Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. NO. L-69137 August 5, 1986
FELIMON LUEGO, petitioner-appellant,
vs.
CIVIL SERVICE COMMISSION and FELICULA TUOZO, respondents-appellees.
Jose Batiquin for petitioner-appellant.
Fausto F. Tugade for private respondent-appellee.

CRUZ, J.:
Stripped of irrelevant details and impertinent incidents that have cluttered the voluminous record, the
facts of this case may be briefly narrated as follows:
The petitioner was appointed Administrative Officer 11, Office of the City Mayor, Cebu City, by Mayor
Florentino Solon on February 18, 1983. 1 The appointment was described as permanent" but the Civil
Service Commission approved it as "temporary," subject to the final action taken in the protest filed by
the private respondent and another employee, and provided "there (was) no pending administrative
case against the appointee, no pending protest against the appointment nor any decision by
competent authority that will adversely affect the approval of the appointment." 2 On March 22, 1984,
after protracted hearings the legality of which does not have to be decided here, the Civil Service
Commission found the private respondent better qualified than the petitioner for the contested
position and, accordingly, directed "that Felicula Tuozo be appointed to the position of Administrative
Officer 11 in the Administrative Division, Cebu City, in place of Felimon Luego whose appointment as
Administrative Officer II is hereby revoked." 3 The private respondent was so appointed on June 28,
1984, by the new mayor, Mayor Ronald Duterte. 4 The petitioner, invoking his earlier permanent
appointment, is now before us to question that order and the private respondent's title.
The issue is starkly simple: Is the Civil Service Commission authorized to disapprove a permanent
appointment on the ground that another person is better qualified than the appointee and, on the
basis of this finding, order his replacement by the latter?
The Solicitor General, rather than face the question squarely, says the petitioner could be validly
replaced in the instant case because his appointment was temporary and therefore could be
withdrawn at will, with or without cause. Having accepted such an appointment, it is argued, the
petitioner waived his security of tenure and consequently ran the risk of an abrupt separation from his
office without violation of the Constitution. 5
While the principle is correct, and we have applied it many times, 6 it is not correctly applied in this
case. The argument begs the question. The appointment of the petitioner was not temporary but
permanent and was therefore protected by Constitution. The appointing authority indicated that it was
permanent, as he had the right to do so, and it was not for the respondent Civil Service Commission
to reverse him and call it temporary.
The stamping of the words "APPROVED as TEMPORARY" did not change the character of the
appointment, which was clearly described as "Permanent" in the space provided for in Civil Service
Form No. 33, dated February 18, 1983. 7 What was temporary was the approval of the appointment,
not the appointment it sell And what made the approvaltemporary was the fact that it was made to
depend on the condition specified therein and on the verification of the qualifications of the appointee
to the position.

The Civil Service Commission is not empowered to determine the kind or nature of the appointment
extended by the appointing officer, its authority being limited to approving or reviewing the
appointment in the light of the requirements of the Civil Service Law. When the appointee is qualified
and authorizing the other legal requirements are satisfied, the Commission has no choice but to attest
to the appointment in accordance with the Civil Service Laws.
As Justice Ramon C. Fernandez declared in an earlier case:
It is well settled that the determination of the kind of appointment to be extended lies in
the official vested by law with the appointing power and not the Civil Service
Commission. The Commissioner of Civil Service is not empowered to determine the
kind or nature of the appointment extended by the appointing officer. When the
appointee is qualified, as in this case, the Commissioner of Civil Service has no choice
but to attest to the appointment. Under the Civil Service Law, Presidential Decree No.
807, the Commissioner is not authorized to curtail the discretion of the appointing official
on the nature or kind of the appointment to be extended. 8
Indeed, the approval is more appropriately called an attestation, that is, of the fact that the appointee
is qualified for the position to which he has been named. As we have repeatedly held, such attestation
is required of the Commissioner of Civil Service merely as a check to assure compliance with Civil
Service Laws. 9
Appointment is an essentially discretionary power and must be performed by the officer in which it is
vested according to his best lights, the only condition being that the appointee should possess the
qualifications required by law. If he does, then the appointment cannot be faulted on the ground that
there are others better qualified who should have been preferred. This is a political question involving
considerations of wisdom which only the appointing authority can decide.
It is different where the Constitution or the law subjects the appointment to the approval of another
officer or body, like the Commission on Appointments under 1935 Constitution. 10 Appointments made
by the President of the Philippines had to be confirmed by that body and could not be issued or were
invalidated without such confirmation. In fact, confirmation by the Commission on Appointments was
then considered part of the appointing process, which was held complete only after such
confirmation. 11
Moreover, the Commission on Appointments could review the wisdom of the appointment and had the
power to refuse to concur with it even if the President's choice possessed all the qualifications
prescribed by law. No similar arrangement is provided for in the Civil Service Decree. On the contrary,
the Civil Service Commission is limited only to the non-discretionary authority of determining whether
or not the person appointed meets all the required conditions laid down by the law.
It is understandable if one is likely to be misled by the language of Section 9(h) of Article V of the Civil
Service Decree because it says the Commission has the power to "approve" and "disapprove"
appointments. Thus, it is provided therein that the Commission shag have inter alia the power to:
9(h) Approve all appointments, whether original or promotional to positions in the civil
service, except those presidential appointees, members of the Armed Forces of the
Philippines, police forces, firemen, and jailguards, and disapprove those where the
appointees do not possess appropriate eligibility or required qualifications. (emphasis
supplied)
However, a full reading of the provision, especially of the underscored parts, will make it clear that all
the Commission is actually allowed to do is check whether or not the appointee possesses the
appropriate civil service eligibility or the required qualifications. If he does, his appointment is
approved; if not, it is disapproved. No other criterion is permitted by law to be employed by the
Commission when it acts on--or as the Decree says, "approves" or "disapproves" an appointment
made by the proper authorities.
Significantly, the Commission on Civil Service acknowledged that both the petitioner and the private
respondent were qualified for the position in controversy. 12 That recognition alone rendered it functus

officio in the case and prevented it from acting further thereon except to affirm the validity of the
petitioner's appointment. To be sure, it had no authority to revoke the said appointment simply
because it believed that the private respondent was better qualified for that would have constituted an
encroachment on the discretion vested solely in the city mayor.
In preferring the private respondent to the petitioner, the Commission was probably applying its own
Rule V, Section 9, of Civil Service Rules on Personnel Actions and Policies, which provides that
"whenever there are two or more employees who are next-in-rank, preference shall be given to the
employee who is most competent and qualified and who has the appropriate civil service eligibility."
This rule is inapplicable, however, because neither of the claimants is next in rank. Moreover, the
next-in-rank rule is not absolute as the Civil Service Decree allows vacancies to be filled by transfer of
present employees, reinstatement, re-employment, or appointment of outsiders who have the
appropriate eligibility. 13
There are apparently no political overtones in this case, which looks to be an honest contention
between two public functionaries who each sincerely claims to be entitled to the position in dispute.
This is gratifying for politics should never be permitted to interfere in the apolitical organization of the
Civil Service, which is supposed to serve all the people regardless of partisan considerations. This
political detachment will be impaired if the security of tenure clause in the Constitution is emasculated
and appointments in the Civil Service are revoked and changed at will to suit the motivations and
even the fancies of whatever party may be in power.
WHEREFORE, the resolution of the respondent Commission on Civil Service dated March 22, 1984,
is set aside, and the petitioner is hereby declared to be entitled to the office in dispute by virtue of his
permanent appointment thereto dated February 18, 1983. No costs.
SO ORDERED.
Teehankee, C.J., Feria, Yap, Fernan, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., and Paras,
JJ., concur.

Luego vs CSC, 143 SCRA 327

Posted 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 but the 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
respondents 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 permanent and was therefore
protected by Constitution. The appointing authority indicated that it was permanent, as he had the
right to do so, and it was not for the respondent 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 appointment extended 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.

RULING
In Luego v.CSC this court declared 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.
The CSC acknowledged that both the petitioner and the private respondent were qualified for the
position in controversy. That recognition alone rendered it functus officio in the case and prevented it
from acting further thereon except to affirm the validity of the petitioner's appointment. To be sure, it
had no authority to revoke the said appointment simply because it believed that the private
respondent was better qualified for that would have constituted an encroachment on the discretion
vested solely in the city mayor.
Only recently, in Gaspar v. Court of Appeals, this Court said: The only function of the CSC in
cases of this nature, according toLuego, is to review the appointment in the light of the requirements
of the Civil Service Law, and when it finds the appointee to be qualified and all other legal
requirements have been otherwise satisfied, it has no choice but to attest to the
appointment. Luego finally points out that the recognition by the Commission that both the appointee
and the protestant are qualified for the position in controversy renders it functus officio in the case
and prevents it from acting further thereon except to affirm the validity of the former's appointment; it
has no authority to revoke the appointment simply because it considers another employee to be
better qualified for that would constitute an encroachment on the discretion vested in the appointing
authority.
The determination of who among several candidates for a vacant position has the best
qualifications is vested in the sound discretion of the Department Head or appointing authority and
not in the CSC.
The CSC cannot substitute its judgment for that of the Head of Office in this regard.

Luego v. Civil Service Commission

FELIMON 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 of this finding, order his replacement by
the latter.
RULING: 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.

