomas D. Achacoso was appointed Administrator of the Philippine Overseas Employment AdministrationIn 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, “with deep regrets.”The Secretary of Labor requested him to turn over his office to the Deputy Administrator as officer-in-charge.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 but this was denied. He then came to this Court for relief.

The petitioner invokes security of tenure against his claimed removal without legal cause. Achacoso contends that he is a member of the Career Service of the Civil Service and so enjoys security of tenure, which is oneof 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 CivilService 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” torequire 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 reasonsThe respondents assert he is not entitled to the guaranty because he is nota career official (the petitioner did not possess the necessary qualifications when he was appointed Administrator of the POEA in 1987).

ISSUE: WON Achacoso is protected by the security of tenure clause

HELD: NO. The Court finds for the respondent.

CONSTITUTIONAL LAW; BILL OF RIGHTS; SECURITY OF TENURE; PERMANENT APPOINTMENT ISSUED ONLY TO PERSONS QUALIFIED. — A permanent appointment canbe issued only “to a person who meets all the requirements for the positionto which he is being appointed, including the appropriate eligibility prescribed.”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 notpossess the required qualifications.

PERSONS APPOINTED WITHOUT THE REQUISITE QUALIFICATION DEEMED IN ACTING CAPACITY. — The mere fact that a position belongs to the Career Service does not automatically confer security of tenure on its occupant even if hedoes 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.

TEMPORARY APPOINTMENT; PURPOSE. — 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.ID.; ID.; ID.; ID.; CONDITION IMPOSED ON 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.

EXPIRATION OF TERM; METHOD OF TERMINATING TEMPORARY EMPLOYMENT. — In these circumstances, the acting appointee is separated by a method of terminatingofficial relations known in the law of public officers as expiration of theterm. 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. 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.

LUEGO CASE (143 SCRA 327) NOT APPLICABLE TO CASE AT BAR. — The case of Luego v. Civil Service Commission 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 v. Intermediate Appellate Court, Palma-Fernandez v. De la Paz, and Dario v.Mison, are also not pertinent because they also involved permanent appointees who could not be removed because of their security of tenure.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

 

G.R. No. 93023 March 13, 1991

TOMAS D. ACHACOSO, petitionervs.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:p

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 bythe President on April 3, 1990, "with deep regrets." On April 10, 1990, theSecretary 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. 1Claiming 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" torequire 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 invokesOrtiz 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 in1987:

C E R T I F I C A T I O N

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.

xxx xxx xxx

(Sgd.) ELMOR D.JURIDICOExecutiveDirector

Reference is also made to the following rules embodied in Part III, ArticleIV, Integrated Reorganization Plan as approved by P.D. 1 and amended by P.D. 336 and P.D. 337, on the career executive service:

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 rankswhich qualify the incumbents to assignments as undersecretary andheads 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 inhis 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 argumentsof 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 lackof 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 inthe 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 conditionthat 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 anyfixity 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 didnot 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 Commission 7 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, 8Palma-Fernandez vs. De la Paz, 9 and Dario vs. Mison, 10 are also not pertinent because they also involved permanentappointees 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. Itis so ordered.

Fernan, C.J., Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Bidin, Sarmiento, Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.

Narvasa and Padilla, JJ., took no part.

Footnotes

PROVINCE OF CAMARINES SUR VERSUS CA

DECISION 

 

PERALTA, J.:

 

Before this Court is a petition for review on certiorari,[1] under Rule 45 of the Rules of Court, seeking to set aside theResolutions of the Court of Appeals (CA) dated May 31,2001[2] and November 19, 2001[3] in CA-G.R. CV No. 69735.

 The facts of the case are as follows: Expropriation proceedings were initiated

by petitioner Province of Camarines Sur against respondentsHeirs of Agustin Pato, Adolfo del Valle Brusas & Zenaida Brusas,Trifona Federis, Mauricio Medialdea & Nelson Tongco, Marianode los Angeles, Heirs of Miguel Pato, Araceli Barrameda Aclanand Ponciano Iraola sometime in 1989 in the Regional Trial Court(RTC) of Pili, Camarines, Sur, Fifth Judicial Region, Branch 32.In the proceedings which was docketed as Special Civil ActionNo. P-2-’89, petitioner proposed to pay respondents P20,000.00per hectare, or P2.00 per square meter, as just compensation fortheir lands. Respondents resisted the attempt of petitioner toexpropriate their properties arguing, among others, that therewas no public necessity. Motions to Dismiss filed by respondentswere, however, denied by the RTC. After a protracted litigationthat led to the appointment of Commissioners to determine theproper value of the properties, the RTC rendered a Decision,[4] the dispositive portion of which reads:

            

IN VIEW OF THE FOREGOING, judgment is hereby rendered: 

1.            Expropriating, in favor of plaintiff Province, forthe public use detailed in its complaint, and in Res. No. 129, S.of 1998, the lands described in its pars. 1 and 4, consolidatedcomplaint, as further described its sketch plan, p. 361 records; 

2.            Condemning plaintiff to pay defendants as justcompensation for the land, owned by defendants named in theconsolidated complaint and enumerated in Annex A as well as theimprovements standing thereon, at the time this decision isexecuted, and set forth in Annex C hereof, which is made anintegral part of this decision, with 6% interest per annum fromthe date cases were individually filed until paid; and 

3.            Condemning plaintiff to pay Financial Assistanceper E.O. 1035, Sec. 18 to the tenants mentioned in the summary ofthe commissioner’s report and enumerated in Annex A; and to payCommissioners Co, Altar and Malali, P5,000.00 each, immediately.

             NO COSTS.             SO ORDERED.[5]

   

The RTC ruled that the reasonable value of the lands to beexpropriated were as follows:

 Irrigated riceland – P9.00 per sq. m.Unirrigated riceland, coconut land, orchard – P8.00 per sq.

m.Residential land – P120.00 per sq. m.[6]

  Petitioner filed a Motion for Reconsideration[7] to the RTC

Decision, specifically arguing that the value of justcompensation should only be P20,000.00 per hectare, or P2.00 persquare meter. Petitioner argued that such value was the amountawarded by other RTCs in the area, which involved landholdingsof the same condition as that of the subject properties.

 On June 9, 2000, the RTC issued an Omnibus Order[8] denying

petitioner’s motion to reduce the valuations it made. On June 15, 2000, petitioner filed with the RTC a Notice of

Appeal.[9]

 On May 31, 2001, the CA issued a Resolution[10] dismissing

the appeal of petitioner for failure to pay the docket fees,thus:

             x x x x             The Court RESOLVES to:            

x x x x             (d) DISMISS the appeal of plaintiff-appellant Province of Camarines Sur for failure to pay thejurisdictional requirement of payment of the docket fee pursuantto Sec. 1 (c) of the 1997 Rules of Civil Procedure.[11]

  

Aggrieved, petitioner filed a Motion for Reconsideration,[12] which was, however, denied by the CA in a Resolution[13] datedNovember 19, 2001.

 Hence, herein petition, with petitioner raising the

following errors committed by the CA, to wit: 

 i.

THE COURT OF APPEALS GRAVELY ERRED AND GROSSLY ABUSED ITSDISCRETION IN DISMISSING THE APPEAL OF HEREIN PETITIONER PROVINCEOF CAMARINES SUR AND IN DENYING ITS MOTION FOR RECONSIDERATIONSUCH DISMISSAL AND DENIAL BEING ENTIRELY NOT IN ACCORD ANDDIRECTLY IN CONTRAVENTION WITH THE APPLICABLE DECISIONS OF THESUPREME COURT IN THE INSTANT CASE, CONSIDERING THE ATTENDANTCIRCUMSTANCES HEREIN WHICH JUSTIFY THE LIBERAL INTERPRETATION ANDAPPLICATION OF THE RULES OF COURT.

 ii.

THE COURT OF APPEALS SERIOUSLY ERRED IN DISMISSING THE APPEAL OFHEREIN PETITIONER PROVINCE OF CAMARINES SUR SINCE SAID APPEAL ISEXCEPTIONALLY MERITORIOUS AS THE APPEALED DECISION COMPLETELYDEPARTED FROM THE APPLICABLE RULES AND DULY ESTABLISHEDJURISPRUDENCE IN THE DETERMINATION OF JUST COMPENSATION INEXPROPRIATION CASES AND INSTEAD THE JUDGE IN THE LOWER COURT USEDHIS OWN PERSONAL VIEW AND BELIEF IN COMING UP WITH THE VALUATIONOF THE PROPERTY AS TO URGENTLY REQUIRE THE EXERCISE OF THE POWEROF JUDICIAL INTERVENTION AND SUPERVISION BY THE COURT OF APPEALS.

 

 iii.

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT DENIEDTHE MOTION FOR RECONSIDERATION FILED BY HEREIN PETITIONER ANDAFFIRMED ITS RESOLUTION DISMISSING THE APPEAL OF HEREINPETITIONER PROVINCE BY CITING ONE CASE WHICH IS NOT APPLICABLE INTHIS INSTANT CASE AND CITING ANOTHER WHICH IS, IN FACT, SUPPORTOF THE APPEAL OF HEREIN PETITIONER.[14]

  

 

At the crux of the controversy is a determination of thepropriety of the CA’s resolution dismissing petitioner’s appealfor failure to pay the docket fees. In its Motion forReconsideration[15] before the CA, petitioner argued that itsfailure to pay the docket fees was due to the honestinadvertence and excusable negligence of its former counsel,Atty. Victor D.R. Catangui, to wit:

            

x x x x 

1.            The failure of the former counsel of hereinPlaintiff-Appellant Province of Camarines Sur (the late Atty.Victor D.R. Catangui) to pay or caused to be paid the appellatecourt docket fees was committed through honest inadvertence andexcusable negligence, since during the time that the notice ofappeal was filed, said counsel was already having health problemsaffecting his heart that substantially distracted him fromfaithfully performing his duties and functions as ProvincialLegal Officer, including that as counsel of herein Plaintiff-Appellant Province of Camarines Sur in the above-entitled case;

 2.            That it was the same physical condition that forced

him to resign as Provincial Legal Officer effective January 2,2001 as the distance between his office in Provincial CapitolComplex, Cadlan, Pili, Camarines Sur and that of his residence inSan Roque, Iriga City, which is, more or less than 27 kilometersis too much for him to physically endure;

 3.            That, notwithstanding his resignation from the

Provincial Government of Camarines Sur and subsequent transfer toa much nearer office in Iriga City, he nevertheless, sad to tell,unexpectedly succumbed on March 2, 2001 at the age of 47. x xx[16]

  

 This Court is not convinced. Time and time again, this Court

has consistently held that the payment of docket fees within the

prescribed period is mandatory for the perfection of an appeal.Without such payment, the appellate court does not acquirejurisdiction over the subject matter of the action and thedecision sought to be appealed from becomes final and executory.[17]

 Records disclose that petitioner’s former counsel Atty.

Catangui filed a Notice of Appeal on June 15, 2000. On January15, 2001, Atty. Catangui filed a Motion with the CA notifyingthe same that he was withdrawing as counsel for petitioner. OnMay 31, 2001, the CA issued the first assailed Resolution, whichnoted the motion of Atty. Catangui to withdraw as counsel andwhich also dismissed petitioner’s appeal for failure to pay thedocket fees. Said resolution was sent to petitioner viaregistered mail and was received by petitioner’s agent, acertain Loningning Noora-Papa, as evidenced by the RegistryReturn Receipt.[18]  It was only on August 2, 2001 that the CAreceived the Entry of Appearance[19] of petitioner’s new counsel,Atty. Elias A. Torallo, Jr.  With the appearance of Atty.Torallo, the CA resent the May 31, 2001 Resolution informing himof the dismissal of the petition. On September 11, 2001, a dayafter receiving said Resolution, Atty. Torallo paid thecorresponding docket fees. 

From the time Atty. Torallo paid the corresponding docketfees, approximately 15 months had already lapsed from the timethe notice of appeal was filed by petitioner’s former counselAtty. Catangui. This is to this Court’s mind, already too latein the day.

 While the strict application of the jurisdictional nature of

the rule on payment of appellate docket fees may be mitigatedunder exceptional circumstances to better serve the interest ofjustice,[20] such circumstances are not present in the case atbar.

 Petitioner’s attempt to pass the buck on the sickness of its

former counsel, Atty. Catangui, is not a compelling reason forthis Court to relax the strict requirement for the timelypayment of appellate docket fees. While this Court expressesgrief over the death of Atty. Catangui, his sickness[21] was notof such a nature which would have impaired his mental facultiesand one which would have prevented him from filing the docketfees. From the time he filed a notice of appeal assailing theRTC Decision, Atty. Catangui was still the Provincial LegalOfficer for 6 months prior to his transfer to his new post atthe National Commission on Indigenous Peoples. Even if thecorresponding docket fees were not paid upon the filing of thenotice of appeal, still, Atty. Catangui could have rectified thesituation by paying the fees within the 15-day reglementaryperiod to file an appeal.  As manifested by petitioner, Atty.Catangui was in the practice of law for 10 years, he shouldhave, therefore, seen to it that the stringent requirements foran appeal were complied with.

 M. A. Santander Construction Inc. v. Villanueva[22] is instructive, thus: 

In the instant case, petitioner received a copy of the Decisionof the trial court on March 3, 1998. Accordingly, it had, pursuant toSection 3, Rule 41, until March 18, 1998 within which to perfect itsappeal by filing within that period the Notice of Appeal and payingthe appellate docket and other legal fees. While petitioner filed theNotice of Appeal on March 9, 1998, or within the reglementary period,however, it paid the required docket fees only on November 13, 1998,or late by 7 months and 25 days.

 

The mere filing of the Notice of Appeal is not enough, for itmust be accompanied by the payment of the correct appellate docketfees. Payment in full of docket fees within the prescribed period ismandatory. It is an essential requirement without which the decisionappealed from would become final and executory as if no appeal hadbeen filed. Failure to perfect an appeal within the prescribed periodis not a mere technicality but jurisdictional and failure to perfectan appeal renders the judgment final and executory.

 

In Guevarra vs. Court of Appeals, where the docket fees werenot paid in full within the prescribed period of fifteen (15)days but were paid forty-one (41) days late due to "inadvertence,oversight, and pressure of work," we held that the Court ofAppeals correctly dismissed the appeal. In Lee vs. Republic ofthe Philippines, where half of the appellate docket fee was paidwithin the prescribed period, while the other half was tenderedafter the period within which payment should have been made, weruled that no appeal was perfected. Clearly, where the appellatedocket fee is not paid in full within the reglementary period,the decision of the trial court becomes final and no longersusceptible to an appeal. For once a decision becomes final, theappellate court is without jurisdiction to entertain the appeal.[23]

  Withal, it bears to stress that Appeal is not a

constitutional right, but a mere statutory privilege. It must beexercised strictly in accordance with the provisions of the lawand rules. Specifically, the payment of docket fees within theperiod for perfecting an appeal is mandatory. In the presentcase, petitioner has not given sufficient reason why it shouldbe exempt from this stringent rule.

 WHEREFORE, premises considered, the petition is DENIED.

The Resolutions of the Court of Appeals, dated May 31, 2001 andNovember 19, 2001, in CA-G.R. CV No. 69735, are AFFIRMED.

 SO ORDERED.

Province of Camarines Sur vs CAMay 17, 1993

FACTS: Sangguniang Panlalawigan (SP) of Cam Sur passed Res. 129 authorizing the Prov. Gov. To purchase/expropriate property to establish a pilot farm for non-food and non-agricultural crops and housing project for the government employees. By virtue of the resolution, Cam Sur filed 2 cases for expropriation against private respondents (San Joaquins).

RTC: denied motion to dismiss on the ground of inadequacy of price of San Joaquins.CA: San Joaquins raised issue of a) declaring the resolution null and void,b) complaint for expropriation de dismissed. CA asked Sol Gen to give comment.

SolGen: under the LGC, no need for approval by the OP of the exercise of the SP of the right to eminent domin. However, approval of DAR must first be secured (since this involves appropriation of agricultural lands).CA: set aside order of RTC (without however disposing of the issues raised.The SC said that the CA assumed that the resolution is valid and the expropriation is for a public use).

Issues: 1) WON the resolution is null and void. Corollary to this issue is WON the expropriation is for a public use.2) WON the exercise of the power of eminent domain in this case is restricted by the CAR Law?3) WON the complaint for expropriation may be dismissed on the ground of inadequacy of the compensation offered?

Held/ratio:1) The expropriation is for a public purpose, hence the resolution is

authorized and valid.SC explained that there had been a shift from the old to the new

concept of “public purpose:. Old concept is that the property must actually be used by the general public. The new concept, on the other hand, means public advantage, convenience or benefit, which tends to contribute to the general welfare and the prosperity of the whole community.

In this case, the proposed pilot development center would inure to the direct benefit and advantage of the CamSur peeps. (How?) invaluable info and tech on agriculture, fishery, and cottage industry, enhance livelihood of farmers and fishermen, etc.

2) No, (citing Ardana vs Reyes, SC here said that the implication of the Ardana case is that) thepower of expropriation is superior to the power to distribute lands under the land reform program.

Old LGC does not intimate in the least that LGUs must first secure approval of the Dept of Land Reform for conversion of agri to non-agri use. Likewise, no provision in the CAR Law subjecting expropriation by LGUs to the control of DAR.

Moreover, Sec 65 of CAR Law is not in point because it is applicable only to lands previously placed under the agrarian reform program. This is limited only to applications for reclassification submitted by land owners or tenant beneficiaries.

Statutes conferring power of eminent domain to political subdivisions cannot be broadened or constricted by implication.

3) Fears of private respondents that they will be paid on the basis of the valuation decalred in the tax declarations of their property, are unfounded.

It is unconstitutional to fix just compensation in expropriation cases based on the value given either by the owners or the assessor. Rules for determining just compensation are those laid down in Rule 67

ROC, evidence must be submitted to justify what they consider is the just compensation.

Province of Camarines Sur vs. Court of Appeals [GR 103125, 17 May 1993]

First Division, Quiason (J): 3 concur

Facts: On 22 December 1988, the Sangguniang Panlalawigan of the Province ofCamarines Sur passed Resolution 129, Series of 1988, authorizing the Provincial Governor to purchase or expropriate property contiguous to the provincial capitol site, in order to establish a pilot farm for non-food and non-traditional

agricultural crops and a housing project for provincial government employees. Pursuant to the Resolution,

the Province of Camarines Sur, through its Governor, Hon. Luis R. Villafuerte, filed two separate cases for

expropriation against Ernesto N. San Joaquin and Efren N. San Joaquin with the Regional Trial Court, Pili,

Camarines Sur (Hon. Benjamin V. Panga presiding; Special Civil Action Nos. P-17-89 and P-19-89).