Luego v. Civil Service Commission (G. R. No. L-69137)

Posted: August 10, 2011 in Case Digests, Political Law

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
petitioners 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
Commissions order and the private respondents 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 Commissions resolution is set aside.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION

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

DEOGRACIAS A. REGIS, JR., petitioner,
vs.
SERGIO OSMEA, 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 City Mayor, 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 yearly compensation 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 appointment by 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 attached
and 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
April
14,
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 hereby terminated 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.
Respe
ctfully,
By
order
of the
Mayor
:
(SGD.
)
Vicent
e V.
Pacific
o
Secret
ary 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 attached copy 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 appointment hereto 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 of the 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 then Congressman Durano, the political rival of respondent
Mayor Osmea; 4 and
11. The records of the Regional Office of the Civil Service Commission in Cebu City do
not show that petitioner possesses any civil 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 of Facts 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 1963Approved under Section 24(c) of R.A. No.
2260, subject to availability of funds and subject to Section 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 petition on 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/detective civil 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 the Civil Service. The Civil Service Commission does not ensure any
appointment; it only certifies an eligible to be possessed of the qualification, 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 the
appointment 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 noncivil service eligible, was appointed 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 he was 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 Service Commission 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 to his 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 his appointment 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 by paragraph (c) of Section
24 of R.A. No. 2260 while temporary appointments are covered by paragraph (d) of said Section. For
convenience We quote both paragraphs:
xxx xxx xxx
(c) Provisional appointments A provisional appointment may be issued upon prior
authorization of the Commissioner in accordance with the provisions of the Act and the
rules and standards promulgated in 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 in the 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,
provisional appointment and temporary appointment thus:

10

We made a distinction between a

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 temporary
appointment 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 Commissioner in accordance with the
provisions of this Act and the rules and standards promulgated in
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 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 intended for 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 that a 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 has not 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. As a
matter of fact, under this provision, even if the appointee has the 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 Piero, et al. vs. Hechanova, et al., L-22562, 22 October 1966, 12 We held:

. . . Even in the case of those holding provisional or probationary appointments . . . the

invalidity thereof can not be declared 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 by a 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; Piero 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 one holding 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 July
1971, 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 Piero
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 and lawful 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. These facts negated the pretended basis for the
dismissal. The real hidden cause was not that service of the nature and character rendered by
petitioner was no longer needed, but that petitioner had become unacceptable to the appointing
authority. Petitioner testified that his removal was politically motivated, 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 even alleged 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, Rule
IV, 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 favor of 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 a period of five (5) years. 18
In Ginson vs. Municipality of Murcia, et al., We ruled:
Considering however, the lapse of time spanning almost twenty yearssince 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 requisites of 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 Osmea 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 effect that he
adopted the position of his predecessor, Mayor Osmea, 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 any other 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 in obedience 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 the Civil
Service and so enjoyssecurity 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
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 does not
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 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.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 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. 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 as the 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 in his
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. There is

also 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 to show that the
termination is for cause.

TOMAS D. ACHACOSO vs CATALINO MACARAIG and

RUBEN D. TORRES
Posted 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
Administration
In compliance with a request addressed by the President of the Philippines to all Department Heads,
Undersecretaries, Assistant Secretaries, Bureau Heads, and other government officials, he filed a
courtesy resignation.
This was accepted by the President, with deep regrets.
The Secretary of Labor requested him to turn over his office to the Deputy Administrator as officer-incharge.
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 Presidents 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 one of the characteristics of the Career Service as distinguished from the Non-Career
Service. 1 Claiming to have the rank of undersecretary, he says he comes under Article IV, Section 5
of P.D. 807, otherwise known as the Civil Service Decree, which includes in the Career Service:
3.Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary, Bureau
Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of
Department Service and other officers of equivalent rank as may be identified by the Career
Executive Service Board, all of whom are appointed by the President.
His argument is that in view of the security of tenure enjoyed by the above-named officials, it was
beyond the prerogatives of the President to require them to submit courtesy resignations. Such
courtesy resignations, even if filed, should be disregarded for having been submitted under duress,
as otherwise the President would have the power to remove career officials at pleasure, even for
capricious reasons
The respondents assert he is not entitled to the guaranty because he is not a 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 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.

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.
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 he does not possess the required qualifications. Such
right will have to depend on the nature of his appointment, which in turn depends on his eligibility or
lack of it. A person who does not have the requisite qualifications for the position cannot be appointed
to it in the first place or, only as an exception to the rule, may be appointed to it merely in an acting
capacity in the absence of appropriate eligibles.
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 terminating official relations known
in the law of public officers as expiration of the term. His term is understood at the outset as without
any fixity and enduring at the pleasure of the appointing authority. When required to relinquish his
office, he cannot complain that he is being removed in violation of his security of tenure because
removal imports the separation of the incumbent before the expiration of his term. 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 Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 93023 March 13, 1991

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

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

CRUZ, J: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 by the President on April 3, 1990, "with deep regrets." On
April 10, 1990, the Secretary of Labor requested him to turn over his office to the Deputy
Administrator as officer in-charge. In a letter dated April 19, 1990, he protested his replacement and
declared he was not surrendering his office because his resignation was not voluntary but filed only in
obedience to the President's directive. On the same date, respondent Jose N. Sarmiento was
appointed Administrator of the POEA, vice the petitioner. Achacoso was informed thereof the
following day and was again asked to vacate his office. He filed a motion for reconsideration on April
23, 1990, but this was denied on April 30, 1990. He then came to this Court for relief.
In this petition for prohibition and mandamus, this Court is asked to annul the appointment of
Sarmiento and to prohibit the respondents from preventing the petitioner from discharging his duties
as Administrator of the POEA.
Achacoso contends that he is a member of the Career Service of the Civil Service and so enjoys
security of tenure, which is one of the characteristics of the Career Service as distinguished from the
Non-Career Service. 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" to require them to submit courtesy resignations. Such
courtesy resignations, even if filed, should be disregarded for having been submitted "under duress,"
as otherwise the President would have the power to remove career officials at pleasure, even for
capricious reasons. In support of this contention, he 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 in 1987:
C E R T I F I C AT 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.
JURIDICO
Executive Director
Reference is also made to the following rules embodied in Part III, Article IV, Integrated
Reorganization Plan as approved by P.D. 1 and amended by P.D. 336 and P.D. 337, on the career
executive service:
c. Appointment. Appointment to appropriate classes in the Career Service shall be
made by the President from a list of career executive eligibles recommended by the
Board. Such appointments shall be made on the basis of rank; provided that
appointments to the higher ranks which qualify the incumbents to assignments as
undersecretary and heads of the bureaus and offices and equivalent positions shall be
with the confirmation of the Commission on Appointments. The President may, however,
in exceptional cases, appoint any person who is not a Career Executive Service
eligible, provided that such appointee shall subsequently take the required Career
Executive Service examination and that he shall not be promoted to a higher class until
he qualifies in such examination. (Emphasis supplied.)
The respondents contend that as the petitioner was not a career executive service eligible at the time
of his appointment, he came under the exception to the above rule and so was subject to the
provision that he "shall subsequently take the required Career Executive Service examination and
that he shall not be promoted to a higher rank until he qualifies in such examination." Not having
taken that examination, he could not claim that his appointment was permanent and guaranteed him
security of tenure in his position.
It is settled that a permanent appointment can be issued only "to a person who meets all the
requirements for the position to which he is being appointed, including the appropriate eligibility
prescribed." Achacoso did not. At best, therefore, his appointment could be regarded only as
temporary. And being so, it could be withdrawn at will by the appointing authority and "at a moment's
notice," conformably to established jurisprudence.
The Court, having considered these submissions and the additional arguments of the parties in the
petitioner's Reply and the Solicitor-General's Rejoinder, must find for the respondents.
The mere fact that a position belongs to the Career Service does not automatically confer security of
tenure on its occupant even if he does not possess the required qualifications. Such right will have to
depend on the nature of his appointment, which in turn depends on his eligibility or lack of it. A person
who does not have the requisite qualifications for the position cannot be appointed to it in the first
place or, only as an exception to the rule, may be appointed to it merely in an acting capacity in the
absence of appropriate eligibles. 3 The appointment extended to him cannot be regarded as
permanent even if it may be so designated.
The purpose of an acting or temporary appointment is to prevent a hiatus in the discharge of official
functions by authorizing a person to discharge the same pending the selection of a permanent or
another appointee. 4 The person named in an acting capacity accepts the position under the condition
that he shall surrender the office once he is called upon to do so by the appointing authority.
In these circumstances, the acting appointee is separated by a method of terminating official relations
known in the law of public officers as expiration of the term. His term is understood at the outset as
without any fixity and enduring at the pleasure of the appointing authority. When required to relinquish
his office, he cannot complain that he is being removed in violation of his security of tenure because