Forthwith, the Province of Camarines Sur filed a motion for the issuance ofa writ of possession. The San

Joaquins failed to appear at the hearing of the motion. The San Joaquins moved to dismiss the complaints on

the ground of inadequacy of the price offered for their property. In an order dated 6 December 1989, the trial

court denied the motion to dismiss and authorized the Province of CamarinesSur to take possession of the

property upon the deposit with the Clerk of Court of the amount of P5,714.00, the amount provisionally fixed

by the trial court to answer for damages that San Joaquin may suffer in theevent that the expropriation cases

do not prosper. The trial court issued a writ of possession in an order dated 18 January 1990. The San

Joaquins filed a motion for relief from the order, authorizing the Provinceof Camarines Sur to take

possession of their property and a motion to admit an amended motion to dismiss. Both motions were denied

in the order dated 26 February 1990. The San Joaquins filed their petition before the Court of Appeals,

praying (a) that Resolution No. 129, Series of 1988 of the Sangguniang Panlalawigan be declared null and

void; (b) that the complaints for expropriation be dismissed; and (c) that the order dated December 6, 1989 (i)

denying the motion to dismiss and (ii) allowing the Province of Camarines Sur to take possession of the

property subject of the expropriation and the order dated February 26, 1990, denying the motion to admit the

amended motion to dismiss, be set aside. They also asked that an order be issued to restrain the trial court

from enforcing the writ of possession, and thereafter to issue a writ of injunction. The Court of Appeals set

aside the order of the trial court, and ordered the trial court to suspend the expropriation proceedings until

after the Province of Camarines Sur shall have submitted the requisite approval of the Department of Agrarian

Reform to convert the classification of the property of the San Joaquins from agricultural to non-agricultural

land. The Province of Camarines Sur filed a petition for certiorari before the Supreme Court.

Held: Local government units have no inherent power of eminent domain and can exercise it only when

expressly authorized by the legislature. In delegating the power to expropriate, the legislature may retain

certain control or impose certain restraints on the exercise thereof by thelocal governments. While such

delegated power may be a limited authority, it is complete within its limits. Moreover, the limitations on the

exercise of the delegated power must be clearly expressed, either in the law conferring the power or in other

legislations. It is the legislative branch of the local government unit that shall determine whether the use of

the property sought to be expropriated shall be public, the same being an expression of legislative policy. The

courts defer to such legislative determination and will intervene only whena particular undertaking has no

real or substantial relation to the public use. Statutes conferring the power of eminent domain to political

subdivisions cannot be broadened or constricted by implication. Section 9 of BP 337 does not intimate in the

least that local government units must first secure the approval of the Department of Land Reform for the

conversion of lands from agricultural to non-agricultural use, before they can institute the necessary

expropriation proceedings. Likewise, there is no provision in the Comprehensive Agrarian Reform Law which

expressly subjects the expropriation of agricultural lands by local government units to the control of the

Department of Agrarian Reform. The rules on conversion of agricultural lands found in Section 4 (k) and 5 (1)

of Executive Order 129-A, Series of 1987, cannot be the source of the authority of the Department of

Agrarian Reform to determine the suitability of a parcel of agricultural land for the purpose to which it would

be devoted by the expropriating authority. While those rules vest on the Department of Agrarian Reform the

exclusive authority to approve or disapprove conversions of agricultural lands for residential, commercial or

industrial uses, such authority is limited to the applications for reclassification submitted by the land owners

or tenant beneficiaries. Further, there has been a shift from the literal to a broader interpretation of "public

purpose" or "public use" for which the power of eminent domain may be exercised. The old concept was that

the condemned property must actually be used by the general public (e.g. roads, bridges, public plazas, etc.)

before the taking thereof could satisfy the constitutional requirement of "public use". Under the new concept,

"public use" means public advantage, convenience or benefit, which tends tocontribute to the general welfare

and the prosperity of the whole community, like a resort complex for tourists or housing project. The

expropriation of the property authorized by Resolution 129, Series of 1988,is for a public purpose. The

establishment of a pilot development center would inure to the direct benefit and advantage of the people of

the Province of Camarines Sur. Once operational, the center would make available to the community

invaluable information and technology on agriculture, fishery and the cottage industry. Ultimately, the

livelihood of the farmers, fishermen and craftsmen would be enhanced. The housing project also satisfies the

public purpose requirement of the Constitution. Housing is a basic human need. Shortage in housing is a

matter of state concern since it directly and significantly affects public health, safety, the environment and in

sum the general welfare. Thus, the decision of the Court of Appeals is set aside insofar as it (a) nullifies the

trial court's order allowing the Province of Camarines Sur to take possession of the property of the San

Joaquins; (b) orders the trial court to suspend the expropriation proceedings; and (c) requires the Province of

Camarines Sur to obtain the approval of the Department of Agrarian Reform to convert or reclassify the

property of the San Joaquins property from agricultural to non-agriculturaluse.

Province of Cam Sur v CA, 222 SCRA 137, GR 103125 

facts: On December 22, 1988, the Sangguniang Panlalawigan of the Provinceof Camarines Sur passed a Resolution authorizing the Provincial Governor topurchase or expropriate property contiguous to the provincial Capitol site,in order to establish a pilot farm for non-food and non-traditionalagricultural crops and a housing project for provincial governmentemployeesPursuant to the Resolution, the Province of Camarines Sur, through itsGovernor, filed two separate cases for expropriation against Ernesto N. SanJoaquin and Efren N. San Joaquin, at the Regional Trial Court, Pili,Camarines Sur.The San Joaquins moved to dismiss the complaints on the ground ofinadequacy of the price offered for their property. In an order, the trialcourt denied the motion to dismiss and authorized the Province of CamarinesSur to take possession of the property upon the deposit with the Clerk ofCourt the amount provisionally fixed by the trial court to answer fordamages that private respondents may suffer in the event that theexpropriation cases do not prosper.

The San Joaquins filed a motion for relief from the order, authorizing theProvince of Camarines Sur to take possession of their property and a motionto admit an amended motion to dismiss. Both motions were denied in theorder dated February 26, 1990.

In their petition before the Court of Appeals, the San Joaquins asked: (a)that Resolution of the Sangguniang Panlalawigan be declared null and void;(b) that the complaints for expropriation be dismissed; and (c) that theorder denying the motion to dismiss and  allowing the Province of CamarinesSur to take possession of the property subject of the expropriation and theorder dated February 26, 1990, denying the motion to admit the amendedmotion to dismiss, be set aside. They also asked that an order be issued torestrain the trial court from enforcing the writ of possession, andthereafter to issue a writ of injunction.

Asked by the Court of Appeals to give his Comment to the petition, theSolicitor General stated that under Section 9 of the Local Government Code(B.P. Blg. 337), there was no need for the approval by the Office of thePresident of the exercise by the Sangguniang Panlalawigan of the right ofeminent domain. However, the Solicitor General expressed the view that the

Province of Camarines Sur must first secure the approval of the Departmentof Agrarian Reform of the plan to expropriate the lands of petitioners foruse as a housing project.The Court of Appeals set aside the order of the trial court, allowing theProvince of Camarines Sur to take possession of private respondents' landsand the order denying the admission of the amended motion to dismiss. Italso ordered the trial court to suspend the expropriation proceedings untilafter the Province of Camarines Sur shall have submitted the requisiteapproval of the Department of Agrarian Reform to convert the classificationof the property of the private respondents from agricultural to non-agricultural land.

Issue: WON the Province of Cam Sur must first secure the approval of theDepartment of Agrarian Reform of the plan to expropriate the lands of theSan Joaquins.

HELD: To sustain the Court of Appeals would mean that the local governmentunits can no longer expropriate agricultural lands needed for theconstruction of roads, bridges, schools, hospitals, etc., without firstapplying for conversion of the use of the lands with the Department ofAgrarian Reform, because all of these projects would naturally involve achange in the land use. In effect, it would then be the Department ofAgrarian Reform to scrutinize whether the expropriation is for a publicpurpose or public use.

Ratio: WHEREFORE, the petition is GRANTED and the questioned decision ofthe Court of Appeals is set aside insofar as it (a) nullifies the trialcourt's order allowing the Province of Camarines Sur to take possession ofprivate respondents' property; (b) orders the trial court to suspend theexpropriation proceedings; and (c) requires the Province of Camarines Surto obtain the approval of the Department of Agrarian Reform to convert orreclassify private respondents' property from agricultural to non-agricultural use.  The decision of the Court of Appeals is AFFIRMED insofar as it sets asidethe order of the trial court, denying the amended motion to dismiss of theprivate respondents.

PROVINCE OF CAMARINES SUR vs. CA and TITO B. DATOJuly 14, 1995; KAPUNAN, J.FACTS:In January 1, 1960 - private respondent Dato was appointed as Private Agentby the then Gov. of Camarines Sur, Apolonio Maleniza.October 12, 1972 -Dato was promoted and appointed Assistant Provincial Warden by then Gov.Felix Alfelor, Sr.Dato had no civil service eligibility for the position hewas appointed to, thus, he could not be legally extended apermanentappointment. He was extended a temporary appointment, which wasrenewed annually. January 1, 1974 – Gov. Alfelor approved the change inDato's employment status from temporary to permanent upon thelatter'srepresentation that he passed the civil service examination forsupervising security guards. Said change of status however, wasnotfavorably acted upon by the Civil Service Commission (CSC) reasoningthat Dato did not possess the necessary civil service eligibilityfor theoffice he was appointed to. His appointment remained temporary and no otherappointment was extended to him.March 16, 1976 – Dato was indefinitelysuspended by Gov. Alfelor after criminal charges were filed against him and

a prison guard forallegedly conniving and/or consenting to evasion ofsentence of some detention prisoners who escaped from confinement. Twoyears after the request for change of status was made, Mr. Lope B. Rama,head of the Camarines Sur Unit of the Civil ServiceCommission, wrote theGov. a letter informing him that the status of private respondent Dato hasbeen changed from temporary topermanent, the latter having passed theexamination for Supervising Security Guard. The change of status was to bemaderetroactive to June 11, 1974, the date of release of saidexamination.Sangguniang Panlalawigan, suppressed the appropriation for theposition of Assistant Provincial Warden and deleted privaterespondent'sname from the petitioner's plantilla.Dato was subsequently acquitted of thecharges against him. Consequently, he requested the Gov. for reinstatementand backwages.His request was not heeded. Dato filed an action before theRTC.RTC Decision: Ordered the payment of backwages of Dato equivalent tofive years. Province of Camarines Sur appealed the decisionto the CA.CA:Affirmed RTC’s decision. Hence the present petition.

ISSUE:W/N Dato was a permanent employee of petitioner Province of Camarines Surat the time he was suspended on March 16,1976.Petitioner’s contention: WhenGov. Alfelor recommended to CSC the change in the employment status ofprivate respondent fromtemporary to permanent, which the CSC approved asonlytemporary pending validation of the results of private respondent'sexamination forsupervising security guard, private respondent's appointment in effectremained temporary. Hence, his subsequentqualification for civil serviceeligibility did notipso factoconvert his temporary status to that of permanent.

SC Held:Agrees with Petitioner’s contentions. Dato, being merely a temporaryemployee, is not entitled to his claim for backwagesfor the entire periodof his suspension.

Ratio:At the time Dato was appointed Assistant Provincial Warden on January 1,1974, he had not yet qualified in an appropriateexamination for theaforementioned position. Such lack of a civil service eligibility made hisappointment temporary and without afixed and definite term and is dependent entirely upon thepleasure of the appointing power. The fact that private respondent obtainedcivil service eligibility later on is of no moment as his having passed thesupervisingsecurity guard examination, did notipso factoconvert his temporary appointment into a permanent one. What is required is a newappointment since a permanent appointment is not acontinuation of the temporary appointment — these are two distinct acts oftheappointing authority The letter communicated by Mr. Lope Rama to theGov. of Camarines Sur is a clear arrogation of power properly belonging totheappointing authority. CSC has the power to

approveordisapprovean appointment set before it. It does not have the power to maketheappointment itself or to direct the appointing authority to change theemployment status of an employee. CSC should have endedits participation inthe appointment of private respondent on January 1, 1974 when it confirmedthetemporary status of the latterwho lacked the proper civil service eligibility. Whenit issued the foregoing communication on March 19, 1976, it stepped on thetoesof the appointing authority, thereby encroaching on the discretionvested solely upon the latter

Republic of the PhilippinesSUPREME 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 indefensibleposition sparked this long drawn out controversy. Knowing fully well that, as temporary employees whose terms of office, whether by contract or by thetenor 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 Order 3of 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 judgmentordering 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 ActNo. 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 appointmentwent 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 wasrelieved 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 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 notbeen 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 hereinprivate 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.

I

The judgment of respondent Judge Salvador P. de Guzman, Jr. which orders the reinstatement of Ms. Rosario V. Cerillo to the position of "Coordinatorfor Extension Services" is patently improper because it finds no support asto 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 actingcapacity 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 infaithfulness 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 petitionerCol. Julian J. Loleng, Jr. a letter 7 mandating that temporary appointmentsof 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 meanthat, should they acquire civil service eligibilities within that period ofthree years, they cannot be terminated from the service.

The fact that private respondent Cerillo passed the requisite Civil ServiceExamination after the termination of her temporary appointment is no reasonto 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 theinterests 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 temporaryappointments. 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 andefficient 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 appointingauthority. 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 thecase 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 seemto 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, theCourt 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 ofattorney's fees must be disallowed for want of factual and legal premise inthe 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 ofMs. Rosario V. Cerillo and the payment to the latter of back wages and attorney's fees, and the Order, dated June 29, 1994, of respondentJudge 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.

Feliciano, Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Puno, Vitug, Kapunan, Mendoza and Francisco, JJ., concur.

Narvasa, C.J. and Melo, JJ., are on leave.

Footnotes

Sec. Ricardo T.

Gloria [D.E.C.S.], et al.,

petitioners

vs Judge Salvador P.

De Guzman

, Jr., et al.,

respondents

.

G.R. No. 116183 October 6, 1995

FACTS:

Private respondents were employees of the Philippine Air Force College of Aeronautics (PAFCA) by virtue oftemporary appointments because at the time of their appointment, they lacked appropriate civil service eligibilities orotherwise failed to meet the necessary qualification standards for their respective positions. One of them was RosarioCerillo who was appointed as Board Secretary II of PAFCA. However she was relieved from the position by reason ofloss of confidence. Subsequently, she was designated as "Coordinator for Extension Services". Said appointmentsexpired when the PAFCA was dissolved and replaced by the PSCA (Philippine State College of Aeronautics)Aggrieved, private respondents filed a Petition for Mandamus and Reinstatement for reinstatement before the RTC ofPasay Petitioners filed an answer upon the ground that mandamus will not lie to compel reinstatement because thereappointment prayed for is discretionary on the part of the appointing power (Board of Trustees). Respondent Judgede Guzmanrendered a decision ordering the reinstatement of Cerillo as coordinator for extension services. Thus,Sec. Gloria filed a petition for certiorari under Rule 65 to the SC.

ISSUE:

Whether or not private respondent Rosario V. Cerillo is entitled to reinstatement to the position of"Coordinator for Extension Services"?

RULING:

The judgment of respondent Judge de Guzman which orders the reinstatement of Ms. Rosario V. Cerillo tothe position of "Coordinator for Extension Services" is patently improper because it finds no support as to facts andthe law. The fact is that private respondent's assignment to the said position was a mere designation. Not being apermanent appointment, the designation to the position cannot be the subject of a case for reinstatement.The fact that private respondent Cerillo passed the requisiteCivil Service Examination after the terminationof her temporary appointmentis no reason to compel petitioners to reappoint her. Acquisition of civil service eligibilityis not the sole factor for reappointment. Still to be considered by the appointing authority are: performance, degree ofeducation, work experience, training, seniority, and, more importantly, as in this case, whether or not the applicantenjoys the confidence and trust of the appointing power, considering that the position of Board Secretary II, by itsnature, is primarily confidential. Reappointment to such position is an act which is discretionary on the part of theappointingpower hence 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 beperformed by the officer in which it is vested according to his best lights, the only condition being that the appointeeshould possess the qualifications required by law. Such exercise of the discretionary power of appointment cannot becontrolled, not even by the Court as long as it is exercised properly by the appointing authority.

Thus the order of thelower court for the reinstatement of the private respondent amounts to an undue interference by the court in theexercise of a discretionary power vested in the PSCA Board of Trustees.To the question as to the legality of the termination of the services of the petitioners, the only answer is therewas no termination to speak of. Termination presupposes an overt act committed by a superior officer. There wasnone whatsoever in the case at bar. At most, PSCA Chairman of the Board of Trustees Col. Julian gave notice to thepetitioners of the expiration of their respective contracts, Petitioners appointment or employment simply expired eitherby its very own terms, or because it may not exceed one year,but most importantly because the PAFCA wasdissolved and replaced by the PSCA.

Gloria v. De Guzman, Jr.GR No. 116183

Gloria v. De Guzman, Jr.GR No. 116183, 6 October 1995Facts:Private respondents were employees of the Philippine Air Force College of Aeronautics(PAFCA). Under the PD creating it, the Board of Trustees (BOT) is w/ authority toappoint officials & employees of the college, except the members of the BOT themselves& the President of the College. In line w/ this, the BOT issued a resolution in 1991 w/cdeclared that all faculty/administrative employees are also subject to the required civilservice eligibilities. Thus, private respondents were issued only temporary appointments because at the time of their appointments, they lacked appropriate civil serviceeligibilities or otherwise failed to meet the necessary qualification standards for their respective positions. The temporary appointments were good & renewable only up to1992. Private respondent Cerillo was issue a 1-year temporary appointment to the positionof Board Secretary II which is until December 31, 1992. However, on March24, 1992, she was relieved as Board Secretary by reason of loss of confidence &designated as Coordinatior for extension Services. Subsequently, when the PAFCA wasconverted into a state college, the OIC of the BOT informed private respondents that theyshall be deemed separated from the service upon the expiration of their temporaryappointments. After the lapse of their temporary appointments, private respondents fileda petition for mandamus & reinstatement praying that the DECS Secretary complete thefilling up positions for BOT & order said board to reinstate the respondents in the case at bench to their respective positions.Issue:Whether a mandamus will lie to compel reinstatement of private respondents to their positionsHeld: No. The judgment of respondentJudge which orders the reinstatement of Cerillo to the position of "Coordinator for Extension Services" is patently improper because it finds nosupport as to facts and the law. Respondent Cerillo, although temporarilyextended anappointment as Board Secretary II, was dismissed therefrom because of loss of confidence. This dismissal was neither contested nor appealed from by Ms. Cerillo. Thereis no question, therefore, that her dismissal as Board Secretary II could not have been thesubject 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 of the position cannot be the subject of a case for reinstatement. Furthermore, even granting thatCerillo could be validly reinstated as "Coordinator for Extension Services," her reinstatement thereto would not be possible because the position is not provided for in thePSCA 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 asCoordinator. As a mere designee, she could not have acquired any right to the positioneven if the position existed. At any rate, a mere "designation" does not confer upon thedesignee security of tenure in the position or office which he occupies in an acting.

Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

G.R. No. L-65439 November 13, 1985

PAMANTASAN NG LUNGSOD NG MAYNILA, petitioner vs.HON. INTERMEDIATE APPELLATE COURT, HON. FILEM0N FERNANDEZ, JR., HON. ALBINAMANALODANS as Commissioners of Civil Service Commission and HERNANI P. ESTEBAN, respondents.

Office of the Legal Officer for petitioner.

 

GUTIERREZ, JR., J.:

The sole issue raised in this petition is the status of respondent Hernani Esteban's appointment as Vice-President for Administration of the Pamantasan ng Lungsod ng Maynila that is, whether or not he holds the position in a permanent capacity as to guarantee as security of tenure.

Respondent Esteban asserts that his appointment is permanent whereas the petitioner maintains its temporary and contractual nature such that the respondent may be dismissed at any time even without cause.

Prior to his joining the Pamantasan, Dr. Esteban had been a permanent employee in the government service for twenty five (25) years. Until May 20, 1973, he was officially connected with the Philippine College of

Commerce, a state-owned educational institution as its Vice-President for Academic Affairs. Shortly before that date, the Board of Trustees of the College in a bold move to streamline the college organization resolve to abolish the position of Vice-President for Academic Affairs. Private respondent was given the option to continue teaching at the Philippine College of Commerce which he accepted until his transfer to the Pamantasan ng Lungsod ng Maynila, upon the invitation of its president, Dr. Consuelo Blanco.

At the Pamantasan, Dr. Esteban was initially extended an ad interim temporaryappointment as Vice-President for Administration by Dr. Consuelo Blanco. Dr. Esteban received from the Secretary of Pamantasan a 'Notification of Confirmation of Temporary Appointment' dated June 28, 1973. His appointmentwas 'effective May 21, 1973 until June 30, 1974, unless sooner terminated.'On July 5, 1974, the Secretary of Pamantasan sent him a 'Notification of Renewal of Temporary Appointment' indicating that his appointment was renewed 'effective July 1, 1974 until August 31, 1974.'

A month later, on August 30, 1974, he received from the University Secretary another 'notification of renewal of temporary appointment' informing him that the Board of Regents, on recommendation of the Presidentof the University approved the renewal of his appointment 'effective September 1, 1974 until June 30, 1975' with an increased salary of P17,160 per annum.

On October 15, 1974, incident to a further increase of his salary, Dr. Esteban was notified that his appointment as vice-president for administration at a salary of P17,600 per annum had been renewed effective September 1, 1974 until June 30, 1975.

On June 26, 1975, he received another 'Notification of Renewal of TemporaryAppointment' as Vice-President for Administration with at salary of P21,760 per annum, 'effective July 1, 1975 until June 30, 1976.'

On July 26, 1975, Dr. E qqqsteban discovered that he was not included in the list of employees recommended for permanent appointments. He wrote Dr. Consuelo Blanco requesting the conversion of his temporary appointment to apermanent one, considering his two and half (2½) years service.

On July 26, 1975, Dr. Esteban received an answer to his request from President Blanco who indicated various reasons for her not acting favorablyon his request.

On August 1, 1975, Dr. Esteban received a 'Notification of Ad Interim Appointment notifying him that the president of the university had approvedhis appointment as Professor III with a salary of P15,600 per annum 'effective August 1, 1975'. He was further designated as Director ofthe Institute of Continuing Education and Community Service with an honorarium of P5,676 per annum, likewise effective August 1, 1975.

On August 7, 1975, Dr. Consuelo Blanco, issued a memorandum circular terminating Dr. Esteban's appointment as Vice-President for Administration effective July 31, 1975. His appointment dated June 26, 1975 and effective until June 30, 1976 had been withdrawn before it could be confirmed by the Pamantasan Board of Regents.

On the same date, August 7, 1975, Dr. Esteban appealed to the Civil ServiceCommission for the protection of his tenure in the Pamantasan .

On October 9,1975, the Civil Service Commission ruled that:

The temporary nature of the appointment issued to Dr. Esteban as Vice President for Administration is conceded. Such being the Case, his services may be terminated at any time with or without request that he be extended permanent appointment ,or that his temporary appointment be converted into permanent one, it may be stated that the issuance of such appointment is addressed to the sound discretion of the appointing official.

Dr. Esteban flied a motion for the reconsideration of that ruling. On January 14, 1976, the Civil Service Commission ruled favorably on Dr. Esteban's motion. It stated that he was fully qualified for the position ofVice-President for Administration and certified him "for appointment therein under permanent status." The Commission stated:

In view thereof, and in the absence of any apparent justifiable reason why Dr. Esteban should remian under temporary status for the length of time prior to the withdrawal of his appointment as Vice President for Administration in that University, and as it further appears that he is fully qualified for the position in question in view of his extensive experience in the fields of public administration and management, this Commission hereby certifies him for appointment therein under permanent status.

The Pamantasan, in turn, asked for the reconsideration of that ruling.

The Commission, in an undated Resolution No. 75, Series of 1976, came out with a statement which confused more than it clarified. It stated that its certification should not be interpreted as directing the reinstatement of Dr. Esteban because 'it was never intended to be so

On May 28, 1976 Esteban asked the commission to reconsider Resolution No. 75, Series of 1976. He also asked for the payment of the salaries and allowances due him as of September 1975, which the Pamantasan had withheld.His request was denied by the commission in its undated resolution No. 158,Series of 1976.

On September 15, 1976 Esteban reiterated his request for payment of his salaries.

On September 20, 1976, he asked for a review of the Pamantasan's decision to terminate his appointment as Vice-President for Administration.

On December 1, 1976, his request for payment of his salaries was referred by the Commission to the treasurer of the Pamantasan.

On July 6, 1977, the Commission again modified its earlier resolution in ascase. It ruled that Dr. Consuelo Blanco, had no authority to extend to Dr. Esteban an ad interim appointment as Vice President for Administration as only the Board of Regents was empowered to do that under Article 55 of the University Charter (Rep. Act 4196). However, it ruled that, as a de facto officer, he was entitled to be paid the salary of that position.

Dr. Esteban and the Pamantasan filed motions for reconsideration of that ruling prompting the Commission to order them to submit "all papers and documents pertinent to that case."

On June 6, 1978, Presidential Decree No.1409 was issued creating a Merits System Board in the Civil Service Commission to hear and decide cases brought before it on appeal by officers and employees who feel aggrieved bythe determination of officials on personnel matters.

The Board required the Pamantasan to submit its complete records on the appointment and termination of Dr. Esteban as vice-president for administration.

While the records officer of the Pamantasan submitted copies of the noticessent to Esteban regarding his appointment as vice-president for administration, he did not submit a copy of the Board's Resolution No. 485 passed June 20, 1973 confirming the ad interim appointments of several academic and non-academic personnel of said university among which was thatof Dr. Hernani Esteban "effective May 21, 1973." He produced a copy of the memorandum circular dated August 7, 1915 of the President of the Pamantasanterminating Dr. Esteban's service as of July 31, 1975.

In Resolution No. 597 dated November 11, 1980, the Commissioner directed the Pamantasan to submit any document or documents directly or actually showing that Dr. Hernani Esteban was appointed vice-president for administration of the Pamantasan in a permanent capacity.

On January 15, 1981, the Pamantasan by 2nd Indorsement, despite the existence of Board Resolution No. 485, replied that "we cannot find any document showing that Dr. Esteban was appointed ... in a permanent capacity.

In view of the Pamantasan's failure to produce the minutes of the regular Board of Regents meeting on June 20, 1973 when Esteban's appointment was approved the Commission in its Resolution No. 81-279 dated March 5, 1981, concluded that there is truth to the claim of Dr. Esteban that his appointment as Vice-President for Administration of the Pamantasan was approved as permanent. It cited Government of the Philippine Islands vs. Martinez, (44 Phil. 817) that when a party has it in his possession or power to produce the best evidence of which the case in its nature is susceptible and withholds it, the fair presumption is that the evidence is withheld for some sinister motive and that its production would thwart his evil or fraudulent purpose.

The Commission ruled that "Dr. Hernani Esteban had been appointed Vice-President for Administration of Pamantasan with permanent status and that the temporary appointment issued to him did not alter his permanent status as he had 'already acquired a vested right as well as the right to securityof tenure', that he cannot unceremoniously removed therefrom, nor can the status of his appointment be changed without cause, as provided by law and after due process." The Commission held that the termination of his services was obviously illegal. It directed his immediate reinstatement to the position of Vice-President for Administration of Pamantasan and the payment of his back salaries, allowances and other benefits which he failedto receive from the time he was separated therefrom.

The Pamantasan filed a motion for reconsideration of that resolution. It also submitted for the first time a copy of Resolution No. 485.

The Commission, in Resolution No. 71-510 dated April 23, 1981 chided the Pamantasan for having suppressed said piece of evidence from which "the intention of, or the accurate action taken by PLM Board of Regents on Dr.

Esteban's appointment in question, may be determined." Following the decision of the Supreme Court in the case of Summers v. Ozaeta, (81 Phil. 760), the Commission denied the Pamantasan's motion for reconsideration andruled that "Upon confirmation of the Board of Regents of the ad interim appointment of Dr. Esteban the same became permanent."

Upon getting this ruling, the Pamantasan filed a petition for certiorari against Dr. Esteban and Civil Service Commissionssioners Filemon Fernandez, Jr. and Albina Manalo Dans. The petition was docketed asCivil Case No. 139840 of the Court of First Instance of Manila, Branch XIII.

On January 8, 1982, the trial court rendered a decision reversing the Commission's Resolution No. 81-279 and adopted the earlier Commission Resolution dated July 6, 1977 holding that Private respondent Dr. Esteban'sappointment was invalid, though he may be considered as a de facto vice-president of the University up to October 9, 1975, the date when the Commission ruled that his appointment was temporary and could be terminatedat any time.

The private respondent appealed to the Intermediate Appellate Court.

On September 26, 1983. the respondent Intermediate Appellate Court rendereda decision reversing the trial court's decision. The dispositive portion ofthe appellate decision reads:

Wherefore, the appealed decision is hereby revised and set aside.The Pamantasan's petition forcertiorari is denied. Resolution No 81-279 dated March 5, 1981, as well as Resolution No. 81-510 dated April 23, 1981, of the respondent Civil Service Commission, declaring as permanent the appointment of the appellant Dr. Hernani Esteban as vice- president for administration of the university under the Board of Regents' Resolution No. 485 dated June 20, 1973, and ordering his immediate reinstatement to that position with back salaries, allowances and other benefits, is affirmed, provided he has not yet reached the age of compulsory retirement from the government service; otherwise, he shall be entitled to back salaries, allowances and other benefits only up to the time he should handle been reared from the said position.

From the decision of the Intermediate Appellate Court and after its motion for reconsideration had been denied petitioner Pamantasan ng Lungsod ng Maynila filed the present petition, now the subject of this review.

We find no error in the pronouncements of the Intermediate Appellate Court.We rule in favor of the respondents.

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 literaltranslation of the word "ad interim" which creates such belief. The term isdefined 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 ofRegents, which is originally vested by the University Charter with the power of appointment, is unable to act. Thus, we held in Summers v. Ozaeta (81 Phil. 760):

... 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 beeffective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress.' lt 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.

Not only is the appointment in question an ad interim appointment, but the same is also a confirmed ad interimappointment. In its Resolution No. 485, dated June 20, 1973, the Pamantasan Board of Regents verified respondent Esteban's appointment without condition nor limitation as to tenure. As of that moment, it became a regular and permanent appointment.

In other words, if the Board of Regents is in session, the Pamantasan President merely nominates while the Board issues the appointment. But whenthe Board is not in session, the President is authorized to issue ad interimappointments. Such appointments are permanent but their terms are only until the Board disapproves them. If confirmed, the appointee's term is converted into the regular term inherent in the position.

Petitioner centers its arguments and tries to fix the attention of the court to the fact that all notices of appointments, renewals, and confirmation thereof all declare the same to be temporary, carrying fixed commencement and termination dates, "unless sooner terminated." As expressed by public respondent, "... This stubborn insistence is anchored on the notifications of temporary appointment sent to private respondent Esteban by the Secretary of Pamantasan. However, this insistence deliberately ignores ... Resolution No. 485 dated June 20, 1973 of the Board of Regents ...". And correctly so argued. "In case of conflict between a notification issued by the Secretary of the University which is supposed to reflect the true content of a Board Resolution and the Resolution itself of said Board of Regents of said University, the latter is controlling for obvious reasons. The Secretary of the University has no authority to alter or add something which is not provided for in the Resolution of the Board of Regents ...". Thus, respondent Intermediate Appellate Court held:

The permanent nature of appellant's appointment was not altered or diminished by the misleading 'notifications' which were sent to him by the secretary of the university president, referring tohis appointment as 'temporary', nor by his uninformed acceptance thereof without knowledge of the true contents of Resolution No.

485 which the university president appears to have studiously suppressed.

There is nothing in the Pamantasan Board of Regents' Resolution No. 485 which suggests that respondent Esteban's appointment was temporary. The Board's action was to confirm or reject an existing ad interimappointment. Ifrespondent's appointment was intended to be temporary, it should have been expressly stated. It cannot be made to rest on inconclusive evidence, specially because a temporary appointment divests the temporary appointee of the constitutional security of tenure against removal without cause evenif he is a civil service eligible." (Tolentino v. de Jesus, 56 SCRA 167, cited in Cortez v. Bartolome, 100 SCRA 1).

Further supporting private respondent's stand is the list of permanent personnel which was submitted to the Commission by the university presidentherself on March 3, 1975 for recognition of their permanent status by the Commission. The appellant's name was the first in that list (Exhibit 8-B). The permanent status of private respondent's appointment as Vice-President for Administration at Pamantasan was recognized by the Civil Service Commission in its lst Indorsement dated April 18, 1975 upon the request of petitioner. This fact is borne out by the records and the evidence and found as such by the Intermediate Appellate Court, the Civil Service Commission as well as the Court of First Instance.

From the foregoing, there appears an intention to deprive private respondent of his rights as a permanent appointee. With strained relations and differences in professional opinion between the private respondent and the Pamantasan President, Dr. Esteban was led to believe that his services were terminable at pleasure.

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. lt is a prerogative of the appointing power that may be availed of without liability, provided however, that it is exercised 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 prerogatives are not exercised in a malicious, harsh, oppressive, vindictive or wanton manner, or out of maliceor spite (Government Service and Insurance System v. Ayroso 96 SCRA 213). The general rule is that the power of appointment must remain unhampered byjudicial intervention. However, when the law is violated or when there is grave abuse of discretion, we have to step in. Otherwise the situation aptly described by newspaperman Jesus Bigornia would exist as he had written:

... With the sword of Damocles hanging over the heads of faculty members, the university has spawned a meek, spineless, even subservient corps of professors and instructors. (Newsman's Notes, Bulletin Today, January 23, 1976).

We cannot also sanction the termination of private respondent's services bypetitioner. With his appointment now settled as permanent., the Civil Service law and the Constitution guarantee private respondent's security oftenure as 'No officer or employe in the Civil Service shall be suspended ordismissed except for cause as provided by law" (Section 3, Article XII, the1973 Philippine Constitution). Petitioner has failed to substantiate its

allegations of incompetence against respondent Esteban whose record of government service appears quite impressive. Esteban was not dimissed for cause after proper proceedings. His appointment was terminated on the ground that it was temporary.

The intermediate Appellate Court ordered the payment of full back salaries to Dr. Esteban provided he has not reached the age of compulsory retirementfrom the government service.

It is not clear from the records as to when Dr. Esteban actually ceased working for Pamantasan. Under the law, he is entitled to full pay, allowances, and other benefits during the period that he was actually reporting for work and rendering services in whatever capacity, whether teaching, research or administration. As of backwages, the amount is generally based on the equivalent of three years' earnings (Philippine Airlines, Inc. v. National Labor Relations Commission, 126 SCRA 223; Insular Life Assurance Co., Ltd. v. National Labor Relations Commission, 135 SCRA 697). In line with the policy adopted by this Court to do away with the attendant delay in awarding backwages because of the extended hearings necessary to prove the earnings, elsewhere of each and every employee (Philippine Airlines, Inc. v. National Labor Relations Commission, supra, citing Mercury Drug Co., Inc. v. Court of Industrial Relations, 56 SCRA 694), the formula for computing the same calls for fixing the award of backwages to three years. However, in Dy Keh Beng v. International Labor and Marine Union, 90 SCRA 162, citing Mercury Drug Co.,et al. v. Court of Industrial Relations, 56 SCRA 694, 712), we held the amount of backwages to be "subject to deduction whre there are mitigating circumstances in favor of the employer, but subject to increase whree thereare aggravating circumstances. (Tupas Local Chapter No. 979, et al. v. National Labor Relations Commission, et al., G. R. No. 60532-33, November 5,\1985; Progressive Development Corporation v. Progressive Employees' Union, 80 SCRA 434.) Considering that in the case at bar, more than ten (10) years have elpased from the date respondent Esteban as to the true nature of his appointment and "studiously suppressing" material data to effectively deprive the latter of his rights as a permanent employee, we find an award of five (5) years backpay to respondent Dr. Esteban just and equitable under the circumstances, assuming he has not reached retirement age in the meantime.

WHEREFORE, the petition for review on certiorari is hereby DISMISSED for lack of merit. The decision appealed from is affirmed subject to the modification in the payment of back salaries as stated above.

SO ORDERED.

Pamantasan ng Lungsod ng Maynila vs. Intermediate Appellate Court (G.R. No. L-65439)Posted: August 10, 2011 in Case Digests, Political Law Tags: Appointment

Appointment – Security of Tenure in Ad Interim Appointments

FACTS: Dr. Esteban has the background of a competent person able to handlea high post. He used to teach in the Philippine College of Commerce when he

was invited by Dr. Blanco to teach in PLM. Blanco was then the president ofPLM. He later assigned Esteban as the VP for Academic Affairs. Hisappointment is however merely ad interim. Thereafter, he receivednotifications of renewal of his term every time his term would lapse. Untilin 1975 when he asked Blanco to appoint him as the permanent VP. Blancohowever refused to appoint him and he assigned Esteban to a lower postinstead. Blanco also said that the Board of Regents was not able to approvehis appointment as VP for it was withdrawn. Esteban file with the CSC andthe CSC ruled in favor of him. PLM appealed to the trial court and thecourt affirmed the CSC. PLM again appealed to the IAC and the IAC ruled infavor of Esteban again.