removal imports the separation of the incumbent before the expiration of his term. 5 This is allowed by
the Constitution only when it is for cause as provided by law. The acting appointee is separated
precisely because his term has expired. Expiration of the term is not covered by the constitutional
provision on security of tenure.
There is a long line of cases affirming the rule that:
. . . One who holds a temporary appointment has no fixed tenure of office; his
employment can be terminated at the pleasure of the appointing power, there being no
need the show that the termination is for cause. 6
The petitioner contends that his appointment was really intended to be permanent because temporary
appointments are not supposed to exceed twelve months and he was allowed to serve in his position
for more than three years. This is unacceptable. Even if that intention were assumed, it would not by
itself alone make his appointment permanent. Such an appointment did not confer on the petitioner
the appropriate civil service eligibility he did not possess at the time he was appointed, nor did it vest
him with the right to security of tenure that is available only to permanent appointees.
The case of Luego vs. Civil Service 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, 8PalmaFernandez 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. It is so ordered.
Fernan, C.J., Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Bidin, Sarmiento, GrioAquino, 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 the Resolutions 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

respondents Heirs of Agustin Pato, Adolfo del Valle Brusas & Zenaida Brusas, Trifona Federis,
Mauricio Medialdea & Nelson Tongco, Mariano de los Angeles, Heirs of Miguel Pato, Araceli
Barrameda Aclan and 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 Action No. P-2-89, petitioner proposed to pay respondents P20,000.00 per
hectare, or P2.00 per square meter, as just compensation for their lands. Respondents resisted
the attempt of petitioner to expropriate their properties arguing, among others, that there was no
public necessity. Motions to Dismiss filed by respondents were, however, denied by the RTC.
After a protracted litigation that led to the appointment of Commissioners to determine the
proper 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, for the public use detailed in its
complaint, and in Res. No. 129, S. of 1998, the lands described in its pars. 1 and 4, consolidated
complaint, as further described its sketch plan, p. 361 records;

2.
Condemning plaintiff to pay defendants as just compensation for the land, owned
by defendants named in the consolidated complaint and enumerated in Annex A as well as the
improvements standing thereon, at the time this decision is executed, and set forth in Annex C
hereof, which is made an integral part of this decision, with 6% interest per annum from the date
cases were individually filed until paid; and

3.
Condemning plaintiff to pay Financial Assistance per E.O. 1035, Sec. 18 to the
tenants mentioned in the summary of the commissioners report and enumerated in Annex A; and
to pay Commissioners 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 be expropriated 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 just compensation should only be P20,000.00 per hectare, or P2.00 per square
meter. Petitioner argued that such value was the amount awarded by other RTCs in the area,
which involved landholdings of the same condition as that of the subject properties.

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

xxxx

The Court RESOLVES to:

xxxx

(d) DISMISS the appeal of plaintiff-appellant Province of Camarines Sur for failure to
pay the jurisdictional requirement of payment of the docket fee pursuant to 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] dated November 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 ITS
DISCRETION IN DISMISSING THE APPEAL OF HEREIN PETITIONER PROVINCE
OF CAMARINES SUR AND IN DENYING ITS MOTION FOR RECONSIDERATION

SUCH DISMISSAL AND DENIAL BEING ENTIRELY NOT IN ACCORD AND

DIRECTLY IN CONTRAVENTION WITH THE APPLICABLE DECISIONS OF THE
SUPREME COURT IN THE INSTANT CASE, CONSIDERING THE ATTENDANT
CIRCUMSTANCES HEREIN WHICH JUSTIFY THE LIBERAL INTERPRETATION
AND APPLICATION OF THE RULES OF COURT.

ii.
THE COURT OF APPEALS SERIOUSLY ERRED IN DISMISSING THE APPEAL OF
HEREIN PETITIONER PROVINCE OF CAMARINES SUR SINCE SAID APPEAL IS
EXCEPTIONALLY MERITORIOUS AS THE APPEALED DECISION COMPLETELY
DEPARTED FROM THE APPLICABLE RULES AND DULY ESTABLISHED
JURISPRUDENCE IN THE DETERMINATION OF JUST COMPENSATION IN
EXPROPRIATION CASES AND INSTEAD THE JUDGE IN THE LOWER COURT
USED HIS OWN PERSONAL VIEW AND BELIEF IN COMING UP WITH THE
VALUATION OF THE PROPERTY AS TO URGENTLY REQUIRE THE EXERCISE OF
THE POWER OF JUDICIAL INTERVENTION AND SUPERVISION BY THE COURT
OF APPEALS.

iii.
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT DENIED
THE MOTION FOR RECONSIDERATION FILED BY HEREIN PETITIONER AND
AFFIRMED ITS RESOLUTION DISMISSING THE APPEAL OF HEREIN
PETITIONER PROVINCE BY CITING ONE CASE WHICH IS NOT APPLICABLE IN
THIS INSTANT CASE AND CITING ANOTHER WHICH IS, IN FACT, SUPPORT OF
THE APPEAL OF HEREIN PETITIONER.[14]

At the crux of the controversy is a determination of the propriety of the CAs resolution
dismissing petitioners appeal for failure to pay the docket fees. In its Motion for
Reconsideration[15] before the CA, petitioner argued that its failure to pay the docket fees was
due to the honest inadvertence and excusable negligence of its former counsel, Atty. Victor D.R.
Catangui, to wit:

xxxx

1.
The failure of the former counsel of herein Plaintiff-Appellant Province of
Camarines Sur (the late Atty. Victor D.R. Catangui) to pay or caused to be paid the appellate
court docket fees was committed through honest inadvertence and excusable negligence, since
during the time that the notice of appeal was filed, said counsel was already having health
problems affecting his heart that substantially distracted him from faithfully performing his
duties and functions as Provincial Legal Officer, including that as counsel of herein PlaintiffAppellant 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 Capitol
Complex, Cadlan, Pili, Camarines Sur and that of his residence in San Roque, Iriga City, which
is, more or less than 27 kilometers is too much for him to physically endure;

3.
That, notwithstanding his resignation from the Provincial Government of
Camarines Sur and subsequent transfer to a much nearer office in Iriga City, he nevertheless, sad
to tell, unexpectedly succumbed on March 2, 2001 at the age of 47. x x x[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 acquire jurisdiction over the subject
matter of the action and the decision sought to be appealed from becomes final and executory.[17]

Records disclose that petitioners former counsel Atty. Catangui filed a Notice of Appeal
on June 15, 2000. On January 15, 2001, Atty. Catangui filed a Motion with the CA notifying the
same that he was withdrawing as counsel for petitioner. On May 31, 2001, the CA issued the
first assailed Resolution, which noted the motion of Atty. Catangui to withdraw as counsel and
which also dismissed petitioners appeal for failure to pay the docket fees. Said resolution was
sent to petitioner via registered mail and was received by petitioners agent, a certain
Loningning Noora-Papa, as evidenced by the Registry Return Receipt. [18] It was only on August
2, 2001 that the CA received the Entry of Appearance [19] of petitioners new counsel, Atty. Elias
A. Torallo, Jr. With the appearance of Atty. Torallo, the CA resent the May 31, 2001 Resolution
informing him of the dismissal of the petition. On September 11, 2001, a day after receiving
said Resolution, Atty. Torallo paid the corresponding docket fees.

From the time Atty. Torallo paid the corresponding docket fees, approximately 15 months
had already lapsed from the time the notice of appeal was filed by petitioners former counsel
Atty. Catangui. This is to this Courts mind, already too late in the day.

While the strict application of the jurisdictional nature of the rule on payment of appellate
docket fees may be mitigated under exceptional circumstances to better serve the interest of
justice,[20] such circumstances are not present in the case at bar.

Petitioners attempt to pass the buck on the sickness of its former counsel, Atty. Catangui,
is not a compelling reason for this Court to relax the strict requirement for the timely payment
of appellate docket fees. While this Court expresses grief over the death of Atty. Catangui, his
sickness[21] was not of such a nature which would have impaired his mental faculties and one

which would have prevented him from filing the docket fees. From the time he filed a notice of
appeal assailing the RTC Decision, Atty. Catangui was still the Provincial Legal Officer for 6
months prior to his transfer to his new post at the National Commission on Indigenous Peoples.
Even if the corresponding docket fees were not paid upon the filing of the notice of appeal, still,
Atty. Catangui could have rectified the situation by paying the fees within the 15-day
reglementary period to file an appeal. As manifested by petitioner, Atty. Catangui was in the
practice of law for 10 years, he should have, therefore, seen to it that the stringent requirements
for an 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 Decision of the

trial court on March 3, 1998. Accordingly, it had, pursuant to Section 3,
Rule 41, until March 18, 1998 within which to perfect its appeal by filing
within that period the Notice of Appeal and paying the appellate docket
and other legal fees. While petitioner filed the Notice 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 it must be
accompanied by the payment of the correct appellate docket fees. Payment
in full of docket fees within the prescribed period is mandatory. It is an essential
requirement without which the decision appealed from would become final and
executory as if no appeal had been filed. Failure to perfect an appeal within the
prescribed period is not a mere technicality but jurisdictional and failure to perfect
an appeal renders the judgment final and executory.

In Guevarra vs. Court of Appeals, where the docket fees were not 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 of Appeals correctly
dismissed the appeal. In Lee vs. Republic of the Philippines, where half of the appellate docket
fee was paid within the prescribed period, while the other half was tendered after the period
within which payment should have been made, we ruled that no appeal was perfected. Clearly,
where the appellate docket fee is not paid in full within the reglementary period, the decision of
the trial court becomes final and no longer susceptible to an appeal. For once a decision becomes
final, the appellate 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 be exercised strictly in accordance with the provisions of the law and rules.
Specifically, the payment of docket fees within the period for perfecting an appeal is mandatory.