ISSUE: Whether or not Esteban’s appointment became permanent.

HELD: Esteban had been extended several “ad-interim” appointments which PLMmistakenly understands as appointments temporary in nature. An officer adinterim is one appointed to fill a vacancy, or to discharge the duties ofthe office during the absence or temporary incapacity of its regularincumbent.

But such is not the meaning nor the use intended in the context ofPhilippine law. In referring to Esteban’s appointments, the term is notdescriptive of the nature of the appointments given to him. Rather, it isused to denote the manner in which said appointments were made, that is,done by the President of the PLM in the meantime, while the Board ofRegents, which is originally vested by the University Charter with thepower of appointment, is unable to act.

Later, in its Resolution 485, the PLM Board of Regents verified Esteban’sappointment without condition nor limitation as to tenure. As of thatmoment, it became a regular and permanent appointment. Note further that “.. . an ad interim appointment is one made in pursuance of par (4), sec 10,Article 7, of the [1973] Constitution, which provides that ‘the Presidentshall have the power to make appointments during the recess of theCongress, but such appointments shall be effective only until disapprovalby the Commission on Appointments or until the next adjournment of theCongress.’ It is an appointment permanent in nature, and the circumstancethat it is subject to confirmation by the Commission on Appointments doesnot alter its permanent character. An ad interim appointment is disapprovedcertainly for a reason other than that its provisional period has expired.Said appointment is of course distinguishable from an ‘acting’ appointmentwhich is merely temporary, good until another permanent appointment isissued.”

Pamantasan ng Lungsod ng Maynila vs. Intermediate Appellate Court (G.R. No. L-65439)In 1973, Dr. Hernani Esteban was appointed by Dr. Consuelo Blanco as the Vice-President for Administration in the Pamantasan ng Lungsod ng Maynila (PLM).Esteban’s appointment was ad interim in nature (because at that time the PLMBoard of Regents was not in session). His appointment was extended in 1975.However, he later discovered that his name was not included among thoserecommended for permanent appointment. He then requested Blanco to make him apermanent appointee. Blanco, however, appointed Esteban as Professor IIIinstead and his appointment as VP for Admin was terminated. Esteban broughtthe case before the Civil Service Commission where he got a favorablejudgment. The trial court reversed the CSC. The Intermediate Appellate Courtreversed the trial court.ISSUE: Whether or not Esteban is a permanent appointee.HELD: Yes. Hence, he enjoys security of tenure. The Supreme Court explainsthat the term “ad interim” as used in the Philippines does not literallytranslate to “temporary”. In this jurisdiction an ad interimappointment is apermanent appointment. This was explained in the landmark case of Summers vsOzaeta:…an ad interim appointment is one made in pursuance of paragraph (4), section10, Article VII of the Constitution, which provides that the President shallhave the power to make appointments during the recess of the Congress, butsuch appointments shall be effective only until disapproval by the Commissionon Appointments or until the next adjournment of the Congress.’ It isan appointmentpermanent in nature, and the circumstance that it is subject toconfirmation by the Commission on Appointments does not alter its permanentcharacter. An ad interim appointment is disapproved certainly for a reasonother than that its provisional period has expired. Said appointment is ofcourse distinguishable from an ‘acting’ appointment which is merely temporary,good until another permanent appointment is issued.In other words, if the Board of Regents is in session, the PLM Presidentmerely nominates while the Board issues the appointment. But when the Board isnot in session, the President is authorized to issue ad interim appointments.Such appointments are permanent but their terms are only until the Boarddisapproves them. If confirmed, the appointee’s term is converted into theregular term inherent in the position. In the case at bar, apparently, Estebanwas confirmed by the Board of Regents in 1975. Blanco however did not relaythis confirmation to Esteban. The latter was made to believe (due to souringrelationship with Blanco) that his appointment was extended but only as anextension of temporary appointment.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

 

G.R. No. 93711 February 25, 1991

DR. EMILY M. MAROHOMBSAR, petitioner, vs.AHMAD E. ALONTO, JR., in his capacity as President of the Mindanao State University, and CORAZON BATARA, respondents.

Pedro Q. Quadra for petitioner.

Adnan V. Alonto for respondent Ahmad E. Alonto, Jr.

 

GUTIERREZ, JR., J.:p

The issue in this case is whether or not petitioner Dr. Emily M. Marohombsar, who was appointed Acting Vice-Chancellor for Academic Affairs of the Mindanao State University (MSU) Marawi Campus by the respondent President may be removed from office even without cause.

On March 22, 1988, the petitioner was designated as officer-in-charge of the Office of the Vice-Chancellor for Academic Affairs (OVCAA) of MSU in a concurrent capacity with her position then as Vice-President for External Studies.

On January 2, 1989, the Office of the Vice-President for External Studies was merged with the OVCAA and, as such, the functions of the former were tobe exercised by the latter. The petitioner was appointed acting Vice-Chancellor for Academic Affairs on the same day. The Board of Regents of the MSU, on May 16, 1989, approved her appointment as acting Vice-Chancellor for Academic Affairs.

On May 14, 1990, respondent Ahmad E. Alonto, MSU President, wrote the petitioner informing her that he has decided to tap the petitioner's talentfor the MSU system as Vice-President for Academic Affairs which position isunder the administrative staff of the respondent MSU President. The petitioner, on the same date, answered that she cannot accept the position since she has already started several projects in the OVCAA which she wantsto see through.

The respondent President, on May 16, 1990, designated Professor Macacuna Moslem as Vice-Chancellor for Academic Affairs but the latter did not accept the designation. On May 28, 1990, the respondent President issued Special Order No. 158-P designating Professor Corazon Batara, the other respondent in this case, as Officer-in-Charge of the OVCAA.

The petitioner now comes to this Court assailing her removal as Vice-Chancellor by the respondent President.

On June 21, 1990, the Court issued a temporary restraining order directing the respondents to cease and desist from enforcing and/or implementing Special Order No. 159-P and from interfering and/or preventing the petitioner from performing her duties as Vice-Chancellor for Academic Affairs of the MSU, Marawi Campus.

On November 19, 1990, the petitioner filed a motion to cite respondent Alonto for contempt, alleging that said respondent, in violation of the temporary restraining order issued by this Court submitted Special Order No. 158-P to the MSU Board of Regents for approval.

The petitioner asserts that her appointment being permanent, she can be removed only after hearing and for cause.

Resolution No. 59, S. 1989, passed by the MSU Board of Regents on May 16, 1989, reads as follows:

RESOLVED, that upon recommendation of the President of the University of the Executive Committee of the Board of Regents thefollowing Special Orders as amended/corrected are hereby confirmed:

A. DESIGNATIONS

A.1 Major designations

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9) Special Order No. 10-P, S. 1989, designating Prof. Emily M. Marohombsar as Acting Vice Chancellor for Academic Affairs, MSU Marawi Campus, with an honorarium in accordance with the approved policies of the University, subject to accounting and auditing rules and regulations, effective January 2, 1989 and shall remain in force until revoked or amended by competent authority. (Rollo, pp. 5354; Emphasis supplied)

It may be noted that the special order confirmed by the Board of Regents specifically designated the petitioner as Acting Vice-Chancellor for Academic Affairs. A bona fide appointment in an acting capacity is essentially temporary and revocable in character and the holder of such appointment may be removed anytime even without hearing or cause. (Austria v. Amante, 79 Phil. 780 [1948]; Castro v. Solidum, 97 Phil. 278 [1955]; Mendez v. Ganzon, 101 Phil. 48 [1957]; Valer v. Briones, 9 SCRA 596 [1963];Abana v. Aguipo, 15 SCRA 604 [1965]; Hojilla v. Marilao, 13 SCRA 293 [1965]. A person who accepts an appointment in an acting capacity extended and received without any protest or reservation and who acts thereunder fora considerable time cannot later be heard to say that the appointment was, in reality, permanent and therefore there can be no removal except for cause. (See Cabiling v. Pabualan, 14 SCRA 274 [1965])

There are circumstances, however, which rule against the routine or blind application of the principle which governs acting appointments to this case.

The essence of an acting appointment is its temporary nature. It is a stop gap measure intended to fill an office for a limited time until a permanentappointment is extended or a new appointee is chosen. (Austria v. Amante, supra; Castro v. Solidum, supra; and Valer v. Briones, supra)

The nature of an acting appointment limits not only the claims of the appointee to a lengthy tenure but also defines the authority of the appointing power. A public officer appointed in an acting capacity cannot claim that the appointment shall in time ripen into a permanent one. However, neither can the appointing power use the principle of temporary appointments to evade or avoid the security of tenure principle in the Constitution and the Civil Service Law. This is similar to the rule that the head of an office cannot arbitrarily convert permanent positions to primarily confidential items so that he can more freely fire and hire or rehire subordinates at his personal discretion. It is the nature of the functions attached to a position, not the nomenclature or title given by

the appointing authority which determines its primarily confidential nature. (Piñero v. Hechanova, 18 SCRA 417 [1966]) For the same reason, the Court may inquire into the true nature of an "acting" appointment to determine whether or not it is used as a device to circumvent the security of tenure principle.

In this case, the intent to make the petitioner serve at the pleasure of the respondent MSU President is obvious. The petitioner is a career official of MSU for over 27 years. She was Vice-President for External Studies since 1982. On March 22, 1988, she was given an additional assignment as Officer-in-Charge of the Office of the Vice-Chancellor for Academic Affairs concurrently with the permanent position as Vice-Presidentfor External Studies.

About nine months later, the Vice-Presidency for External Studies was "merged" with the Vice-Chancellorship for Academic Affairs. At the same time, the petitioner was appointed acting Vice-Chancellor for Academic Affairs.

The effect, therefore, was to abolish the petitioner's permanent office andgive her a temporary appointment in the supposedly new office which replaced or absorbed the former office. Another result was the loss by the petitioner of her permanent status.

There are reasons which indicate that these maneuverings by the respondent President cannot be characterized as bona fide.

Section 40.5 (paragraph 22) Article 4 of the Code of Governance of the MSU provides:

Personnel Matters. In accordance with the policies and rules prescribed by the Board, the specific powers of the President include the following (delegated powers)

xxx xxx xxx

22. Designation of any Dean, Director, or Department Chairman in acting capacity or any Officer-in-Charge for any of these positions, for a period of less than one year, such designation being made without additional compensation for the position designated except the honorarium attached to said position; PROVIDED, That the President shall report the designation in the next regular meeting after winch the designation shall be null and void unless otherwise renewed.

The power to designate is vested in the MSU President. The designation mustbe less than one year. It must be reported to the Board of Regents at the next regular meeting. After the meeting, another designation must be issuedif no permanent appointment was made. The earlier designation becomes void as the Board is expected to fill the item permanently, not merely leaving it temporarily occupied.

On the other hand, the power to appoint is vested in the Board of Regents as follows:

Sec. 6. The Board of Regents shall have the following powers and duties, in addition to its general powers of administration and the exercise of the power of the corporation;

xxx xxx xxx

(e) To appoint, on the recommendation of the President of the University, professor, instructors, lecturers and other employeesof the University. . . . — MSU Charter, RA 1387

If the President merely designates, the Board of Regents does not confirm the designation. Since it is only for theinformation of the Board, the President's action should be merely "noted."

When the Board of Regents confirmed the appointment of the petitioner on May 16, 1989, it was acting on an ad interim appointment effected by the President. No other interpretation can be validly made. If it was a mere designation, it needs no confirmation. The fact that confirmation was needed shows that it is an ad interim one. Anad interim appointment is one made during the time when the appointing or confirming body is not in session and there is an existing clear and present urgency caused by an impending obstruction or paralyzation of the functions assigned to the office if no immediate appointment is made. (Rodriguez, Jr. v. Quirino, 9 SCRA 284 [1963]) When the Vice-Presidency for External Studies was abolished and itsfunctions were merged with the Vice-Chancellorship for Academic Affairs, both the security of tenure of the occupant and the needs of the new officecalled for the ad interim appointment.

The respondent cannot use the device of an ambiguous designation to go around the security of tenure principle. Under the MSU Code, a designation requires a fixed period of not less than one year. The appointment given tothe petitioner was indefinite. She would serve at the pleasure of the MSU President who is not even the head of the institution because the head is the Board of Regents.

The intent to convert permanent items into temporary ones is apparent. The petitioner states that the purpose "is to hold the sword of Damocles hanging over the head of all MSU employees and officers." (Rollo, p. 75) TheBoard of Regents cooperated in the plan. Practically, all top officers below the President were converted into positions where the occupants serveat the pleasure of the President and presumably, the Board of Regents. Thus, at the May 16, 1989 Board of Regents' meeting at the Army and Navy Club alongside the Luneta in Manila, the following acting appointments weresubmitted for approval or confirmation:

1. Special Order No. 03-P, S. 1989, designating Atty. Tocod D. Macaraya, Sr. as Acting Executive Vice-President . . . ;

2. Special Order No. 04-P, S. 1989, designating Dr. Macaurog B. Derogongan as Acting Vice President for Academic Affairs . . . ;

3. Special Order No. 05-P, S. 1989, designating D. Corazon Bataraas Acting Assistant Vice-President for Academic Affairs . . . ;

4. Special Order No. 113-P, S. 1989, designating D. Milandre S. Rusgal as Acting Vice President for Planning and Development . . . ;

5. Special Order No. 109-P, S. 1989, designating Prof. Guimba Poingan as Acting Assistant Vice President for Planning and Development . . . ;

6. Special Order No. 60-P, S. 1989, designating Atty. Concordio Baguio as Officer-in-Charge of the Office of the Vice-President for Administration and Finance . . . ;

7. Special Order No. 07-P, S. 1989, designating Prof. Talib R. Muti as Acting Assistant Vice President for Administration and Finance . . . ;

8. Special Order No. 134-P, S. 1989, designating Prof. Emily M. Marohombsar as Acting Vice-Chancellor for Academic Affairs, MSU Marawi Campus . . . ;

10. Special Order No. 01-P, S. 1989, designating Atty. Abdul S. Aguam as Acting Vice Chancellor for Administration and Finance . . . ;

11. Special Order No. 11-P, S. 1989, designating Dr. Cosain Derico as Acting Vice Chancellor for Research and Extension . . .(Rollo, pp. 117-118)

The respondents argue that the permanent item of the petitioner is Professor VI. They state:

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Finally, petitioner has not refuted the fact that the position she actually occupies is that of Professor VI. This is precisely the reason why petitioner's designation as Acting VCAA can not bedeemed a regular or permanent appointment because, if it were so,the anomalous situation of one permanently appointed to two public positions simultaneously would arise. (Rollo, p. 130)

This argument has no merit.

As early as 1963, this Court ruled in Tapales v. President and Board of Regents of the University of the Philippines(7 SCRA 553 [1963]) that UP Deans and Directors enjoy security of tenure and any attempt to remove them by limiting their terms of office from permanent to a five (5) year term is unconstitutional. Deansand Directors are selected from faculty members. An appointment as Professor is also needed for salary rating purposes but does not detract from the permanent nature of the administrative position (id., at pp. 554 and 556). The fact that Professor Tapales was given another appointment as Director of the U.P. Conservatory of Music does not mean that the second appointment is only temporary in nature. In the present case, the fact thatProfessor Marohombsar has a permanent appointment as Professor does not detract from the permanent nature of her present appointment as Vice-Chancellor, especially since the same was duly confirmed by the MSU Board of Regents. The only difference is that her position as Vice-Chancellor hasa fixed term while that of Professor Tapales was until he retired or resigned.

The attempt of the respondent to solve the problem by placing the petitioner in his own administrative staff as Vice-President for Academic Affairs cannot be countenanced. The petitioner served in this capacity from1975 to 1978 after which she became Vice-President for External Studies in 1982. The proffered position is not only less desirable to the petitioner but she expressly rejected it, preferring to stay in her present position. She thanked the respondent but stated she would not be effective in the new

position while in the OVCAA she could complete a number of projects and programs. (Rollo, p. 21) The correctness of the petitioner's stand is explained by this Court in Sta. Maria v. Lopez (31 SCRA 673 [1970]). There aretransfers which appear to be promotions or lateral movements but are in truth demotions. There is no showing that the interest of the service wouldbe served if the proffered appointment would be forced on her.

No less than the Secretary of Education, Culture and Sports, Secretary Isidro D. Cariño opined, and the Court agrees with him, that the petitionermay not be removed from the disputed office by the MSU President without the authority of the Board. And, as correctly stated by the Secretary, Special Order No. 158-P issued by the respondent president designating respondent Batara as officer in-charge of the same office was unapproved bythe Board, hence, the special order cannot revoke, or could not have revoked the designation of the petitioner as acting Vice-Chancellor. (AnnexA, Petitioner's Memorandum, Rollo, pp. 119-120)

The respondent MSU President, perhaps realizing the vulnerability of his action, submitted Special Order No. 158-P to the Board of Regents for approval. But such submission was made after the Court already issued its temporary restraining order and consequently, his action constituted contempt of Court. Considering, however, that the respondent appears to have acted in the honest albeit mistaken belief that MSU would progress faster if the executive officers serve at his pleasure and discretion, the Court rules that declaring him in contempt would be too harsh a remedy. Therespondent President is, nevertheless, admonished for his action. When thisCourt issues a restraining order, it must be obeyed.

WHEREFORE, the petition is GRANTED. The petitioner shall remain as the lawful occupant in a permanent capacity of the position of Vice-Chancellor for Academic Affairs of MSU Marawi until the end of her three-year term or her tenure is otherwise lawfully terminated. The motion to cite respondent Alonto for contempt is DENIED but the respondent is admonished to faithfully heed court orders in the future. The Temporary Restraining Orderissued by this Court on June 21, 1990 is made PERMANENT.

SO ORDERED.

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 onElections, respondents.

D E C I S I O NCARPIO, J.:

The Case

Before us is an original Petition for Prohibition with prayer for theissuance of a writ of preliminary injunction and a temporary restrainingorder under Rule 65 of the 1997 Rules of Civil Procedure. Petitioner Ma. J.Angelina G. Matibag (“Petitioner” for brevity) questions theconstitutionality of the appointment and the right to hold office of thefollowing:  (1) Alfredo L. Benipayo (“Benipayo” for brevity) as Chairman ofthe Commission on Elections (“COMELEC” for brevity); and (2) ResurreccionZ. Borra (“Borra” for brevity) and Florentino A. Tuason, Jr. (“Tuason” forbrevity) as COMELEC Commissioners.  Petitioner also questions the legalityof the appointment of Velma J. Cinco[1] (“Cinco” for brevity) as Director IVof the COMELEC’s Education and Information Department (“EID” for brevity).

The Facts

On February 2, 1999, the COMELEC en banc appointed petitioner as “ActingDirector 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 ina “Temporary” capacity.[2]

On March 22, 2001, President Gloria Macapagal Arroyo appointed, adinterim, Benipayo as COMELEC Chairman,[3] and Borra[4] and Tuason[5] as COMELECCommissioners, each for a term of seven years and all expiring on February2, 2008.  Benipayo took his oath of office and assumed the position ofCOMELEC Chairman.  Borra and Tuason likewise took their oaths of office andassumed their positions as COMELEC Commissioners.  The Office of thePresident submitted to the Commission on Appointments on May 22, 2001the ad interim appointments of Benipayo, Borra and Tuason for confirmation.[6] However, the Commission on Appointments did not act on saidappointments.

On June 1, 2001, President Arroyo renewed the ad interim appointments ofBenipayo, Borra and Tuason to the same positions and for the same term ofseven years, expiring on February 2, 2008.[7]They took their oaths of officefor a second time.  The Office of the President transmitted on June 5, 2001their appointments to the Commission on Appointments for confirmation.[8]

Congress adjourned before the Commission on Appointments could act ontheir appointments.  Thus, on June 8, 2001, President Macapagal Arroyorenewed again the ad interim appointments of Benipayo, Borra and Tuason tothe same positions.[9] The Office of the President submitted theirappointments for confirmation to the Commission on Appointments.[10] Theytook their oaths of office anew.

In his capacity as COMELEC Chairman, Benipayo issued a Memorandum datedApril 11, 2001[11] addressed to petitioner as Director IV of the EID and toCinco as Director III also of the EID, designating Cinco Officer-in-Charge

of the EID and reassigning petitioner to the Law Department.  COMELEC EIDCommissioner-in-Charge Mehol K. Sadain objected to petitioner’sreassignment in a Memorandum dated April 14, 2001[12] addressed to theCOMELEC en banc. Specifically, Commissioner Sadain questioned Benipayo’sfailure to consult the Commissioner-in-Charge of the EID in thereassignment of petitioner.

On April 16, 2001, petitioner requested Benipayo to reconsider herrelief as Director IV of the EID and her reassignment to the LawDepartment.[13] Petitioner cited Civil Service Commission Memorandum CircularNo. 7 dated April 10, 2001, reminding heads of government offices that“transfer and detail of employees are prohibited during the election periodbeginning January 2 until June 13, 2001.” Benipayo denied her request forreconsideration on April 18, 2001,[14] citing COMELEC Resolution No. 3300dated 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 ElectionCode 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 thechanges 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 theCOMELEC en banc in a Memorandum dated April 23, 2001.[15] Petitioner also filedan administrative and criminal complaint[16]with the Law Department[17] againstBenipayo, alleging that her reassignment violated Section 261 (h) of theOmnibus Election Code, COMELEC Resolution No. 3258, Civil ServiceMemorandum Circular No. 07, s. 001, and other pertinent administrative andcivil service laws, rules and regulations.

During the pendency of her complaint before the Law Department,petitioner filed the instant petition questioning the appointment and theright to remain in office of Benipayo, Borra and Tuason, as Chairman andCommissioners of the COMELEC, respectively.   Petitioner claims that the adinterim appointments of   Benipayo, Borra and Tuason violate theconstitutional provisions on the independence of the COMELEC, as well as onthe prohibitions on temporary appointments and reappointments of itsChairman and members.  Petitioner also assails as illegal her removal asDirector IV of the EID and her reassignment to the LawDepartment.    Simultaneously, petitioner challenges the designation ofCinco as Officer-in-Charge of the EID.   Petitioner, moreover, questionsthe legality of the disbursements made by COMELEC Finance ServicesDepartment Officer-in-Charge Gideon C. De Guzman to Benipayo, Borra andTuason by way of salaries and other emoluments.

In the meantime, on September 6, 2001, President Macapagal Arroyorenewed once again the ad interim appointments of Benipayo as COMELECChairman and Borra and Tuason as Commissioners, respectively, for a term ofseven years expiring on February 2, 2008.[18] They all took their oaths ofoffice 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 inconstitutional cases;

2. Whether or not the assumption of office by Benipayo, Borra and Tuason onthe basis of the ad interim appointments issued by the President amounts toa temporary appointment prohibited by Section 1 (2), Article IX-C of theConstitution;

3. Assuming that the first ad interim appointments and the first assumptionof office by Benipayo, Borra and Tuason are legal, whether or not therenewal of their ad interim appointments  and subsequent assumption ofoffice to the same positions violate the prohibition on reappointmentunder Section 1 (2), Article IX-C of the Constitution; 

4. Whether or not Benipayo’s removal of petitioner from her position asDirector IV of the EID and her reassignment to the Law Department isillegal and without authority, having been done without the approval ofthe COMELEC as a collegial body;

5. Whether or not the Officer-in-Charge of the COMELEC’s Finance ServicesDepartment, 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 fourrequisites before this Court may exercise its power of judicial review inconstitutional cases.    Out of respect for the acts of the Executivedepartment, which is co-equal with this Court, respondents urge this Courtto refrain from reviewing the constitutionality of the adinterim appointments issued by the President to Benipayo, Borra and Tuasonunless all the four requisites are present.  These are: (1) the existenceof an actual and appropriate controversy; (2) a personal and substantialinterest of the party raising the constitutional issue; (3) the exercise ofthe judicial review is pleaded at the earliest opportunity; and (4) theconstitutional issue is the lis mota of the case.[19]

Respondents argue that the second, third and fourth requisites areabsent in this case.  Respondents maintain that petitioner does not have apersonal and substantial interest in the case because she has not sustaineda direct injury as a result of the ad interim appointments of Benipayo, Borraand Tuason and their assumption of office.  Respondents point out thatpetitioner does not claim to be lawfully entitled to any of the positionsassumed by Benipayo, Borra or Tuason.  Neither does petitioner claim to bedirectly injured by the appointments of these three respondents.

Respondents also contend that petitioner failed to question theconstitutionality of the ad interim appointments at the earliestopportunity.  Petitioner filed the petition only on August 3, 2001 despitethe fact that the ad interim appointments of Benipayo, Borra and Tuason wereissued as early as March 22, 2001.  Moreover, the petition was filed afterthe third time that these three respondents were issuedadinterim appointments.

Respondents insist that the real issue in this case is the legality ofpetitioner’s reassignment from the EID to the LawDepartment.  Consequently, the constitutionality of the adinterim 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’sauthority as Chairman of the Commission on Elections, and as the Commission’s ChiefExecutive Officer.”[21] Evidently, respondents anchor the legality ofpetitioner’s reassignment on Benipayo’s authority as Chairman of theCOMELEC.   The real issue then turns on whether or not Benipayo is thelawful Chairman of the COMELEC.  Even if petitioner is only an ActingDirector of the EID, her reassignment is without legal basis if Benipayo isnot the lawful COMELEC Chairman, an office created by the Constitution.

On the other hand, if Benipayo is the lawful COMELEC Chairman because heassumed office in accordance with the Constitution, then petitioner’sreassignment is legal and she has no cause to complain provided thereassignment is in accordance with the Civil Service Law.  Clearly,petitioner has a personal and material stake in the resolution of theconstitutionality of Benipayo’s assumption of office. Petitioner’s personaland substantial injury, if Benipayo is not the lawful COMELEC Chairman,clothes her with the requisite locus standi to raise the constitutional issuein this petition.

Respondents harp on petitioner’s belated act of questioning theconstitutionality of the ad interim appointments of Benipayo, Borra andTuason.  Petitioner filed the instant petition only on August 3, 2001, whenthe first ad interim appointments were issued as early as March 22, 2001.However, it is not the date of filing of the petition that determineswhether the constitutional issue was raised at the earliest opportunity.The earliest opportunity to raise a constitutional issue is to raise it inthe pleadings before a competent court that can resolve the same, suchthat, “if it is not raised in the pleadings, it cannot be considered at thetrial, and, if not considered at the trial, it cannot be considered onappeal.”[22] Petitioner questioned the constitutionality of the adinterim appointments of Benipayo, Borra and Tuason when she filed herpetition before this Court, which is the earliest opportunity for pleadingthe constitutional issue before a competent body.  Furthermore, this Courtmay determine, in the exercise of sound discretion, the time when aconstitutional issue may be passed upon.[23] There is no doubt petitionerraised the constitutional issue on time.

Moreover, the legality of petitioner’s reassignment hinges on theconstitutionality of Benipayo’s ad interim appointment and assumption ofoffice.  Unless the constitutionality of Benipayo’s ad interimappointment andassumption of office is resolved, the legality of petitioner’s reassignmentfrom the EID to the Law Department cannot be determined.  Clearly, the lismota of this case is the very constitutional issue raised by petitioner.

In any event, the issue raised by petitioner is of paramount importanceto the public.  The legality of the directives and decisions made by theCOMELEC in the conduct of the May 14, 2001 national elections may be put indoubt if the constitutional issue raised by petitioner is leftunresolved.  In keeping with this Court’s duty to determine whether otheragencies of government have remained within the limits of the Constitutionand have not abused the discretion given them, this Court may even brushaside technicalities of procedure and resolve any constitutional issueraised.[24] Here the petitioner has complied with all the requisitetechnicalities. Moreover, public interest requires the resolution of theconstitutional issue raised by petitioner.

Second Issue:  The Nature of an Ad Interim Appointment

Petitioner argues that an ad interim appointment to the COMELEC is atemporary appointment that is prohibited by Section 1 (2), Article IX-C ofthe 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 aterm 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 orrevoked by the President at her pleasure, and can even be disapproved orsimply by-passed by the Commission on Appointments.  For this reason,petitioner claims that an ad interim appointment is temporary in characterand consequently prohibited by the last sentence of Section 1 (2), ArticleIX-C of the Constitution.

Based on petitioner’s theory, there can be no ad interim appointment tothe COMELEC or to the other two constitutional commissions, namely theCivil Service Commission and the Commission on Audit.  The last sentence ofSection 1 (2), Article IX-C of the Constitution is also found in ArticleIX-B and Article IX-D providing for the creation of the Civil ServiceCommission and the Commission on Audit, respectively.   Petitionerinterprets the last sentence of Section 1 (2) of Article IX-C to mean thatthe ad interim appointee cannot assume office until his appointment isconfirmed by the Commission on Appointments for only then does hisappointment become permanent and no longer temporary in character.

The rationale behind petitioner’s theory is that only an appointee whois confirmed by the Commission on Appointments can guarantee theindependence of the COMELEC. A confirmed appointee is beyond the influenceof the President or members of the Commission on Appointments since hisappointment can no longer be recalled or disapproved. Prior to hisconfirmation, the appointee is at the mercy of both the appointing andconfirming powers since his appointment can be terminated at any time forany cause.  In the words of petitioner, a Sword of Damocles hangs over thehead of every appointee whose confirmation is pending with the Commissionon 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 theappointee has qualified into office. The fact that it is subject toconfirmation by the Commission on Appointments does not alter its permanentcharacter.  The Constitution itself makes an ad interim appointment permanentin character by making it effective until disapproved by the Commission onAppointments or until the next adjournment of Congress.  The secondparagraph of Section 16, Article VII of the Constitution provides asfollows:

“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 nextadjournment, signifying that it can no longer be withdrawn or revoked bythe President.  The fear that the President can withdraw or revoke at anytime 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 adinterim appointment is permanent in character.  In Summers vs. Ozaeta,[25] decidedon 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 alterits 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 anotherpermanent appointment is issued.”  (Emphasis supplied)

The Constitution imposes no condition on the effectivity of an adinterim appointment, and thus an ad interim appointment takes effectimmediately.   The appointee can at once assume office and exercise, asa 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 ofan 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 “adinterim” to mean “in the meantime” or “for the time being.”   Hence,petitioner argues that an ad interim appointment is undoubtedly temporary incharacter. This argument is not new and was answered by this Courtin Pamantasan ng Lungsod ng Maynila vs. Intermediate Appellate Court,[27] where weexplained 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.  Theterm is defined by Black to mean “in the meantime” or “for the time being”.  Thus, an officer ad interim is one appointed to fill avacancy, 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 appointmentsigned by the President, means a permanent appointment made by thePresident in the meantime that Congress is in recess.  It does not mean a temporaryappointment that can be withdrawn or revoked at any time.    The term,although not found in the text of the Constitution, has acquired a definitelegal meaning under Philippine jurisprudence.  The Court had again occasionto explain the nature of an ad interim appointment in the more recent caseof 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 actingcapacity, 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 atthat moment a government employee and therefore part of the civilservice.  He enjoys the constitutional protection that ”[n]o officer oremployee in the civil service shall be removed or suspended except forcause provided by law.”[29] Thus, an adinterim appointment  becomes  complete  and irrevocable once the appointeehas qualified into office.  The withdrawal or revocation of an adinterim appointment is possible only if it is communicated to the appointeebefore the moment he qualifies, and any withdrawal or revocation thereafteris 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 statutebut also by the Constitution.  He can only be removed for cause, afternotice and hearing, consistent with the requirements of due process.

An ad interim appointment can be terminated for two causes specified inthe Constitution. The first cause is the disapproval of his adinterim appointment by the Commission on Appointments.  The second cause isthe adjournment of Congress without the Commission on Appointments actingon his appointment. These two causes are resolutory conditions expresslyimposed by the Constitution on all ad interim appointments.  These resolutoryconditions constitute, in effect, a Sword of Damocles over the heads of adinterim appointees.  No one, however, can complain because it is theConstitution itself that places the Sword of Damocles over the heads ofthe ad interim appointees.

While an ad interim appointment is permanent and irrevocable except asprovided by law, an appointment or designation in a temporary or actingcapacity can be withdrawn or revoked at the pleasure of the appointingpower.[31] A temporary or acting appointee does not enjoy any security oftenure, no matter how briefly.  This is the kind of appointment that theConstitution prohibits the President from making to the three independentconstitutional commissions, including the COMELEC.  Thus, in Brillantes vs.Yorac,[32] this Court struck downas  unconstitutional  the  designation  by  then  President Corazon Aquinoof Associate Commissioner Haydee Yorac as Acting Chairperson of theCOMELEC.  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 ifthe respondent, having accepted such designation, will not beestopped from challenging its withdrawal.

x x x

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 thePresident of the Philippines.”

Earlier, in Nacionalista Party vs. Bautista,[33] a case decided under the 1935Constitution, which did not have a provision prohibiting temporary oracting appointments to the COMELEC, this Court nevertheless declaredunconstitutional the designation of the Solicitor General as acting memberof the COMELEC.  This Court ruled that the designation of an actingCommissioner would undermine the independence of the COMELEC and henceviolate the Constitution.  We declared then: “It would be more in keepingwith the intent, purpose and aim of the framers of the Constitution toappoint apermanent Commissioner than to designate one to act temporarily.”(Emphasis supplied)

In the instant case, the President did in fact appoint permanentCommissioners to fill the vacancies in the COMELEC, subject only toconfirmation by the Commission on Appointments.  Benipayo, Borra and Tuasonwere extended permanent appointments during the recess of Congress.  Theywere not appointed or designated in a temporary or acting capacity, unlikeCommissioner Haydee Yorac inBrillantes vs. Yorac[34] and Solicitor General FelixBautista in Nacionalista Party vs. Bautista.[35] The ad interim appointments ofBenipayo, Borra and Tuason are expressly allowed by the Constitution whichauthorizes the President, during the recess of Congress, to makeappointments that take effect immediately.

While the Constitution mandates that the COMELEC “shall beindependent”[36], this provision should be harmonized with the President’spower to extend ad interim appointments. To hold that the independence of theCOMELEC requires the Commission on Appointments to first confirm adinterim appointees before the appointees can assume office will negate thePresident’s power to make ad interim appointments.  This is contrary to therule on statutory construction to give meaning and effect to everyprovision of the law.  It will also run counter to the clear intent of theframers of the Constitution.

The original draft of Section 16, Article VII of the Constitution - onthe nomination of officers subject to confirmation by the Commission onAppointments - did not provide for ad interim appointments.  The originalintention of the framers of the Constitution was to do away with adinterim appointments because the plan was for Congress to remain in sessionthroughout 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 provisionsof the 1935 Constitution onad interim appointments.   The followingdiscussion during the deliberations of the Constitutional Commissionelucidates 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.

x x x

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.

x x x

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 VOLUNTARYOR 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.

x x x

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 adinterim appointing power of the President was for the purpose of avoidinginterruptions in vital government services that otherwise would result fromprolonged vacancies in government offices, including the threeconstitutional commissions.  In his concurring opinion in Guevara vs.Inocentes,[38] decided under the 1935 Constitution, Justice RobertoConcepcion, Jr. explained the rationale behind ad interim appointments inthis 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 ofessential government services in the May 2001 national elections. Followingthe decision of this Court in Gaminde vs. Commission on Appointments,[39] promulgated on December 13, 2000, the terms of office of constitutionalofficers first appointed under the Constitution would have to be countedstarting February 2, 1987, the date of ratification of the Constitution,regardless of the date of their actual appointment.  By this reckoning, theterms of office of three Commissioners of the COMELEC, including theChairman, would end on February 2, 2001.[40]

Then COMELEC Chairperson Harriet O. Demetriou was appointed only onJanuary 11, 2000 to serve, pursuant to her appointment papers, untilFebruary 15, 2002,[41] the original expiry date of the term of herpredecessor, Justice Bernardo P. Pardo, who was elevated to thisCourt.   The original expiry date of the term of Commissioner Teresita Dy-Liacco Flores was also February 15, 2002, while that of Commissioner JulioF. Desamito was November 3, 2001.[42] The original expiry dates of the termsof office of Chairperson Demetriou and Commissioners Flores and Desamitowere therefore supposed to fall after the May 2001 elections.  Suddenly andunexpectedly, because of the Gaminde ruling, there were three vacancies inthe seven-person COMELEC, with national elections looming less than three

and one-half months away. To their credit, Chairperson Demetriou andCommissioner Flores vacated their offices on February 2, 2001 and did notquestion any more before this Court the applicability of theGaminde rulingto their own situation.

In a Manifestation[43] dated December 28, 2000 filed with this Court inthe Gaminde case, Chairperson Demetriou stated that she was vacating heroffice on February 2, 2001, as she believed any delay in choosing hersuccessor might create a “constitutional crisis” in view of the proximityof the May 2001 national elections.   Commissioner Desamito chose to file apetition for intervention[44] in the Gamindecase but this Court denied theintervention. Thus, Commissioner Desamito also vacated his office onFebruary 2, 2001.