In the present case, petitioner has not given sufficient reason why it should be exempt from this
stringent rule.

WHEREFORE, premises considered, the petition is DENIED. The Resolutions of the

Court of Appeals, dated May 31, 2001 and November 19, 2001, in CA-G.R. CV No. 69735,
are AFFIRMED.

SO ORDERED.

Province of Camarines Sur vs CA

May 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 nonagricultural 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) the power 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 of Camarines 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 nonfood 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 of a 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 Camarines Sur 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 the event 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 Province of 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 nonagricultural
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 the local 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 when a 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 to contribute 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-agricultural use.

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

facts: On December 22, 1988, the Sangguniang Panlalawigan of the Province of Camarines Sur
passed a Resolution 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 nontraditional agricultural crops and a housing project for provincial government employees
Pursuant to the Resolution, the Province of Camarines Sur, through its Governor, filed two separate
cases for expropriation against Ernesto N. San Joaquin and Efren N. San Joaquin, at the Regional
Trial Court, Pili, Camarines Sur.
The San Joaquins moved to dismiss the complaints on the ground of inadequacy of the price offered
for their property. In an order, the trial court denied the motion to dismiss and authorized the Province
of Camarines Sur to take possession of the property upon the deposit with the Clerk of Court the
amount provisionally fixed by the trial court to answer for damages that private respondents may
suffer in the event that the expropriation cases do not prosper.
The San Joaquins filed a motion for relief from the order, authorizing the Province of 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 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 the order denying the motion to dismiss and 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.

Asked by the Court of Appeals to give his Comment to the petition, the Solicitor 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 the President of the exercise by the Sangguniang Panlalawigan of the right of eminent
domain. However, the Solicitor General expressed the view that the Province of Camarines Sur must
first secure the approval of the Department of Agrarian Reform of the plan to expropriate the lands of
petitioners for use as a housing project.
The Court of Appeals set aside the order of the trial court, allowing the Province of Camarines Sur to
take possession of private respondents' lands and the order denying the admission of the amended
motion to dismiss. It also 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 private respondents from
agricultural to non-agricultural land.
Issue: WON the Province of Cam Sur must first secure the approval of the Department of Agrarian
Reform of the plan to expropriate the lands of the San Joaquins.
HELD: To sustain the Court of Appeals would mean that the local government units can no longer
expropriate agricultural lands needed for the construction of roads, bridges, schools, hospitals, etc.,
without first applying for conversion of the use of the lands with the Department of Agrarian Reform,
because all of these projects would naturally involve a change in the land use. In effect, it would then
be the Department of Agrarian Reform to scrutinize whether the expropriation is for a public purpose
or public use.
Ratio: WHEREFORE, the petition is GRANTED and the questioned 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 private respondents' property; (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 private respondents' property from
agricultural to non-agricultural use.
The decision of the Court of Appeals is AFFIRMED insofar as it sets aside the order of the trial court,
denying the amended motion to dismiss of the private respondents.
PROVINCE OF CAMARINES SUR vs. CA and TITO B. DATO
July 14, 1995; KAPUNAN,
J.
FACTS:
In January 1, 1960 - private respondent Dato was appointed as Private Agent by 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 he
was appointed to, thus, he could not be legally extended a permanentappointment. He was extended
a temporary appointment, which was renewed annually. January 1, 1974 Gov. Alfelor approved the
change in Dato's employment status from temporary to permanent upon the latter'srepresentation
that he passed the civil service examination for supervising security guards. Said change of status
however, was notfavorably acted upon by the Civil Service Commission (CSC) reasoning that Dato
did not possess the necessary civil service eligibilityfor the office he was appointed to. His
appointment remained temporary and no other appointment was extended to him.March 16, 1976
Dato was indefinitely suspended by Gov. Alfelor after criminal charges were filed against him and a
prison guard forallegedly conniving and/or consenting to evasion of sentence of some detention
prisoners who escaped from confinement. Two years after the request for change of status was
made, Mr. Lope B. Rama, head of the Camarines Sur Unit of the Civil ServiceCommission, wrote the
Gov. a letter informing him that the status of private respondent Dato has been changed from
temporary topermanent, the latter having passed the examination for Supervising Security Guard.
The change of status was to be maderetroactive to June 11, 1974, the date of release of said
examination.Sangguniang Panlalawigan, suppressed the appropriation for the position of Assistant
Provincial Warden and deleted privaterespondent's name from the petitioner's plantilla.Dato was
subsequently acquitted of the charges against him. Consequently, he requested the Gov. for
reinstatement and backwages.His request was not heeded. Dato filed an action before the RTC.RTC
Decision: Ordered the payment of backwages of Dato equivalent to five years. Province of Camarines
Sur appealed the decisionto the CA.CA: Affirmed RTCs decision. Hence the present petition.
ISSUE:
W/N Dato was a permanent employee of petitioner Province of Camarines Sur at the time he was
suspended on March 16,1976.Petitioners contention: When Gov. Alfelor recommended to CSC the
change in the employment status of private respondent fromtemporary to permanent, which the CSC
approved as only

temporary
pending validation of the results of private respondent'sexamination for supervising security guard,
private respondent's appointment in effect remained temporary. Hence, his subsequentqualification
for civil service eligibility did not
ipso facto
convert his temporary status to that of permanent.
SC Held:
Agrees with Petitioners contentions. Dato, being merely a temporary employee, is not entitled to his
claim for backwagesfor the entire period of 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 the aforementioned position. Such lack of a civil service
eligibility made his appointment temporary
and without afixed and definite term and is dependent entirely upon the pleasure of the appointing
power. The fact that private respondent obtained civil service eligibility later on is of no moment as his
having passed the supervisingsecurity guard examination, did not
ipso facto
convert his temporary appointment into a permanent one.
What is required is a newappointment since a permanent appointment is not a continuation of the
temporary appointment these are two distinct acts of theappointing authority The letter
communicated by Mr. Lope Rama to the Gov. of Camarines Sur is a clear arrogation of power
properly belonging to theappointing authority. CSC has the power to
approve
or
disapprove
an appointment set before it. It does not have the power to makethe appointment itself or to direct the
appointing authority to change the employment status of an employee. CSC should have endedits
participation in the appointment of private respondent on January 1, 1974 when it confirmed the
temporary
status of the latterwho lacked the proper civil service eligibility. When it issued the foregoing
communication on March 19, 1976, it stepped on the toesof the appointing authority, thereby
encroaching on the discretion vested solely upon the latter

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 116183 October 6, 1995

SEC. RICARDO T. GLORIA, in his capacity as Secretary of Education, Culture & Sports and
Chairman of the Board of Trustees of the Philippine State College of Aeronautics (PSCA);
JULIAN J. LOLENG, JR., in his capacity as Officer-in-Charge of PSCA; and BOARD OF
TRUSTEES of PSCA, petitioners,
vs.
HON. SALVADOR P. DE GUZMAN, JR., Presiding Judge of Branch 113, Regional Trial Court of
Pasay, Metro Manila; VIRGILIO R. RAMOS, LEONY P. SENDIN, ROSARIO V. CERILLO, ANDREA
A. PESTANO, ARTHUR V. RODRIGUEZA, LENI V. DIMAYUGA, JAIME ABON, RIZALDO O.
VALLE, JOIE ARCEO, SHIRLEY PESTANO, SERVANDO SACUEZA, JAIME C. PONEGAL,
EDGARDO MERCADO, CRISTINA BULADO, BENIGNO T. AQUINO, RODEL PESTANO, JUN JAY
PARMA, NILO B. ELLO, and NELSON SACUEZA, respondents.

HERMOSISIMA, JR., J.:

Intransigence of private respondents in maintaining a patently indefensible position sparked this long
drawn out controversy. Knowing fully well that, as temporary employees whose terms of office,
whether by contract or by the tenor of their appointments, had expired one year after their respective
temporary appointments, that is, on December 31, 1992, they insist on a perceived, albeit mistaken,
right to reinstatement.
Before this Court is a Petition for Certiorari, filed by Hon. Ricardo T. Gloria, in his capacity as
Secretary of Education, Culture and Sports (DECS) and as Chairman of the Board of Trustees of the
Philippine State College of Aeronautics (PSCA); Col. Julian J. Loleng, Jr., in his capacity as Officer-inCharge 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 judgment ordering the reinstatement
of private respondent Rosario V. Cerillo to the position of "Coordinator for Extension Services".
Actually, the act of effecting the termination of the appointment of Rosario V. Cerillo was perpetrated
by Col. Julian J. Loleng, Jr. while it was the Hon. Isidro Cario who was the DECS Secretary. The
case for reinstatement which was filed before respondent Judge Salvador P. de Guzman, Jr. of the
Pasay City Regional Trial Court was instituted during the incumbency of the succeeding DECS
Secretary, the Hon. Armand Fabella. The judgment of the lower court, as a matter of fact, involved the
Hon. Armand Fabella as defendant. In view of the resignation of Secretary Fabella, the duty and
obligation to question the decision aforesaid of Judge Salvador P. de Guzman, Jr. devolved on the
incumbent Secretary, the Hon. Ricardo T. Gloria.
Consequently, the dramatis personae in this case include: DECS Secretary Ricardo T. Gloria; PSCA
Board of Trustees Chairman Col. Julian J. Loleng, Jr.; and the PSCA Board of Trustees created under
Republic Act
No. 7605, as petitioners; and RTC Executive Judge Salvador P. de Guzman, Jr., as public
respondent, and the named private respondents who were the petitioners in the court below.
The facts of the case are not in dispute. The question at issue is one of law: Is private respondent
Rosario V. Cerillo entitled to reinstatement to the position of "Coordinator for Extension Services"?
Private respondents were employees of the Philippine Air Force College of Aeronautics (PAFCA)
which was created by virtue of Presidential Decree No. 1078 on January 26, 1977. Under the said
decree, the Board of Trustees is vested with authority, among others, to appoint, as it did appoint,
officials and employees of the college, except the members of the Board of Trustees themselves and
the President of the college. In line with this authority, the PAFCA Board of Trustees issued
Resolution No. 91-026 on April 1, 1991, which declared that "All faculty/administrative employees are
also subject to the required civil service eligibilities", in accordance with pertinent civil service law,
rules and regulations. Thus, herein private respondents were issued only temporary appointments
because at the time of their appointment, they lacked appropriate civil service eligibilities or otherwise
failed to meet the necessary qualification standards for their respective positions.
Private respondent Rosario V. Cerillo, specifically, was issued a one-year temporary appointment to
the position of Board Secretary II of PAFCA (now PSCA), that is, from January 1, 1992 to December
31, 1992. This appointment went along the line enunciated by the Civil Service Commission in a
letter, dated March 25, 1992. 4 The letter emphasized that temporary appointments were good and
renewable only up to 1992.
On March 24, 1992, private respondent Rosario V. Cerillo was
relieved as Board Secretary of the PAFCA in accordance with Board Resolution No. 92-017 by
reason of loss of confidence. Subsequently, however, she was designated as "Coordinator for
Extension Services".

On June 3, 1992, Republic Act No. 7605 was enacted into law. It converted PAFCA into a state
college to be known as the Philippine State College of Aeronautics (PSCA). The Board of Trustees
likewise was the governing body of the PSCA. The 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 Cario on June 8, 1992.
Only on December 7, 1992 did Col. Loleng inform private respondents that they shall be deemed
separated from the service upon the expiration of their temporary appointments. Had private
respondent Rosario V. Cerillo not been summarily dismissed as Board Secretary on March 24, 1992,
her temporary appointment as such was supposed to have lasted until December 31, 1992.
On June 25, 1993, barely five months after the lapse of the terms of their temporary appointments as
determined by the PSCA administration, the herein private respondents filed before the Regional Trial
Court of Pasay City, presided over by respondent Judge Salvador P. de Guzman, Jr., a "Petition
for Mandamus and Reinstatement, with Back Wages and Damages", docketed as Civil Case No.
10049. The complaint in effect prayed that then DECS Secretary Armand Fabella complete the filling
up of positions for Board of Trustees and order the Board of Trustees to reinstate the respondents in
the case at bench to their respective positions.
In their Answer, 5 the herein petitioners opposed the petition upon the ground that mandamus will not
lie to compel reinstatement because the reappointment prayed for is discretionary on the part of the
appointing power. Besides, it was the claim of Secretary Fabella that a writ of mandamus should be
unavailing to private respondents because of their failure to exhaust administrative remedies.
We find the petition to be impressed with merit.
I
The judgment of respondent Judge Salvador P. de Guzman, Jr. which orders the reinstatement of Ms.
Rosario V. Cerillo to the position of "Coordinator for Extension Services" is patently improper because
it finds no support as to facts and the law. Respondent Cerillo, although temporarily extended an
appointment as Board Secretary II, was dismissed therefrom because of loss of confidence. This
dismissal was neither contested nor appealed from by Ms. Cerillo. There is no question, therefore,
that her dismissal as Board Secretary II could not have been the subject of the petition
for mandamus and reinstatement filed before respondent Judge. The fact is that private respondent's
assignment as "Coordinator for Extension Services" was a mere designation. Not being a permanent
appointment, the designation to the position cannot be the subject of a case for reinstatement.
Furthermore, even granting that Ms. Cerillo could be validly reinstated as "Coordinator for Extension
Services", her reinstatement thereto would not be possible because the position is not provided for in
the PSCA plantilla. The PSCA could not have made any valid appointment for this inexistent position.
This could very well be the reason why she was merely designated as Coordinator. As a mere
designee, she could not have acquired any right to the position even if the position existed.
At any rate, a mere "designation" does not confer upon the designee security of tenure in the position
or office which he occupies in an acting capacity only 6.
II
Should the object of private respondent Cerillo in prosecuting the case in the court below be her
reinstatement to the position of Board Secretary II, the reinstatement prayed for appears to be
impermissible. In the first place,
Ms. Cerillo had already been dismissed from this position for loss of confidence. She did not contest
this dismissal possibly because the position of Board Secretary II is primarily confidential and the
Board of Trustees, when finding her, the incumbent to the position, to be wanting in faithfulness and
integrity dismissed her for that reason alone. She accepted the dismissal without any ripple and when
designated as Coordinator for Extension Services, she indicated acceptance by performing the acts
called for by the designation.

The quarrel between the private respondents, on the one hand, and the PSCA administration, on the
other, came about in this manner:
The Civil Service Commission, mandating a policy, wrote petitioner
Col. Julian J. Loleng, Jr. a letter 7 mandating that temporary appointments of officers/employees of the
PSCA were to last only up to December 31, 1992. For a better perspective, We quote a pertinent
portion of the letter:
xxx xxx xxx
Please note that temporary appointments last only for a maximum of one (1) year and
all personnel appointed in a temporary capacity can be replaced any time by a civil
service eligible. Since you have just been recently covered by the Civil Service Law and
rules, this Field Office approved all your temporary appointments subject to yearly
renewal up to 1992 only. Subsequent appointments should strictly conform with civil
service policies. You may, therefore, advise all your temporary personnel to take civil
service examinations in order to be eligible for appointment.
This letter was implemented by Col. Julian J. Loleng, Jr. Objecting thereto, private respondents
pointed out to the PSCA administration that, in Resolution No. 91-026, dated April 1, 1991, the Board
of Trustees declared that all faculty/administrative employees of the college, while required to acquire
civil service eligibilities under pertinent civil service law, rules and regulations, must exert effort to
acquire civil service eligibilities within a period of three years from their temporary appointments. This,
the private respondents believe should be taken to mean that, should they acquire civil service
eligibilities within that period of three years, they cannot be terminated from the service.
The fact that private respondent Cerillo passed the requisite Civil Service Examination after the
termination of her temporary appointment is no reason to compel petitioners to reappoint her.
Acquisition of civil service eligibility is not the sole factor for reappointment. Still to be considered by
the appointing authority are: performance, degree of education, work experience, training, seniority,
and, more importantly, as in this case, whether or not the applicant enjoys the confidence and trust of
the appointing power. As We said earlier, the position of Board Secretary II, by its nature, is primarily
confidential, requiring as it does "not only confidence in the aptitude of the appointee for the duties of
the office but primarily close intimacy which ensures freedom from misgivings of betrayals of personal
trust or confidential matters of state." 8 In other words, the choice of an appointee from among those
who possessed the required qualifications is a political and administrative decision calling for
considerations of wisdom, convenience, utility and the interests of the service which can best be
made by the Head of the office concerned. 9
It cannot be overemphasized that the PSCA Board Resolution No. 91-026 must yield to the Civil
Service Commission policies on the issuance of temporary appointments. When the Civil Service
Commission directed that temporary appointments were to be effective only up to 1992, it did so in
pursuance of the general purpose of the civil service law, as stated under Section 2 of Republic Act
No. 2260, as amended, which is "to ensure and promote the constitutional mandate regarding
appointments only according to merit and fitness and to provide within the public service a
progressive system of personal administration to ensure the maintenance of an honest and
efficient progressive and courteous civil service in the Philippines. 10 For that matter, it is vested with
the function, among others, to promulgate policies, standards and guidelines for the civil service and
adopt plans and programs to promote economical, efficient and effective personnel administration in
the government. 11
We hold that reappointment to the position of Board Secretary II is an act which is discretionary on
the part of the appointing power. Consequently, it cannot be the subject of an application for a writ
of mandamus.
Reinstatement is technically issuance of a new appointment which is essentially discretionary, to be
performed by the officer in which it is vested according to his best lights, the only condition being that
the appointee should possess the qualifications required by law. 12 Such exercise of the discretionary
power of appointment cannot be controlled, not even by the Court as long as it is exercised properly
by the appointing authority. 13