During an election year, Congress normally goes on voluntary recessbetween February and June considering that many of the members of the Houseof Representatives and the Senate run for re-election.   In 2001, theEleventh Congress adjourned from January 9, 2001 to June 3, 2001.[45] Concededly, there was no more time for Benipayo, Borra and Tuason, whowere originally extended ad interim appointments only on March 22, 2001, tobe confirmed by the Commission on Appointments before the May 14, 2001elections.

If Benipayo, Borra and Tuason were not extended ad interim appointments tofill up the three vacancies in the COMELEC, there would only have been onedivision functioning in the COMELEC instead of two during the May 2001elections. Considering that the Constitution requires that “all x x xelection cases shall be heard and decided in division”,[46] the remaining onedivision would have been swamped with election cases.  Moreover, sinceunder the Constitution motions for reconsideration “shall be decided by theCommission en banc”, the mere absence of one of the four remaining memberswould have prevented a quorum, a less than ideal situation considering thatthe Commissioners are expected to travel around the country before, duringand after the elections.   There was a great probability that disruptionsin the conduct of the May 2001 elections could occur because of the threevacancies in the COMELEC. The successful conduct of the May 2001 nationalelections, right after the tumultuous EDSA II and EDSA III events, wascertainly essential in safeguarding and strengthening our democracy.

Evidently, the exercise by the President in the instant case of herconstitutional power to make ad interim appointments prevented the occurrenceof the very evil sought to be avoided by the second paragraph of Section16, Article VII of the Constitution.  This power to make adinterim appointments is lodged in the President to be exercised by her inher sound judgment.  Under the second paragraph of Section 16, Article VIIof the Constitution, the President can choose either of two modes inappointing officials who are subject to confirmation by the Commission onAppointments.  First, while Congress is in session, the President maynominate the prospective appointee, and pending consent of the Commissionon Appointments, the nominee cannot qualify and assume office.  Second,during the recess of Congress, the President may extend an adinterim appointment which allows the appointee to immediately qualify andassume office.

Whether the President chooses to nominate the prospective appointee orextend an ad interim appointment is a matter within the prerogative of thePresident because the Constitution grants her that power. This Court cannotinquire into the propriety of the choice made by the President in theexercise of her constitutional power, absent grave abuse of discretion

amounting to lack or excess of jurisdiction on her part, which has not beenshown in the instant case.

The issuance by Presidents of ad interim appointments to the COMELEC is along-standing practice.  Former President Corazon Aquino issuedan ad interim appointment to Commissioner Alfredo E. Abueg.[47] FormerPresident Fidel V. Ramos extended ad interim appointments to CommissionersJulio F. Desamito, Japal M. Guiani, Graduacion A. Reyes-Claravall andManolo F. Gorospe.[48] Former President Joseph Estrada also extended adinterim appointments to Commissioners Abdul Gani M. Marohombsar, LuzvimindaTancangco, Mehol K. Sadain and Ralph C. Lantion.[49]

The President’s power to extend ad interim appointments may indeed brieflyput the appointee at the mercy of both the appointing and confirmingpowers.   This situation, however, is only for a short period - from thetime of issuance of the ad interim appointment until the Commission onAppointments gives or withholds its consent.   The Constitution itselfsanctions this situation, as a trade-off against the evil of disruptions invital government services.  This is also part of the check-and-balanceunder the separation of powers, as a trade-off against the evil of grantingthe President absolute and sole power to appoint.   The Constitution haswisely subjected the President’s appointing power to the checking power ofthe legislature.

This situation, however, does not compromise the independence of theCOMELEC as a constitutional body. The vacancies in the COMELEC areprecisely staggered to insure that the majority of its members holdconfirmed appointments, and not one President will appoint all the COMELECmembers.[50] In the instant case, the Commission on Appointments had longconfirmed four[51] of the incumbent COMELEC members, comprising a majority,who could now be removed from office only by impeachment.  The specialconstitutional safeguards that insure the independence of the COMELECremain in place.[52] The COMELEC enjoys fiscal autonomy, appoints its ownofficials and employees, and promulgates its own rules on pleadings andpractice.  Moreover, the salaries of COMELEC members cannot be decreasedduring their tenure.

In fine, we rule that the ad interim appointments extended by thePresident to Benipayo, Borra and Tuason, as COMELEC Chairman andCommissioners, respectively, do not constitute temporary or actingappointments prohibited by Section 1 (2), Article IX-C of the Constitution.

Third Issue:  The Constitutionality of Renewals of Appointments

Petitioner also agues that assuming the first ad interim appointments andthe first assumption of office by Benipayo, Borra and Tuason areconstitutional, the renewal of the their ad interim appointments and theirsubsequent assumption of office to the same positions violate theprohibition on reappointment under Section 1 (2), Article IX-C of theConstitution, which provides as follows:

“The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for aterm 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 theCommission on Appointments, his ad interim appointment can no longer berenewed because this will violate Section 1 (2), Article IX-C of theConstitution which prohibits reappointments.  Petitioner asserts that thisis particularly true to permanent appointees who have assumed office, whichis the situation of Benipayo, Borra and Tuason if their adinterim appointments are deemed permanent in character.

There is no dispute that an ad interim appointee disapproved by theCommission on Appointments can no longer be extended a newappointment.  The disapproval is a final decision of the Commission onAppointments in the exercise of its checking power on the appointingauthority of the President. The disapproval is a decision on the merits,being a refusal by the Commission on Appointments to give its consent afterdeliberating on the qualifications of the appointee. Since the Constitutiondoes not provide for any appeal from such decision, the disapproval isfinal and binding on the appointee as well as on the appointing power.  Inthis instance, the President can no longer renew the appointment notbecause of the constitutional prohibition on reappointment, but because ofa final decision by the Commission on Appointments to withhold its consentto the appointment.

An ad interim appointment that is by-passed because of lack of time orfailure of the Commission on Appointments to organize is another matter.  Aby-passed appointment is one that has not been finally acted upon on themerits by the Commission on Appointments at the close of the session ofCongress.  There is no final decision by the Commission on Appointments togive or withhold its consent to the appointment as required by theConstitution. Absent such decision, the President is free to renew the adinterim appointment of a by-passed appointee. This is recognized in Section17 of the Rules of the Commission on Appointments, which provides asfollows:

“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-passedappointment can be considered again if the President renews theappointment.

It is well settled in this jurisdiction that the President can renewthe ad interim appointments of by-passed appointees.   Justice RobertoConcepcion, Jr. lucidly explained in his concurring opinion inGuevara vs.Inocentes[53] why by-passed ad interim appointees could be extended newappointments, 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 secondparagraph of Section 16, Article VII of the present Constitution on adinterim appointments was lifted verbatim.[54] The jurisprudence under the 1935Constitution governing ad interim appointments by the President is doubtlessapplicable to the present Constitution. The established practice under thepresent Constitution is that the President can renew the appointments ofby-passed ad interim appointees.  This is a continuation of the well-recognized practice under the 1935 Constitution, interrupted only by the1973 Constitution which did not provide for a Commission on Appointmentsbut vested sole appointing power in the President.

The prohibition on reappointment in Section 1 (2), Article IX-C of theConstitution applies neither to disapproved nor by-passed adinterim appointments.   A disapproved ad interim appointment cannot be revivedby another ad interim appointment because the disapproval is final underSection 16, Article VII of the Constitution, and not because areappointment is prohibited under Section 1 (2), Article IX-C of theConstitution.    A by-passed ad interim appointment can be revived by anew ad interim appointment because there is no final disapproval underSection 16, Article VII of the Constitution, and such new appointment willnot result in the appointee serving beyond the fixed term of seven years.

Section 1 (2), Article IX-C of the Constitution provides that “[t]heChairman and the Commissioners shall be appointed x x x for a term of sevenyears without reappointment.” (Emphasis supplied) There are four situationswhere this provision will apply.   The first situation is where an adinterim appointee to the COMELEC, after confirmation by the Commission onAppointments, serves his full seven-year term.  Such person cannot bereappointed to the COMELEC, whether as a member or as a chairman, becausehe will then be actually serving more than seven years.   The secondsituation is where the appointee, after confirmation, serves a part of histerm and then resigns before his seven-year term of office ends.  Suchperson cannot be reappointed, whether as a member or as a chair, to avacancy arising from retirement because a reappointment will result in theappointee also serving more than seven years.   The third situation iswhere the appointee is confirmed to serve the unexpired term of someone whodied or resigned, and the appointee completes the unexpired term.  Suchperson cannot be reappointed, whether as a member or chair, to a vacancyarising from retirement because a reappointment will result in theappointee also serving more than seven years.

The fourth situation is where the appointee has previously served a termof less than seven years, and a vacancy arises from death orresignation.  Even if it will not result in his serving more than sevenyears, a reappointment of such person to serve an unexpired term is also

prohibited because his situation will be similar to those appointed underthe second sentence of Section 1 (2), Article IX-C of the Constitution.This provision refers to the first appointees under the Constitution whoseterms of office are less than seven years, but are barred from ever beingreappointed under any situation.  Not one of these four situations applies to the caseof Benipayo, Borra or Tuason.

The framers of the Constitution made it quite clear that any person whohas served any term of office as COMELEC member – whether for a full termof seven  years,  a  truncated  term  of  five  or three years, or even foran unexpired term of any length of time – can no longer be reappointed tothe COMELEC.  Commissioner Foz succinctly explained this intent in thismanner:

“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 Vera[57] that a “[r]eappointment is not prohibited whena Commissioner has held office only for, say, three or six years, providedhis term will not exceed nine years in all.”  This was the interpretationdespite the express provision in the 1935 Constitution that a COMELECmember “shall hold office for a term of nine years and may not bereappointed.”

To foreclose this interpretation, the phrase “without reappointment”appears twice in Section 1 (2), Article IX-C of the presentConstitution.  The first phrase prohibits reappointment of any personpreviously appointed for a term of seven years.  The second phraseprohibits reappointment of any person previously appointed for a term offive or three years pursuant to the first set of appointees under theConstitution.  In either case, it does not matter if the person previouslyappointed completes his term of office for the intention is to prohibit anyreappointment of any kind.

However, an ad interim appointment that has lapsed by inaction of theCommission on Appointments does not constitute a term of office. The periodfrom the time the ad interim appointment is made to the time it lapses isneither a fixed term nor an unexpired term. To hold otherwise would meanthat the President by his unilateral action could start and complete therunning of a term of office in the COMELEC without the consent of theCommission on Appointments.  This interpretation renders inutile theconfirming power of the Commission on Appointments.

The phrase “without reappointment” applies only to one who has beenappointed 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 appointmentbefore the prohibition on reappointment can apply.   To hold otherwise willlead to absurdities and negate the President’s power to make adinterim appointments.

In the great majority of cases, the Commission on Appointments usuallyfails to act, for lack of time, on the ad interim appointments first issuedto appointees.   If such ad interim appointments can no longer be renewed,the President will certainly hesitate to make ad interim appointments becausemost of her appointees will effectively be disapproved by mere inaction ofthe Commission on Appointments. This will nullify the constitutional powerof the President to make ad interim appointments, a power intended to avoiddisruptions in vital government services.  This Court cannot subscribe to aproposition that will wreak havoc on vital government services.

The prohibition on reappointment is common to the three constitutionalcommissions.  The framers of the present Constitution prohibitedreappointments for two reasons. The first is to prevent a secondappointment for those who have been previously appointed and confirmed evenif they served for less than seven years.  The second is to insure that themembers of the three constitutional commissions do not serve beyond thefixed term of seven years.  As reported in the Journal of the ConstitutionalCommission, Commissioner Vicente B. Foz, who sponsored[58]the proposedarticles on the three constitutional commissions, outlined the fourimportant 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 autonomywhich 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 toappoint all the members during his incumbency; 3) prohibitionto decrease salaries of the members of the Commissions duringtheir term of office; and 4) appointments of members would not require confirmation.”[59] (Emphasis supplied)

There were two important amendments subsequently made by theConstitutional Commission to these four features. First, as discussedearlier, the framers of the Constitution decided to require confirmation bythe Commission on Appointments of all appointments to the constitutionalcommissions.  Second, the framers decided to strengthen further theprohibition on serving beyond the fixed seven-year term, in the light of aformer chair of the Commission on Audit remaining in office for 12 yearsdespite his fixed term of seven years.  The following exchange in thedeliberations 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 inan acting capacity as Chairman of the Commission on Audit forabout 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, heoccupied that position for about 12 years in violation of theConstitution?

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 onreappointment 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 therewill be no reappointment of any kind.  On the other hand, the prohibitionon temporary or acting appointments is intended to prevent anycircumvention of the prohibition on reappointment that may result in anappointee’s total term of office exceeding seven years. The evils sought tobe avoided by the twin prohibitions are very specific - reappointment ofany kind and exceeding one’s term in office beyond the maximum period ofseven years.

Not contented with these ironclad twin prohibitions, the framers of theConstitution tightened even further the screws on those who might wish toextend their terms of office.  Thus, the word “designated” was inserted toplug 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 ofBenipayo, Borra and Tuason do not violate the prohibition on reappointmentsbecause there were no previous appointments that were confirmed by theCommission on Appointments.  A reappointment presupposes a previousconfirmed appointment.  The same ad interim appointments and renewals ofappointments will also not breach the seven-year term limit because all theappointments and renewals of appointments of Benipayo, Borra and Tuason are for a fixedterm expiring on February 2, 2008.[63] Any delay in their confirmation will notextend the expiry date of their terms of office. Consequently, there is nodanger whatsoever that the renewal of the ad interim appointments of thesethree respondents will result in any of the evils intended to be exorcisedby the twin prohibitions in the Constitution. The continuing renewal ofthe ad interim appointment of these three respondents, for so long as theirterms of office expire on February 2, 2008, does not violate theprohibition on reappointments in Section 1 (2), Article IX-C of theConstitution.

Fourth Issue:  Respondent Benipayo’s Authority to Reassign Petitioner

Petitioner claims that Benipayo has no authority to remove her asDirector IV of the EID and reassign her to the Law Department.  Petitionerfurther argues that only the COMELEC, acting as a collegial body, canauthorize such reassignment.  Moreover, petitioner maintains that areassignment without her consent amounts to removal from office without dueprocess and therefore illegal.

Petitioner’s posturing will hold water if Benipayo does not possess anycolor of title to the office of Chairman of the COMELEC.  We have ruled,however, that Benipayo is the de jure COMELEC Chairman, and consequently hehas full authority to exercise all the powers of that office for so long ashis ad interim  appointment  remains effective.   Under Section 7 (4),Chapter 2, Subtitle C, Book V of the Revised Administrative Code, theChairman 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:

x x x

(4) Make temporary assignments, rotate and transfer personnel in accordancewith the provisions of the Civil Service Law.”  (Emphasis supplied)

The Chairman, as the Chief Executive of the COMELEC, is expressly empoweredon his own authority to transfer or reassign COMELEC personnel inaccordance with the Civil Service Law.  In the exercise of this power, theChairman is not required by law to secure the approval of the COMELEC enbanc.

Petitioner’s appointment papers dated February 2, 1999, February 15,2000 and February 15, 2001, attached as Annexes “X“, “Y” and “Z” to herPetition, indisputably show that she held her Director IV position in theEID only in an acting or temporary capacity.[64] Petitioner is not a CareerExecutive Service (CES) officer, and neither does she hold Career ExecutiveService Eligibility, which are necessary qualifications for holding theposition 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 ofJustice Serafin Cuevas vs. Atty. Josefina G. Bacal,[66] this Court held that:

“As respondent does not have the rank appropriate for the positionof 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 ‘toa 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, itcould 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 himcannot 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 notpossessed of the necessary qualifications to hold the position of DirectorIV, petitioner has no legal basis in claiming that her reassignment wascontrary to the Civil Service Law.  This time, the vigorous argument ofpetitioner that a temporary or acting appointment can be withdrawn orrevoked at the pleasure of the appointing power happens to apply squarelyto her situation.

Still, petitioner assails her reassignment, carried out during theelection period, as a prohibited act under Section 261 (h) of the OmnibusElection Code, which provides as follows:

“Section 261.  Prohibited Acts.   The following shall be guilty of an election offense:

x x x

(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 electionperiod except upon prior approval of the Commission.”

Petitioner claims that Benipayo failed to secure the approval of theCOMELEC en banc to effect transfers or reassignments of COMELEC personnelduring the election period.[67] Moreover, petitioner insists that theCOMELEC en banc must concur to every transfer or reassignment of COMELECpersonnel during the election period. 

Contrary to petitioner’s allegation, the COMELEC did in fact issueCOMELEC Resolution No. 3300 dated November 6, 2000,[68] exempting the COMELECfrom Section 261 (h) of the Omnibus Election Code.  The resolution statesin part:

“WHEREAS, Sec. 56 and Sec. 261, paragraphs (g) and (h), of the Omnibus Election Code provides as follows: 

x x x

Sec. 261. Prohibited Acts.  The following shall be guilty of an election offense:

x x x

(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, withinthe election period except upon approval of the Commission.

WHEREAS, the aforequoted provisions are applicable to the nationaland 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 ElectionCode 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 beforeelection day shall be effected after due notice and hearing.”  (Emphasis supplied)

The proviso in COMELEC Resolution No. 3300, requiring due notice andhearing before any transfer or reassignment can be made within thirty daysprior to election day, refers only to COMELEC fieldpersonnel and not to headoffice personnel like the petitioner. Under the Revised AdministrativeCode,[69] the COMELEC Chairman is the sole officer specifically vested with thepower to transfer or reassign COMELEC personnel.  The COMELEC Chairman willlogically exercise the authority to transfer or reassign COMELEC personnelpursuant to COMELEC Resolution No. 3300.  The COMELEC en banccannot arrogateunto itself this power because that will mean amending the RevisedAdministrative Code, an act the COMELEC en banc cannot legally do. 

COMELEC Resolution No. 3300 does not require that every transfer orreassignment of COMELEC personnel should carry the concurrence of theCOMELEC as a collegial body.   Interpreting Resolution No. 3300 to requiresuch concurrence will render the resolution meaningless since theCOMELEC en banc will have to approve every personnel transfer orreassignment, making the resolution utterly useless.  Resolution No. 3300should be interpreted for what it is, an approval to effect transfers andreassignments of personnel, without need of securing a second approval fromthe COMELEC en banc to actually implement such transfer or reassignment.