It is Our holding that the questioned order of reinstatement amounts to an undue interference by the
Court in the exercise of the discretionary power of appointment vested in the PSCA Board of
Trustees.
Surprisingly, the Court a quo, while upholding the right of private respondent Cerillo to a
reappointment, adhered to this pontification by stating that:
The appointment of the petitioners to their former positions is not a matter of right;
rather, it is a matter of discretion on the part of the respondents. Mandamus cannot be
availed of to compel anyone to exercise his discretion absent any showing of grave
abuse of discretion.
III
The termination of the services of private respondents was proper and legal, it being the
consequence of the Board of Trustees' power to appoint. The view of respondent Judge, however, is
that there was no termination ordered. Either the employees' contracts lapsed or their temporary
appointments were abrogated by circulars from the Civil Service Commission. This, as a necessary
consequence of the transition from the Philippine Air Force College of Aeronautics (PAFCA) to the
Philippine State College of Aeronautics (PSCA).
We agree with respondent Judge's disquisition on this point:
To the question was the termination of the services of the petitioners legal or not?, the
only answer is there was not termination to speak of. Termination presupposes an overt
act committed by a superior officer. There was none whatsoever in the case at bar. At
most, Col. Julian (Loleng) gave notice to the petitioners of the expiration of their
respective contracts, Petitioners appointment or employment simply expired either by its
very own terms, or because it may not exceed one year, but most importantly because
the PAFCA was dissolved and replaced by the PSCA. The notice given by Col. Loleng
to the petitioners seem to have been misunderstood by them as an act of dismissal
which as they correctly state, belongs to the Board of Trustees alone.
IV
Considering Our finding that there is merit to the petition, the issue as to whether attorney's fees and
costs of litigation should be awarded to private respondent Rosario V. Cerillo as adjudged in the
questioned decision of respondent Judge has become moot and academic. At any rate, the Court
holds that the said award could not have been imposed because, while it was directly ordered in the
dispositive portion of the decision, it was neither discussed nor justified in the body of the questioned
decision. Clear on this point is Our decision in Policarpio vs.Court of Appeals, 194 SCRA 129, 742,
[1991]: "The Court had occasion to state that the reason for the award of attorney's fees must be
stated in the text of the decision, otherwise, if it is stated only in the dispositive portion of the decision,
the same shall be disallowed." This ruling We reiterated in the case of Koa vs. Court of Appeals, 219
SCRA 541, 549, [1991], citing Central Azucarcra de Bais vs. Court of Appeals, 188 SCRA 328, 340,
where it was stated that "The award of attorney's fees must be disallowed for want of factual and
legal premise in the text of the decision rendered by the court of origin and the appellate court as
well."
WHEREFORE, the petition is GRANTED. The challenged decision, dated January 31, 1994, insofar
as it ordered the reinstatement of
Ms. Rosario V. Cerillo and the payment to the latter of back wages and attorney's fees, and the Order,
dated June 29, 1994, of respondent
Judge Salvador P. de Guzman, Jr. are hereby declared null and void and ordered set aside. The
temporary restraining order/preliminary injunction heretofore issued is hereby made permanent.
SO ORDERED.
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 Guzman rendered 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 requisite Civil Service Examination after the terminationof her
temporary appointment is 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 theappointing power 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 position
of 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 respondent Judge 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 temporarily extended 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 Philippines

SUPREME 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. ALBINA
MANALODANS 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 temporary appointment as VicePresident 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
appointment was '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 President of 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 Temporary Appointment' as VicePresident 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 a permanent one, considering his two and half (2) 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 favorably on his request.
On August 1, 1975, Dr. Esteban received a 'Notification of Ad Interim Appointment notifying him that
the president of the university had approved his appointment as Professor III with a salary of
P15,600 per annum 'effective August 1, 1975'. He was further designated as Director of the 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 Service Commission 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 of Vice-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 as case. 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 by the 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 notices sent 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 that of Dr. Hernani
Esteban "effective May 21, 1973." He produced a copy of the memorandum circular dated August 7,
1915 of the President of the Pamantasan terminating 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 security of 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 failed to 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 and ruled 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 as Civil 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's appointment was invalid, though he may be considered as a de facto vicepresident of the University up to October 9, 1975, the date when the Commission ruled that his
appointment was temporary and could be terminated at any time.
The private respondent appealed to the Intermediate Appellate Court.
On September 26, 1983. the respondent Intermediate Appellate Court rendered a decision reversing
the trial court's decision. The dispositive portion of the 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 literal
translation of the word "ad interim" which creates such belief. The term is defined by Black to mean
"in the meantime" or for the time being, Thus, an officer ad interim is one appointed to fill a vacancy,
or to discharge the duties of the office during the absence or temporary incapacity of its regular
incumbent (Black's Law Dictionary, Revised Fourth Edition, 1978). But such is not the meaning nor
the use intended in the context of Philippine law. In referring to Dr. Esteban's appointments, the term
is not descriptive of the nature of the appointments given to him. Rather, it is used to denote the
manner in which said appointments were made, that is, done by the President of the Pamantasan in
the meantime, while the Board of Regents, which is originally vested by the University Charter with
the power of appointment, is unable to act. 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 be
effective 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 when the 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 to his 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. If respondent'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 even if 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 president herself 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 malice or spite (Government Service and Insurance System v. Ayroso 96 SCRA 213). The general
rule is that the power of appointment must remain unhampered by judicial 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 by petitioner. With his
appointment now settled as permanent., the Civil Service law and the Constitution guarantee private
respondent's security of tenure as 'No officer or employe in the Civil Service shall be suspended or
dismissed except for cause as provided by law" (Section 3, Article XII, the 1973 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 retirement from 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 there are 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 handle a 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 of PLM. He later assigned Esteban
as the VP for Academic Affairs. His appointment is however merely ad interim.
Thereafter, he received notifications of renewal of his term every time his term would
lapse. Until in 1975 when he asked Blanco to appoint him as the permanent VP. Blanco
however refused to appoint him and he assigned Esteban to a lower post instead. Blanco
also said that the Board of Regents was not able to approve his appointment as VP for it
was withdrawn. Esteban file with the CSC and the CSC ruled in favor of him. PLM
appealed to the trial court and the court affirmed the CSC. PLM again appealed to the IAC
and the IAC ruled in favor of Esteban again.
ISSUE: Whether or not Estebans appointment became permanent.
HELD: Esteban had been extended several ad-interim appointments which PLM
mistakenly understands as appointments temporary in nature. 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.
But such is not the meaning nor the use intended in the context of Philippine law. In
referring to Estebans appointments, the term is not descriptive of the nature of the
appointments given to him. Rather, it is used to denote the manner in which said
appointments were made, that is, done by the President of the PLM 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.
Later, in its Resolution 485, the PLM Board of Regents verified Estebans appointment
without condition nor limitation as to tenure. As of that moment, 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 President shall have the power to make appointments during the recess of the
Congress, but such appointments shall be effective only until disapproval by the
Commission on Appointments or until the next adjournment of the Congress. It is an
appointment permanent in nature, and the circumstance that it is subject to confirmation
by the Commission on Appointments does not alter its permanent character. An ad
interim appointment is disapproved certainly for a reason other than that its provisional
period has expired. Said appointment is of course distinguishable from an acting
appointment which is merely temporary, good until another permanent appointment is
issued.

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). Estebans appointment was ad interim
in nature (because at that time the PLM Board of Regents was not in session). His appointment was
extended in 1975. However, he later discovered that his name was not included among those
recommended for permanent appointment. He then requested Blanco to make him a permanent
appointee. Blanco, however, appointed Esteban as Professor III instead and his appointment as VP for
Admin was terminated. Esteban brought the case before the Civil Service Commission where he got a
favorable judgment. The trial court reversed the CSC. The Intermediate Appellate Court reversed the trial
court.
ISSUE: Whether or not Esteban is a permanent appointee.
HELD: Yes. Hence, he enjoys security of tenure. The Supreme Court explains that the term ad interim
as used in the Philippines does not literally translate to temporary. In this jurisdiction an ad
interimappointment is a permanent appointment. This was explained in the landmark case of Summers vs
Ozaeta:
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 appointmentpermanent 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.
In other words, if the Board of Regents is in session, the PLM President merely nominates while the Board
issues the appointment. But when the Board is not in session, the President is authorized to issue ad
interim appointments. Such appointments are permanent but their terms are only until the Board
disapproves them. If confirmed, the appointees term is converted into the regular term inherent in the
position. In the case at bar, apparently, Esteban was confirmed by the Board of Regents in 1975. Blanco
however did not relay this confirmation to Esteban. The latter was made to believe (due to souring
relationship with Blanco) that his appointment was extended but only as an extension of
temporary appointment.