The COMELEC Chairman is the official expressly authorized by law totransfer or reassign COMELEC personnel.  The person holding that office, ina de jure capacity, is Benipayo.  The COMELECen banc, in COMELEC ResolutionNo. 3300, approved the transfer or reassignment of COMELEC personnel duringthe election period.  Thus, Benipayo’s order reassigning petitioner fromthe EID to the Law Department does not violate Section 261 (h) of theOmnibus Election Code.  For the same reason, Benipayo’s order designatingCinco 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 onElections, did not act in excess of jurisdiction in paying the salaries andother emoluments of Benipayo, Borra, Tuason and Cinco.

WHEREFORE, the petition is dismissed for lack of merit.  Costs againstpetitioner.

SO ORDERED.

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.G.R. No. 149036April 2, 2002EN BANC

FACTS:On February 2, 1999, the COMELEC en banc appointed petitioner as

"Acting Director IV" of the EID. On February 15, 2000, then ChairpersonHarriet O. Demetriou renewed the appointment of petitioner as Director IVof EID in a "Temporary" capacity. On March 22, 2001, President GloriaMacapagal Arroyo appointed, ad interim, Benipayo as COMELEC Chairman togetherwith other commisioners in an ad interim appointment.

In his capacity as COMELEC Chairman, Benipayo issued a Memorandumdated April 11, 2001 addressed to petitioner as Director IV of the EID andto Cinco as Director III also of the EID, designating Cinco Officer-in-Charge of the EID and reassigning petitioner to the Law Department. COMELECEID Commissioner-in-Charge Mehol K. Sadain objected to petitioner’sreassignment in a Memorandum dated April 14, 2001 addressed to theCOMELEC en banc. Specifically, Commissioner Sadain questioned Benipayo’sfailure to consult the Commissioner-in-Charge of the EID in thereassignment of petitioner.

Petitioner requested Benipayo to reconsider her relief as Director IVof the EID and her reassignment to the Law Department.

Petitioner cited Civil Service Commission Memorandum Circular No. 7dated April 10, 2001, reminding heads of government offices that "transferand detail of employees are prohibited during the election period beginningJanuary 2 until June 13, 2001." Benipayo denied her request forreconsideration on April 18, 2001, citing COMELEC Resolution No. 3300 datedNovember 6, 2000, Exempting the Comelec from the coverage of the said memocircular.

Petitioner appealed the denial of her request for reconsideration tothe COMELEC en bancin a Memorandum dated April 23, 2001. Petitioner alsofiled an administrative and criminal complaint with the Law Departmentagainst Benipayo, alleging that her reassignment violated Section 261 (h)of the Omnibus Election Code, COMELEC Resolution No. 3258, Civil ServiceMemorandum Circular No. 07, s. 001, and other pertinent administrative andcivil service laws, rules and regulations.

During the pendency of her complaint before the Law Department,petitioner filed the instant petition questioning the appointment and theright to remain in office of Benipayo, Borra and Tuason, as Chairman andCommissioners of the COMELEC, respectively. Petitioner claims that the adinterim appointments of Benipayo, Borra and Tuason violate theconstitutional provisions on the independence of the COMELEC.

ISSUES:                               Whether or not the assumption of office by Benipayo, Borraand Tuason on the basis of the ad interim appointments issued by thePresident amounts to a temporary appointmentprohibited by Section 1 (2),Article IX-C of the Constitution.

RULING:

                We find petitioner’s argument without merit. 

An ad interim appointment is a permanent appointment because it takeseffect immediately and can no longer be withdrawn by the President once theappointee has qualified into office. The fact that it is subject toconfirmation by the Commission on Appointments does not alter its permanentcharacter. The Constitution itself makes an ad interim appointmentpermanent in character by making it effective until disapproved by theCommission on Appointments or until the next adjournment of Congress.

Matibag vs Benipayo Case Digest

Here are some digested cases from the Jurisprudence regarding issues related to the Executive Department. I know, I digested it differently but this is how I remember things easily. You still have to read the whole Jurisprudence. You will never understand the things I wrote below, maybe some but perhaps most of the things I jot down are only the important ones and I might even forgot some important key factors, unless you have read the original text. Do not rely too much ion this. These digested cases will just help you remember things out during oral recitations. God bless future lawyers!

Matibag vs Benipayo

GR No. 149036

April 2, 2002

Maria J. Angelina G. Matibag questions the constitutionality of the appointment by President Arroyo of Benipayo (Chairman of the Commission on Elections), and Bora and Tuason (COMELEC Commissioners). She questions the legality of appointment by Benipayo of Velma J. Cinco as Director IV of theComelec’s EID and reassigning her to the Law department.

Issues:

1.    Instant petition satisfies all requirements

2.    Assumption of office by Benipayo, Bora and Tuason; ad interim appointments amounts to a temporary appointment prohibited by Sec 1 (2), Article IX-C of the Constitution

3.    Renewal of ad interim violated the prohibition on reappointment under Sec 1 (2), Article IX-C of the Constitution

4.    Benipayo’s removal of petitioner is illegal

5.    OIC of COMELEC’s Finance Services Department acting in excess jurisdiction

Matibag’s Argument:

1.    Failure to consult for reassignment

2.    Civil Service Commission Memorandum Circular No 7; transferring and detailing employees are prohibited during the election period beginning January 2 until June 13, 2001

3.    Reassignment violated Sec 261 of the Omnibus Election Code, COMELEC Resolution No. 3258

4.    Ad interim appointments of Benipayo, Bora and Tuason violated the constitutional provisions on the independence of the COMELEC

5.    Illegal removal or reassignment

6.    Challenges the designation of Cinco

7.    Questions the disbursement made by COMELEC

8.    No ad interim appointment to the COMELEC or to Civil Service Commissionand COA

9.    Sec 1 (2) of Article IX-C; an ad interim appointee cannot assume officeuntil confirmed by the Commission on Appointments

Benipayo’s Argument:

1.    Comelec Resolution No. 3300

2.    Petitioner does not have personal interest, not directly injured

3.    Failure to question constitutionality of ad interim appointments at theearliest opportunity. She filed only after third time of reappointments

4.    Ad interim is not the lis mota because the real issue is the legality of petitioner’s reassignment.

Rules of Court:

1.    Real issue is whether or not Benipayo is the lawful Chairman of the Comelec

2.    Petitioner has a personal and material stake.

3.    It is not the date of filing of the petition that determines whether the constitutional issue was raised at the earliest point. The earliest opportunity to raise a constitutional issue is to raise it in the pleading.

4.    Questioned the constitutionality of the ad interim appointments which is the earliest opportunity for pleading the constitutional issue before a competent body.

5.    Ad interim appointment is a permanent appointment because it takes effect immediately and can no longer be withdrawn. It is not the nature of appointment but the manner on which appointment was made. It will avoid interruptions that would result to prolonged vacancies. It is limited the evil sought to be avoided.

6.    Termination of Ad interim appointment (Sword of Damocles); (1) disapproval (2) recess

7.    Two modes of appointment: (1) in session (2) in recess

8.    By-passed appointments – (1) lack of time/failure of the Commission on Appointments to organize, (2) subject of reconsideration, (3) can be revived since there is no final disapproval

9.    Four situations in for a term of seven years without replacement: (1) serves his full seven-year term, (2) serves a part of his term and then resigns beforehis seven-year term, (3) served the unexpired term of someone who died or resigned, (4) served a term of less than seven years, and a vacancy arises from death or resignation. Not one of the four situation applies to the case of Benipayo, Borra or Tuason

10. Reappointment cannot be applied; (1) appointed by president, (2) confirmed by Commission on Appointments

11. Without reappointment means: (first phrase) prohibits reappointment of any person previously appointed for a term of seven years (second phrase) prohibits reappointment of any person previously appointed for a term of 5 or 3 years pursuant to the first set of appointees

12. Reasons for prohibition of reappointments: (1) prevent second appointment(2) not serve beyond the fixed term

13. Two important amendments: (1) requiring the consent by Commission of Appointments (2) prohibition on serving beyond the fixed term of 7 years

14. Twin Prohibition (ironclad): (1) prohibition of reappointments (2) prohibition of temporary or acting appointments

15. Third issue not violation because the previous appointments were not confirmed by the Commission on Appointments.

16. Benipayo is the de jure COMELEC Chairman. He is not required by law to secure the approval of the COMELEC en banc.

17. The petitioner is acting only temporary because a permanent appointment can be issued only upon meeting all the requirements.

COMELEC Resolution No. 3300 refers only to COMELEC field personnel not to head office personnel.

Matibag vs. Benipayo, G.R. No. 149036, April 2, 2002

FACTS:

COMELEC en banc appointed petitioner as “Acting Director IV” of the EID. Such appointmentwas renewed in “temporary” capacity twice, first by Chairperson Demetrio and then by

Commissioner Javier. Later, PGMA appointed, ad interim, Benipayo as COMELECChairman, andBorra and Tuason as COMELEC Commissioners, each for a term of 7 yrs. The three took theiroaths of office and assumed their positions.

However, since the Commission on Appointmentsdid not act on said appointments, PGMA renewed the ad interim appointments.

ISSUES:

Whether or not the assumption of office by Benipayo, Borra and Tuason on the basis of thead interim appointments issued by the President amounts to a temporary appointmentprohibited by Sec. 1(2), Art. IX-C

Assuming that the first ad interim appointments and the first assumption ofoffice byBenipayo, Borra and Tuason are legal, whether or not the renewal of their ad interimappointments and subsequent assumption of office to the same positions violate theprohibition on reappointment under Sec. 1(2), Art. IX-C

RULING:

Nature of an Ad Interim AppointmentAn ad interim appointment is a permanent appointment because it takes effect immediatelyand can no longer be withdrawn by the President once the appointee has qualified into office.The fact that is subject to confirmation by the Commission on Appointments does not alter itspermanent character. The Constitution itselfmakes an ad interim appointment permanent incharacter by making it effective until disapproved by the Commission on Appointments or untilthe next adjournment of Congress. The second paragraph of Sec.16, Art.VII of the Constitutionprovides 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 untildisapproval by the Commission on Appointments or until the next adjournment of the

Congress.”

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. xxx

...the term “ad interim appointment”…

means a permanent appointment made by thePresident in the meantime that Congress is in recess. It does not mean a temporaryappointment that can be withdrawn or revoked at any time. The term, although not found inthe text of the Constitution, has acquired a definite legal meaning under Philippine

jurisprudence.Rights of an Ad Interim AppointeeAn ad interim appointee whohas qualified and assumed office becomes at that moment agovernment employee and therefore part of the civil service. He enjoys the constitution

protection that “[n]o officer or employee in the civil service shall be removed or suspendedexcept for cause provided by law.” Thus,

an ad interim appointment becomes complete andirrevocable once the appointee has qualified into office. The withdrawal or revocation of an adinterim appointment is possible only if it is communicated to the appointee before the momenthe qualifies, and any withdrawal or revocation thereafter is tantamount to removal from office.Once an appointee has qualified, he acquires a legal right to the office which is protected notonly by statute but also by the Constitution. He can only be removed forcause, after notice andhearing, consistent with the requirements of due process.How Ad Interim Appointment is TerminatedAn ad interim appointment can be terminated for two causes specified in the Constitution. Thefirst cause is the disapproval of his ad interim appointment by the Commission onAppointments. The second cause is the adjournment of Congress without theCommission onAppointments acting on his appointment. These two causes are resolutory conditions expresslyimposed by the Constitution on all ad interim appointments. These resolutory conditionsconstitute, 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 ofDamoclesover the heads of the ad interim appointees.Ad Interim Appointment vs. Temporary AppointmentWhile an ad interim appointment is permanent and irrevocable except as provided by law, anappointment or designation in a temporary or acting capacity can be withdrawn or revoked atthe pleasure of the appointing power. A temporary or acting appointee does not enjoy anysecurity of tenure, no matter how briefly. This is the kind of appointment that the Constitutionprohibits the President from making to thethree independent constitutional commissions,including the COMELEC xxxWas the renewal of appointment valid?There is no dispute that an ad interim appointee disapproved by the Commission onAppointments can no longer be extended a new appointment. The disapproval is a finaldecision of the Commission on Appointments in the exercise of its checking power on theappointing authority of the President. The disapproval is a decision on the merits, being arefusal by the Commission on Appointments to give its consent after deliberating on thequalifications of the appointee. Since theConstitution does not provide for any appeal fromsuch 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 theconstitutional prohibition on reappointment, but because of a final decision by the Commissionon Appointments to withhold its consent to the appointment.An ad interim appointment that is by-passed because of lack of time or failure of theCommission on Appointments to organize is another matter. A by-passed appointment is onethat has not been finally acted upon on the merits by the Commission on Appointments at theclose of the session of Congress. There is no final

decision by the Commission on Appointmentsto give or withhold its consent to the appointment as required by the Constitution. Absent suchdecision, the President is free to renew the ad interim appointment of a by-passed appointeexxxThe prohibition on reappointment in Section 1 (2), Article IX-Cof the Constitution appliesneither to disapproved nor by-passed ad interim appointments. A disapproved ad interimappointment cannot be revived by another ad interim appointment because the disapproval isfinal under Section 16, Article VII of the Constitution, and not because a reappointment isprohibited under Section 1 (2), Article IX-C of the Constitution. A by-passed ad interimappointment can be revived by a new ad interim appointment because there is no finaldisapproval under Section 16, Article VII of the Constitution, and such new appointment will notresult inthe appointee serving beyond the fixed term of seven years.

CIVL SERVICE COMMISSION V. DE LA CRUZ FACTS:Saturnino dela Cruz is an employee of DOTC, Air TransportationOffice, he was a Check Pilot II. He was promoted to the position: Chief Aviation Safety Regulation Officer of the Aviation Safety Division.His promotion wasassailed by Calamba, saying he did not meet the 4 yrmanagerial & supervisory qualification for the position.CSC-NCR upheld the protest and recalled the approval of the appointment of Dela Cruz.Upon appeal of the ATO Director Gilo, CSC reversed itself and approved theappointment. (decision of the CSC kept changing)CA approved the appointment. He has the required qualifications “planning,organizing, directing, coordinating and supervising the enforcement of airsafety laws, rules and regulations pertaining to licensing, rating and checkingof all airmen and mechanics andregulation of the activities of flying schools. HELD: The requirement is 4 yrs of work in managerial position AND/ORsupervisory position.“or” – either the 1st clause or 2nd clause may be applied.Dela Cruzhad excellent credentials and a “proven excellent performance.”Every particular job has:3.formal – age, number of academic units in a certain course, seminarsattended, etc. and4.informal qualifications – resourcefulness, team spirit, courtesy,initiative, loyalty, ambition, prospects for the future and best interestof the service.Even if the law stated “&”,the Court held that he has “substantially complied”3 yrs & 8mos     CIVIL SERVICE COMMISSION V. ENGR. DARANGINA 

FACTS:Engineer Darangina was a development management officer V in theOffice of Muslim Affairs (OMA). He was extended a temporary promotionalappointment as Director III, Plans and Policy Services. CSC approved thetemporary appointment.New OMA Executive Director terminated the appointment, ground: Not CareerExecutive Service Eligible.CSC diaprroved the appointment of the replacement who was also noteligible, and granted that the Darangina should be paid backwages until theexpiration of his 1 yr temporary appointment.CA reinstated Darangina. ISSUE/S:Whether Darangina should be reinstated. HELD:CA REVERSED. Petition GRANTED. No reinstatement & back wages,only salary from appointment until termination. With the expiration of histerm upon hisreplacement, trhere is no longer any remaining term to beserved.Administrative Code of 1987Book VTitle ISubtitle AChapter 5Section27. Employment Status. – Appointment in the career service shall bepermanent or temporary.(1)Permanent Status. A permanent appointment shallbe issued to a personwho meets all the requirements for the position to which he is beingappointed, including appropriate eligibility prescribed, in accordance withthe provisions of law, rules and standards promulgated in pursuancethereof.(2)Temporary Appointment. In the absence of eligible persons and itbecomes necessary in the public interest to fill a vacancy, a tempappointment shall be issued to a person who meets all the requirementsfor the position to which he is being appointed except the appropriate civilservice eligibility: Provided, that such temporary appointment shall notexceed 12 mos., but the appointee may be replaced sooner if a qualifiedcivil service eligible becomes available.   LAPINID V. CIVIL SERVICE FACTS:Lapinid was appointed by the Philippine Ports Authority to theposition of Terminal Supervisor. This appointment was protested by Junsay,who contended that he should be designated terminal supervisor, or to anyother comparable position, in view of his preferential right thereto.Complaining that the PPA had not acted on his protest, Junsay went to theCivilService Commission and challenged Lapinid's appointment on the samegrounds he had earlier raised before the PPA.In a resolution, the Commission held that Junsay had a preferential right tothe position and ordered that he beappointed thereto. ISSUE/S:WON the Civil Service Commission authorized to disapprove apermanent

appointment on the ground that another person is better qualifiedthan the appointee and, on the basis of this finding, order his replacement bythe latter. HELD:NO, the CSC was not authorized to do so. The Civil ServiceCommission has nopower of appointment except over its own personnel.Neither does it have theauthority to review the appointments made by otheroffices except only to ascertain if the appointee possesses the requiredqualifications. The determination of who among aspirants with the minimumstatutory qualifications should be preferred belongs to the appointingauthority and not the Civil Service Commission. It cannot disallow anappointment because it believes another person is better qualified and muchlesscan it direct the appointment of its own choice.Appointment is a highly discretionary act that even this Court cannot compel.While the act of appointment may in proper cases be the subject of mandamus, the selection itself of the appointee taking into account thetotality of his qualifications, including those abstract qualities that define hispersonality is the prerogative of the appointing authority. This is a matter addressed only to the discretion of the appointing authority.It is apolitical question that the Civil Service Commission has no power toreview under the Constitution and the applicable laws.2. temporary - In the absence of appropriate eligibles and it becomesnecessaryin the public interest to fill a vacancy, a temporary appointmentshould be issued to a person who meets all the requirements for theposition to which he is being appointed except the appropriate civilservice eligibility: Provided, That such temporary appointment shall notexceed twelve months, but the appointee may be replaced sooner if aqualified civilservice eligible becomes available.The Administrative Code of 1987 characterizes the Career Serviceas:(1) Open Career positions for appointment to which prior qualificationinan appropriate examination is required;(2) Closed Career positions which are scientific, or highly technical innature; these include the faculty andacademic staff of state collegesand universities, and scientific and technical positions in scientific orresearch institutions which shall establish and maintain their own meritsystems;(3) Positions in the Career Executive Service; namely, Undersecretary,Assistant Secretary, Bureau Director, Assistant Bureau Director,Regional Director, Assistant Regional Director, Chief of DepartmentService and other officers of equivalent rank as may be identified bythe Career Executive Service Board, all of whom are appointed by thePresident.(4) Career officers, other than those in the Career Executive Service,who are appointed by the President, such as the Foreign ServiceOfficers in the Department of Foreign Affairs;(5) Commission officers and enlisted men of the Armed Forces whichshall maintain a separate merit system;(6) Personnel of government-owned or controlled corporations,whetherperforming governmental or proprietary functions, who do notfall under the

non-career service; and(7) Permanent laborers, whether skilled, semi-skilled, or unskilled. The Non-Career Service, on the other hand, is characterized by:. . . (1) entrance on bases other than those of the usual tests of meritand fitness utilized for the career service; and(2) tenure which is limited to a period specified by law, or which iscoterminous with that of the appointing authority or subject to hispleasure, or which is limited to the duration of a particular project forwhich purpose employment was made.Included in the non-career service are:1. elective officials and their personal or confidential staff; 2. secretaries and other officials of Cabinet rank who hold theirpositions at the pleasure of the President and their personalconfidential staff(s);3.Chairman and Members of Commissions and boards with fixed termsof office and their personal or confidential staff;4. contractual personnel or those whose employment in thegovernment is in accordance with a special contract to undertake aspecific work or jobrequiring special or technical skills not available inthe employing agency,to be accomplished within a specific period,which in no case shall exceed one year and performs or accomplishesthe specific work or job, under his own responsibility with a minimumof direction and supervision from the hiring agency.5. emergency and seasonal personnel. There is another type of non-career employee: Casual  where and when employment is not permanent butoccasional, unpredictable, sporadic and brief in nature (Caro v.Rilloroza, 102 Phil. 70; Manuel v. P.P. Gocheco Lumber Co., 96 Phil.945) The employment status of personnel hired under foreign-assisted projects isconsidered co-terminus, for the duration of the project.CSC Memorandum Circular No. 11, series of 1991 (5 April 1991) characterizesthe status of a co-terminous employee —(3) Co-terminous statusshall be issued to a person whose entrance in theservice is characterized by confidentiality by the appointing authority or thatwhich is subject to his pleasure or co-existent with his tenure. The foregoing status (co-terminous) may be further classified into thefollowing:a)co-terminous with the project — When the appointment is co-existent withtheduration of a particular project for which purpose employment was madeor subject to the availability of funds for the same; b)co-terminous with the appointing authority — when appointment is co-existent with the tenure of the appointing authority. c)co-terminous with the incumbent — when appointment is co-existent withthe appointee, in that after the resignation, separation or termination of theservices of the incumbent the position shall be deemed automaticallyabolished; andd)co-terminous with a specific period, e.g. "co-terminous for a period of 3years" — the appointment is for a specific period and upon expiration thereof,the position is deemed abolished. Felwa V. Salas, equal protection clause applies to persons or thingsidentically situated and does not bar a reasonable classification of the subjectoflegislation, and a classification is reasonable where:(1.)it is based on substantial distinctions which make real differences;(2.)these are germane

to the purpose of thelaw(3.)the classification applies not only to present conditions but also tofuture conditions which are substantially identical to those of the present;(4.)the classification applies only to those who belong to the same class.Applying the criteria, the Early Retirement Law would be violative of theEqual Protection Clause if the SC sustains the denial to a class of governmentemployees similarly situated tothose covered.Expressio unius est exclusion alterius or casus omissus pro omisso habendusest – a person omitted from an enumeration must be held to have beenomitted intentionally - should not be the applicable maxim in thiscase; butthe doctrine of necessary implication – what is implied in a statute is as mucha part thereof as that which is expressed; & Ex necessitate legis – everystatutory grant of power, right or privilege is deemed to include all incidentalpower, right or primilege;& in eo plus sit,simper inest et minus – the greater includes the lesser.Note that pending in Congress is a House Bill to extend the Early RetirementLaw, and also thecoverage includes contractual employees already whichwas admittedly overlooked before.Aco-terminus employee is a non-career civil servant, like casual and emergency employees.A co-terminus or project employee should be included inthe coverage of theEarly Retirement Law, as long as:1.)they file their application prior to the expiration of their term;2.)comply with CSC regulations promulgated for such purpose –Memorandum Circular No. 14 Seriesof 1990 implementing RA 6850 requiresas a condition to qualify for the grant of eligibility, an aggregate or total of 7yrs of government service which need not be continuous, in the career ornon-career service, whether appointive, elective, casual, emergency,seasonal, contractual or co-terminus, including military and polic service, asevaluated and confirmed by the CSC.A similar regulation should be promulgated for the inclusion in RA 6683 of co-terminus personnel who survive the test of time  AQUINO V. CSC FACTS:Victor A. Aquino was holding the position of Clerk II, Division City of Schools of San Pablo City. On Feb. 16, 1984, he was designated as PropertyInspector and In-Charge of the Supply Office performing duties andresponsibilities of Supply Office I. Upon retirement of the Supply Officer I,DECS Regional Director Saturnino R. Magturo designated Aquino as OIC of theDivision Supply Office.On Septermber 19, 1986, the Division Superintendent Milagros Tagle issueda promotional appointment to Leonarda D. De La Paz as Supply Officer I inthe DECS Dvision of San Pablo City. Civil Service approved her appointmentas permanent “provided that there is no pending administrative case againstthe appointee, no pending protest against the appointment, nor any decisionby competent authority that will adversely affect the approval of theappointment.”Aquino questioned the appointment of de la Paz.DECS Secretary Lourdes R. Quisumbing sustained the protest and revokedthe

appointment of de la Paz,appointing Aquino instead. The Merit SystemsProtection Board (MSPB) also upheld the appointment of Aquino as SupplyOfficer I. The CSC reversed the DECS Sec & MSPB, restoring de la Paz to her positionas Supply Officer I. Ground: Security of Tenure had already attached to de laPaz. (CONSTI ART IX-B, SEC 2. PAR 3)   ISSUE/S:Whether the appointing authority can revoke appointment on theground that another is more qualified. HELD: The appointing authority cannot revoke the appointment to de la Pazon mereground that the protestant is more qualified.PD 807: Civil Service Law, Section 19. provides the “for cause” grounds, Par.6.(1.)That the appointee is not qualified(2.)That the appointee is not the next in rank (3.)In case of appointment by transfer, reinstatement, or by originalappointment, that the protestant is not satisfied with the writtenspecial reason/s given by the appointing authorityIn addition the appointment of Aquino was tainted with irregularity, withundue haste, and is not valid because an appointment to an office which isnot vacant is null and void.CSC Resolution No. 83-343 prohibits theissuance of an appointment to theprotestant, if the protest case is not yetfinally resolved.     CIVIL SERVICE COMMISSION v. SALAS FACTS:On October 7, 1989, Rafael M. Salas was appointed by the PAGCORChairman as Internal Security Staff Member (ISS) and assigned to the Casinoat the Manila Pavilion Hotel.ISS members do not directly report to the Office of the Chairman, and issubject to the control and supervision of an Area Supervisor who onlyimplements the directives of the Branch Chief Security Officer. The BOD of PAGCOR terminated him on Dec. 3, 1991 grounds: loss of confidence.Salas was allegedly engaged in proxy betting – in affidavits of 2 customers,claiming to have been used as gunners.CA reversed finding that Salas is not a confidential employee and cannot bedismissed on that ground, applying the“proximily rule” enunciated in Case63: Grino V. CSC & Case 60: De los Santos V. Mallare 10. CA also held that PD 1869 Section 16 has been repealed by Section 2 (1),Article IX-B of the Consti. ISSUE/S:

 1.Whether Salas is a confidential employee?2. Whether the Pinero doctrine is still applicable?  HELD:Every appointment implies confidence, but more more than ordinary confidence is reposed in theoccupant of a position that is primarily confidential. The latter phrase denotes not only confidence in the aptitudeof the appointee for the duties of the office,but primarily close intimacy which insures freedom of intercourse without embarrassment or freedom frommisgivings of betrayals of personal trust or confidential matters of the State.In Pinero, et. al. V. Hechanova, et. al. “since the enactment of RA 2260: the 1959 Civil Service Act, it is the nature of the position which finally determines whether a position is:a.)primarily confidential,b.)policy determining orc.)highly technical.Senator Tanada: “in the 1stinstance, it is the appointing power that determines the nature of the position.In case of conflict, then it is the Court that determines whether the position is primarily confidential ornot.”-Employees occupying various positions in the Port Patrol Division of the Bureau of Customs, whichis part of the Customs police force, is not in itself sufficient indication that there positions areprimarily confidential.1. No.Salas’ position is the lowest in the chain of command. His job description isordinary, routinary and quotidian in character. His pay is only P2,200 permonth.He does not enjoy that “primarily close intimacy” which characterizes aconfidential employee.Where the position occupied is remote from that of the appointing authority,the element of trust between them is no longer predominant.Citing Case Tria V. Sto. Tomas, “the fact that sometimes, private respondentmay handle ordinarily confidential matters or papers which are somewhatconfidential in nature does not suffice to characterize his position as primarilyconfidential.”2. Yes. PD 1869 can be no more than initial determinations that are not conclusive incases of conflict.1986 Constitutional Commission Records The primary purpose of the framers of the 1987 Constitution in providing forthedeclaration of a position asa.)primarily confidential,b.)policy determiningorc.)highly technicalis to exempt these categories from competitive examinations as a means fordetermining merit and fitness.It must be stressed further that these positions are covered by the security of tenure, although they are considered non-competitive only in the sense thatappointees thereto do not have to undergo competitive examinations forpurposes of determining merit and fitness.CSC Resolution 91-830 does not make PAGCOR employees confidential,merely reiterates exemptionfrom civil service eligibility requirement.In reversing the decision of theCSC, the CA opined that the provisions of Section 16, PD 1869 may no longerbe applied in the case at bar because thesame is deemed to have been repealed in its entirety by Section 2 (1), ArticleIX-B of the 1987 COnsti. This is not completely correct. On this point, we approve the more logicalinterpretation advanced by the CSC to the effect that “Section 16 of

PD 1869insofar as it exempts PAGCOR positions from the provisions of the CivilService Law & Rules has been amended, modified or deemed repealed by the1987 Consti & EO 292: Administrative Code of 1987. However, the same cannot be said with respect to the last portion of Section16 which provides that “All employees of the casinos and related servicesshall be classified as “Confidential” appointees.” While such executivedeclaration emanated merely from the provisions of  Implementing Rules of the Civil Service Act of 1959Rule XXSection 2 The power to declare a position as:a.)primarily confidential,b.)policy determining orc.)highly technical,as defined thereinhas subsequently been codified and incorporated in EO 292: Administrative Code of 1987Book V. Civil Service CommissionSection 12. The Commission shall have the ff powers and functions: (9). Declare positions in the Civil Service as may properly be primarilyconfidential, highly technical or policy determining. This later enactment only serves to bolster the validity of the categorizationmade under Section 16 PD 1869.Be that as it may, such classification is not absolute and all-encompassing.Prior to the passage of the Civil Service Act of 1959, there were2 recognized instances when a position may be declared primarilyconfidential:1:when the President, upon recommendation of the Commissioner of CivilService, has declared the position to be primarily confidential;2:in the absence of such declaration, when by the nature of the functions of the office, there exists “close intimacy” between the appointing powerwhich ensures freedom of intercourse without embarrassment of freedomfrom misgivings of betrayals of personal trust or confidential matters of the State.RA 2260: Civil Service Act (June 19, 1959)Section 5.“The non-competitive or unclassified service shall be composed of positions expressly declared by law to be in the non-competitive orunclassified service or those which are policy determining, primarilyconfidential or highly technical in nature.”General Rules Implementing PD 807: Civil Service RulesSection 1. “appointments to the Civil Service, except as to those which are policy determining, primarilyconfidential, or highly technical in nature, shall bemade only according to merit and fitness to bedetermined as far as practicable by competitive examinations.” SEPARATE OPINIONSVITUG, J ., concurring:- Highlighted the phrase, "without prejudice to the filing of administrativecharges against (Salas) if warranted," found in the dispositive portion of thedecision of the appellate court. It would seem tome that the adverse findingsarrived at by the Intelligence Division of PAGCOR which the Board o

f Directors relied upon to terminate the services of Salas on ground of loss of confidence could well be constitutive of the administrative infractions thatthe appellate court must have had in mind. The case should be remanded to the CSC to specifically meet head-onPAGCOR's foregoing findings and to thereby fully ventilate, as well as passupon, the appeal to it (CSC) on the basis with an opportunity for a hearingadequately accorded to Salas ISSUE/S:1) Whether the term “compensation” in P. D. No. 198, §13, asamended by P. D. No. 768 and P. D. No. 1479 does not include the allowancesand per diems which had been disallowed in this case, considering §2(i) of P.D. No. 1146 as amended by RA 8291, which provides that “compensation”means “the basic pay or salary by an employee, pursuant to hisemployment/appointment, excluding per diems, bonuses, overtime pay,allowances and any other emoluments received in addition to the basic paywhich arenot integrated into the basic pay under existing laws.”2) Whether the prohibition in PD 198, §13 against the grant of additionalcompensation to board members must be deemed repealed by virtue of §22of R. A. No. 6758, otherwise known as the Salary Standardization Law, whichtook effect on July1, 1989.* If yes to 1 and 2, then the members of the board of directors of waterdistricts are entitled to receive benefits in addition to those authorized to bepaid pursuant to their charter and the guidelines of the LWUA after theeffectivity of R. A. No. 67583) Whether the disallowance of duplication of claims of transportationallowance of various BWD employees, as well as the grant of RATA, riceallowance, and excessive per diems to members of the board of directorsof BWD, would impair vested rights, violate any rule against diminution of benefits, and undermine the management prerogative of water districts; and HELD:1) NO. The definitions of the term “compensation” in the statutesrelied on by petitioners are for limited purposes only and cannot be deemedto comprehend such other purposes not specifically included in theprovisions thereof. Words and phrases in a statute must be given their natural, ordinary, andcommonly-accepted meaning, due regard being given to the context in whichthe words and phrases are used. The provision petitioners cite as basis refers to the basis for the computationof employer and employee contributions to the GSIS as well as the benefits towhich such employees are entitled. In the same manner, under §32 of theNIRC, “compensation” includes fees, salaries, wages, commissions, andsimilar items for purposes of recognizing taxable income. The definitions of the term “compensation” in these statutes are for limitedpurposes only and cannot be deemed to comprehend such other purposesnot specifically included in the provisions thereof.Under P. D. No. 198, §13, per diem is precisely intended to be thecompensation of members of board of directors of water

districts.By specifying the compensation which a director is entitled to receive and bylimiting the amount he/she is allowed to receive in a month, and, in the sameparagraph, providing “No director shall receive other compensation” than the amount provided for per diems, the law quite clearlyindicates that directorsof water districts are authorized to receive only the per diem authorized bylaw and no other compensation or allowance in whatever form.2) NO. The Salary Standardization Law does not apply to petitioners becausedirectors of water districts are in fact limited to policy-making and areprohibited from the management of the districts, as provided by §18 thereof.R. A. No. 6758, §4 specifically provides that the Salary Standardization Lawapplies to “positions, appointive or elective, on full or part-time basis, nowexisting or hereafter created in the government, including GOCCs and GFIs.” The Salary Standardization Law adopts a Position Classification Systemclassifying positions into four main categories, namely: professionalsupervisory, professional non-supervisory, sub-professional supervisory, andsub-professional non-supervisory, and the rules and regulations for itsimplementation.A review of the provisions of the Salary Standardization Law will reveal thatthe Salary Standardization Law does not apply to petitioners becausedirectors of water districts are in fact limited to policy-making and areprohibited from the management of the districts. The fact that §12 and §17 of the Salary Standardization Law speak of allowances as “benefits” paid in addition to the salaries incumbents arepresently receiving makes it clear that the law does not refer to thecompensation of board of directors of water districts as these directors do notreceive salaries but per diems for their compensation.3) NO. The erroneous application and enforcement of the law by publicofficers does not estop the Government from making a subsequent correctionof such errors – practice, without more, no matter howlong continued, cannotgive rise to any vested right if it is contrary to law.Management prerogative refers to the right of an employer to regulate allaspects of employment, such as the freedom to prescribe work assignments,working methods, processes to be followed, regulation regarding transfer of employees, supervision of their work, lay-off and discipline, and dismissal andrecall of work. Clearly, the existence of suchright presupposes the existenceof an employer-employee relationship. As to the BWD board of directors: The BWD board of directors are notemployees of BWD. As already noted, their function, as defined by P. D. No.198, is limited to policy-making.Moreover, as also noted before, the right of directors of water districts to thepayment of compensation is expressly provided for in PD 198, thus pre-empting the exercise of any discretion by the waterdistricts.    

                 PANIS v. CIVIL SERVICE COMMISSIONFACTS:Petitioner was employed as Administrative Officer of the Hospital,while private respondent was Administrative Officer of the City HealthDepartment detailed at the said hospital. The Mayor appointed private respondent to the position of Assistant Chief of Hospital for Administration of CCMC. Petitioner, a candidate for the saidposition, promptly protested the appointment before the Regional Office of the Civil Service Commission (CSC). The CSC Regional Office, however,indorsed the matter to the Office of the City Mayor, which in turn referred itto the Office of the City Attorney. The City Attorney dismissed petitioner's protest and upheld the appointmentof private respondent. This dismissal was affirmed by the CSC Regional Officeand later on appeal, by respondent CSC. Hence, the present petition.Petitioner contends that theappointment of private respondent was made inviolation of law, existing civil service rules and established jurisprudencebecause (1) the position of Assistant Chief of Hospital for Administration wasnot legally created; (2) assuming that it was, there was no qualificationstandard nor valid screening procedure; and (3) the seniority and next-in-rank rules were disregarded. ISSUE/S:WON the appointment was valid. YES. The position of Assistant Chief of Hospital for Administration isthe very same position of  HELD:Hospital Administrator created by Ordinance No.1216. The Office of Hospital Administrator was not extinguished, but thedesignation thereof merely corrected to reflect the proper classification of theposition under existing rules. The Office of Assistant Chief of Hospital forAdministration therefore was created and existed in accordance with law. The determination who among the qualified candidates should be preferredbelongs to the appointing authority. The Mayor of Cebu City, in the instantcase, chose to appoint private respondent.In other words, one who is "next in rank" to a vacancy is given preferentialconsideration for promotion to the vacant position, but it does not necessarilyfollow that healone and no one else can be appointed. There is no vestedright granted the next in rank nor a ministerial duty imposed on theappointing authority to promote the holder to the vacant position.An appointment, whether to a vacancy or to a newly created position, isessentially within the discretionary power of whomsoever it is vested. Once acandidate possesses the minimum qualities required by law, sufficientdiscr

etion, if not plenary, is granted to the appointing authority. It ismarkworthy that private respondent was detailed at the CCMC primarily tohelp in upgrading the level of performance of the said hospital