Republic of the Philippines

SUPREME 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 ViceChancellor 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 to be 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 talent for the MSU system as Vice-President for Academic
Affairs which position is under 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 wants to see through.
The respondent President, on May 16, 1990, designated Professor Macacuna Moslem as ViceChancellor 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 the following Special Orders as
amended/corrected are hereby confirmed:
A. DESIGNATIONS
A.1 Major designations
xxx xxx xxx
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 for a considerable time cannot later be heard to say that the
appointment was, in reality, permanent and therefore there can be no removal except for cause.
(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 permanent appointment 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. (Piero v. Hechanova, 18 SCRA 417 [1966]) For the
same reason, the Court may inquire into the true nature of an "acting" appointment to determine
whether or not it is used as a device to circumvent the security of tenure principle.
In this case, the intent to make 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 Officerin-Charge of the Office of the Vice-Chancellor for Academic Affairs concurrently with the permanent
position as Vice-President for External Studies.
About nine months later, the Vice-Presidency for External Studies was "merged" with the ViceChancellorship for Academic Affairs. At the same time, the petitioner was appointed acting ViceChancellor for Academic Affairs.
The effect, therefore, was to abolish the petitioner's permanent office and give 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 must be less than one year.
It must be reported to the Board of Regents at the next regular meeting. After the meeting, another
designation must be issued if no permanent appointment was made. The earlier designation
becomes void as the Board is expected to fill the item permanently, not merely leaving it temporarily
occupied.
On the other hand, the power to appoint is vested in the Board of Regents as follows:
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 employees of 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 VicePresidency for External Studies was abolished and its functions were merged with the ViceChancellorship for Academic Affairs, both the security of tenure of the occupant and the needs of the
new office called for the ad interim appointment.
The respondent cannot use the device of an ambiguous designation to go around the security of
tenure principle. Under the MSU Code, a designation requires a fixed period of not less than one
year. The appointment given to the petitioner was indefinite. She would serve at the pleasure of the
MSU President who is not even the head of the institution because the head is the Board of Regents.
The intent to convert permanent items into temporary ones is apparent. The petitioner states that the
purpose "is to hold the sword of Damocles hanging over the head of all MSU employees and officers."
(Rollo, p. 75) The Board of Regents cooperated in the plan. Practically, all top officers below the
President were converted into positions where the occupants serve at the pleasure of the President
and presumably, the Board of Regents. Thus, at the May 16, 1989 Board of Regents' meeting at the
Army and Navy Club alongside the Luneta in Manila, the following acting appointments were
submitted 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 Batara as 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-inCharge 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:
xxx xxx xxx
Finally, petitioner has not refuted the fact that the position she actually occupies is that
of Professor VI. This is precisely the reason why petitioner's designation as Acting
VCAA can not be deemed a regular or permanent appointment because, if it were so,
the anomalous situation of one permanently appointed to two public positions
simultaneously would arise. (Rollo, p. 130)
This argument has no merit.
As early as 1963, this Court ruled in Tapales v. President and Board of Regents of the University of
the Philippines(7 SCRA 553 [1963]) that UP Deans and Directors enjoy security of tenure and any
attempt to remove them by limiting their terms of office from permanent to a five (5) year term is
unconstitutional. Deans and Directors are selected from faculty members. An appointment as
Professor is also needed for salary rating purposes but does not detract from the permanent nature of
the administrative position (id., at pp. 554 and 556). The fact that Professor Tapales was given
another appointment as Director of the U.P. Conservatory of Music does not mean that the second
appointment is only temporary in nature. In the present case, the fact that Professor Marohombsar
has a permanent appointment as Professor does not detract from the permanent nature of her
present appointment as Vice-Chancellor, especially since the same was duly confirmed by the MSU
Board of Regents. The only difference is that her position as Vice-Chancellor has a fixed term while
that of Professor Tapales was until he retired or resigned.
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 from 1975 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 are transfers which appear to be promotions or lateral movements but are
in truth demotions. There is no showing that the interest of the service would be served if the
proffered appointment would be forced on her.
No less than the Secretary of Education, Culture and Sports, Secretary Isidro D. Cario opined, and
the Court agrees with him, that the petitioner may 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 incharge of the same office was unapproved by the Board, hence, the special order cannot revoke, or

could not have revoked the designation of the petitioner as acting Vice-Chancellor. (Annex A,
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. The respondent
President is, nevertheless, admonished for his action. When this Court 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 Order issued 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 on Elections, respondents.
DECISION
CARPIO, J.:

The Case
Before us is an original Petition for Prohibition with prayer for the issuance of a writ of preliminary
injunction and a temporary restraining order under Rule 65 of the 1997 Rules of Civil Procedure. Petitioner Ma.
J. Angelina G. Matibag (Petitioner for brevity) questions the constitutionality of the appointment and the right
to hold office of the following: (1) Alfredo L. Benipayo (Benipayo for brevity) as Chairman of the
Commission on Elections (COMELEC for brevity); and (2) Resurreccion Z. Borra (Borra for brevity) and
Florentino A. Tuason, Jr. (Tuason for brevity) as COMELEC Commissioners. Petitioner also questions the
legality of the appointment of Velma J. Cinco [1] (Cinco for brevity) as Director IV of the COMELECs
Education and Information Department (EID for brevity).
The Facts

On February 2, 1999, the COMELEC en banc appointed petitioner as Acting Director IV of the EID. On
February 15, 2000, then Chairperson Harriet O. Demetriou renewed the appointment of petitioner as Director
IV of EID in a Temporary capacity. On February 15, 2001, Commissioner Rufino S.B. Javier renewed again
the appointment of petitioner to the same position in a Temporary capacity.[2]
On March 22, 2001, President Gloria Macapagal Arroyo appointed, ad interim, Benipayo as COMELEC
Chairman,[3] and Borra[4] and Tuason[5] as COMELEC Commissioners, each for a term of seven years and all
expiring on February 2, 2008. Benipayo took his oath of office and assumed the position of COMELEC
Chairman. Borra and Tuason likewise took their oaths of office and assumed their positions as COMELEC
Commissioners. The Office of the President submitted to the Commission on Appointments on May 22, 2001
the ad interim appointments of Benipayo, Borra and Tuason for confirmation. [6] However, the Commission on
Appointments did not act on said appointments.
On June 1, 2001, President Arroyo renewed the ad interim appointments of Benipayo, Borra and Tuason to
the same positions and for the same term of seven years, expiring on February 2, 2008. [7]They took their oaths of
office for a second time. The Office of the President transmitted on June 5, 2001 their appointments to the
Commission on Appointments for confirmation.[8]
Congress adjourned before the Commission on Appointments could act on their appointments. Thus, on
June 8, 2001, President Macapagal Arroyo renewed again the ad interim appointments of Benipayo, Borra and
Tuason to the same positions.[9] The Office of the President submitted their appointments for confirmation to the
Commission on Appointments.[10] They took their oaths of office anew.
In his capacity as COMELEC Chairman, Benipayo issued a Memorandum dated April 11,
2001[11] addressed to petitioner as Director IV of the EID and to Cinco as Director III also of the EID,
designating Cinco Officer-in-Charge of the EID and reassigning petitioner to the Law Department. COMELEC
EID Commissioner-in-Charge Mehol K. Sadain objected to petitioners reassignment in a Memorandum dated
April 14, 2001[12] addressed to the COMELEC en banc. Specifically, Commissioner Sadain questioned
Benipayos failure to consult the Commissioner-in-Charge of the EID in the reassignment of petitioner.
On April 16, 2001, petitioner requested Benipayo to reconsider her relief as Director IV of the EID and her
reassignment to the Law Department.[13] Petitioner cited Civil Service Commission Memorandum Circular No. 7
dated April 10, 2001, reminding heads of government offices that transfer and detail of employees are
prohibited during the election period beginning January 2 until June 13, 2001. Benipayo denied her request for
reconsideration on April 18, 2001,[14] citing COMELEC Resolution No. 3300 dated November 6, 2000, which
states in part:

NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred upon it by
the Constitution, the Omnibus Election Code and other election laws, as an exception to the
foregoing prohibitions, has RESOLVED, as it is hereby RESOLVED, to appoint, hire new
employees or fill new positions and transfer or reassign its personnel, when necessary in the
effective performance of its mandated functions during the prohibited period, provided that the
changes in the assignment of its field personnel within the thirty-day period before election day
shall be effected after due notice and hearing.
Petitioner appealed the denial of her request for reconsideration to the COMELEC en banc in a
Memorandum dated April 23, 2001.[15] Petitioner also filed an administrative and criminal complaint [16]with the
Law Department[17] against Benipayo, alleging that her reassignment violated Section 261 (h) of the Omnibus
Election Code, COMELEC Resolution No. 3258, Civil Service Memorandum Circular No. 07, s. 001, and other
pertinent administrative and civil service laws, rules and regulations.
During the pendency of her complaint before the Law Department, petitioner filed the instant petition
questioning the appointment and the right to remain in office of Benipayo, Borra and Tuason, as Chairman and
Commissioners of the COMELEC, respectively. Petitioner claims that the ad interim appointments
of Benipayo, Borra and Tuason violate the constitutional provisions on the independence of the COMELEC, as
well as on the prohibitions on temporary appointments and reappointments of its Chairman and
members. Petitioner also assails as illegal her removal as Director IV of the EID and her reassignment to the
Law Department. Simultaneously, petitioner challenges the designation of Cinco as Officer-in-Charge of the
EID. Petitioner, moreover, questions the legality of the disbursements made by COMELEC Finance Services
Department Officer-in-Charge Gideon C. De Guzman to Benipayo, Borra and Tuason by way of salaries and
other emoluments.
In the meantime, on September 6, 2001, President Macapagal Arroyo renewed once again the ad
interim appointments of Benipayo as COMELEC Chairman and Borra and Tuason as Commissioners,
respectively, for a term of seven years expiring on February 2, 2008.[18] They all took their oaths of office anew.
The Issues

The issues for resolution of this Court are as follows:

1. Whether or not the instant petition satisfies all the requirements before this Court may exercise its power of
judicial review in constitutional cases;
2. Whether or not the assumption of office by Benipayo, Borra and Tuason on the basis of the ad
interim appointments issued by the President amounts to a temporary appointment prohibited by Section 1
(2), Article IX-C of the Constitution;
3. Assuming that the first ad interim appointments and the first assumption of office by Benipayo, Borra and
Tuason are legal, whether or not the renewal of their ad interim appointments and subsequent assumption of
office to the same positions violate the prohibition on reappointment under Section 1 (2), Article IX-C of the
Constitution;
4. Whether or not Benipayos removal of petitioner from her position as Director IV of the EID and her
reassignment to the Law Department is illegal and without authority, having been done without the approval
of the COMELEC as a collegial body;
5. Whether or not the Officer-in-Charge of the COMELECs Finance Services Department, in continuing to
make disbursements in favor of Benipayo, Borra, Tuason and Cinco, is acting in excess of jurisdiction.

First Issue: Propriety of Judicial Review

Respondents assert that the petition fails to satisfy all the four requisites before this Court may exercise its
power of judicial review in constitutional cases. Out of respect for the acts of the Executive department, which
is co-equal with this Court, respondents urge this Court to refrain from reviewing the constitutionality of the ad
interim appointments issued by the President to Benipayo, Borra and Tuason unless all the four requisites are
present. These are: (1) the existence of an actual and appropriate controversy; (2) a personal and substantial
interest of the party raising the constitutional issue; (3) the exercise of the judicial review is pleaded at the
earliest opportunity; and (4) the constitutional issue is the lis mota of the case.[19]
Respondents argue that the second, third and fourth requisites are absent in this case. Respondents
maintain that petitioner does not have a personal and substantial interest in the case because she has not
sustained a direct injury as a result of the ad interim appointments of Benipayo, Borra and Tuason and their
assumption of office. Respondents point out that petitioner does not claim to be lawfully entitled to any of the
positions assumed by Benipayo, Borra or Tuason. Neither does petitioner claim to be directly injured by the
appointments of these three respondents.
Respondents also contend that petitioner failed to question the constitutionality of the ad
interim appointments at the earliest opportunity. Petitioner filed the petition only on August 3, 2001 despite the
fact that the ad interim appointments of Benipayo, Borra and Tuason were issued as early as March 22,
2001. Moreover, the petition was filed after the third time that these three respondents were issuedad
interim appointments.
Respondents insist that the real issue in this case is the legality of petitioners reassignment from the EID to
the Law Department. Consequently, the constitutionality of the ad interim appointments is not the lis mota of
this case.
We are not persuaded.
Benipayo reassigned petitioner from the EID, where she was Acting Director, to the Law Department,
where she was placed on detail service. [20] Respondents claim that the reassignment waspursuant to x x x
Benipayos authority as Chairman of the Commission on Elections, and as the Commissions Chief
Executive Officer.[21] Evidently, respondents anchor the legality of petitioners reassignment on Benipayos
authority as Chairman of the COMELEC. The real issue then turns on whether or not Benipayo is the lawful
Chairman of the COMELEC. Even if petitioner is only an Acting Director of the EID, her reassignment is
without legal basis if Benipayo is not the lawful COMELEC Chairman, an office created by the Constitution.
On the other hand, if Benipayo is the lawful COMELEC Chairman because he assumed office in
accordance with the Constitution, then petitioners reassignment is legal and she has no cause to complain
provided the reassignment is in accordance with the Civil Service Law. Clearly, petitioner has a personal and
material stake in the resolution of the constitutionality of Benipayos assumption of office. Petitioners personal
and substantial injury, if Benipayo is not the lawful COMELEC Chairman, clothes her with the requisite locus
standi to raise the constitutional issue in this petition.
Respondents harp on petitioners belated act of questioning the constitutionality of the ad
interim appointments of Benipayo, Borra and Tuason. Petitioner filed the instant petition only on August 3,
2001, when the first ad interim appointments were issued as early as March 22, 2001. However, it is not the
date of filing of the petition that determines whether the constitutional issue was raised at the earliest
opportunity. The earliest opportunity to raise a constitutional issue is to raise it in the pleadings before a
competent court that can resolve the same, such that, if it is not raised in the pleadings, it cannot be considered
at the trial, and, if not considered at the trial, it cannot be considered on appeal. [22] Petitioner questioned the
constitutionality of the ad interim appointments of Benipayo, Borra and Tuason when she filed her petition

before this Court, which is the earliest opportunity for pleading the constitutional issue before a competent
body. Furthermore, this Court may determine, in the exercise of sound discretion, the time when a
constitutional issue may be passed upon.[23] There is no doubt petitioner raised the constitutional issue on time.
Moreover, the legality of petitioners reassignment hinges on the constitutionality of Benipayos ad
interim appointment and assumption of office. Unless the constitutionality of Benipayos ad
interimappointment and assumption of office is resolved, the legality of petitioners reassignment from the EID
to the Law Department cannot be determined. Clearly, the lis mota of this case is the very constitutional issue
raised by petitioner.
In any event, the issue raised by petitioner is of paramount importance to the public. The legality of the
directives and decisions made by the COMELEC in the conduct of the May 14, 2001 national elections may be
put in doubt if the constitutional issue raised by petitioner is left unresolved. In keeping with this Courts duty
to determine whether other agencies of government have remained within the limits of the Constitution and
have not abused the discretion given them, this Court may even brush aside technicalities of procedure and
resolve any constitutional issue raised.[24] Here the petitioner has complied with all the requisite technicalities.
Moreover, public interest requires the resolution of the constitutional issue raised by petitioner.
Second Issue: The Nature of an Ad Interim Appointment
Petitioner argues that an ad interim appointment to the COMELEC is a temporary appointment that is
prohibited by Section 1 (2), Article IX-C of the Constitution, which provides as follows:

The Chairman and the Commissioners shall be appointed by the President with the consent of the
Commission on Appointments for a term of seven years without reappointment. Of those first
appointed, three Members shall hold office for seven years, two Members for five years, and the
last Members for three years, without reappointment. Appointment to any vacancy shall be only
for the unexpired term of the predecessor. In no case shall any Member be appointed or
designated in a temporary or acting capacity. (Emphasis supplied)
Petitioner posits the view that an ad interim appointment can be withdrawn or revoked by the President at her
pleasure, and can even be disapproved or simply by-passed by the Commission on Appointments. For this
reason, petitioner claims that an ad interim appointment is temporary in character and consequently prohibited
by the last sentence of Section 1 (2), Article IX-C of the Constitution.
Based on petitioners theory, there can be no ad interim appointment to the COMELEC or to the other two
constitutional commissions, namely the Civil Service Commission and the Commission on Audit. The last
sentence of Section 1 (2), Article IX-C of the Constitution is also found in Article IX-B and Article IX-D
providing for the creation of the Civil Service Commission and the Commission on Audit,
respectively. Petitioner interprets the last sentence of Section 1 (2) of Article IX-C to mean that the ad
interim appointee cannot assume office until his appointment is confirmed by the Commission on Appointments
for only then does his appointment become permanent and no longer temporary in character.
The rationale behind petitioners theory is that only an appointee who is confirmed by the Commission on
Appointments can guarantee the independence of the COMELEC. A confirmed appointee is beyond the
influence of the President or members of the Commission on Appointments since his appointment can no longer
be recalled or disapproved. Prior to his confirmation, the appointee is at the mercy of both the appointing and
confirming powers since his appointment can be terminated at any time for any cause. In the words of
petitioner, a Sword of Damocles hangs over the head of every appointee whose confirmation is pending with the
Commission on Appointments.
We find petitioners argument without merit.
An ad interim appointment is a permanent appointment because it takes effect immediately and can no
longer be withdrawn by the President once the appointee has qualified into office. The fact that it is subject to
confirmation by the Commission on Appointments does not alter its permanent character. The Constitution
itself makes an ad interim appointment permanent in character by making it effective until disapproved by the
Commission on Appointments or until the next adjournment of Congress. The second paragraph of Section 16,
Article VII of the Constitution provides as follows:

The President shall have the power to make appointments during the recess of the Congress,
whether voluntary or compulsory, but such appointments shall be effective only until disapproval
by the Commission on Appointments or until the next adjournment of the Congress. (Emphasis
supplied)

Thus, the ad interim appointment remains effective until such disapproval or next adjournment, signifying that
it can no longer be withdrawn or revoked by the President. The fear that the President can withdraw or revoke
at any time and for any reason an ad interim appointment is utterly without basis.
More than half a century ago, this Court had already ruled that an ad interim appointment is permanent in
character. In Summers vs. Ozaeta,[25] decided on October 25, 1948, we held that:

x x x an ad interim appointment is one made in pursuance of paragraph (4), Section 10, Article
VII of the Constitution, which provides that the President shall have the power to make
appointments during the recess of the Congress, but such appointments shall be effective only until
disapproval by the Commission on Appointments or until the next adjournment of the
Congress. It is an appointment permanent in nature, and the circumstance that it is subject to
confirmation by the Commission on Appointments does not alter its permanent character. An ad
interim appointment is disapproved certainly for a reason other than that its provisional period has
expired. Said appointment is of course distinguishable from an acting appointment which is
merely temporary, good until another permanent appointment is issued. (Emphasis supplied)
The Constitution imposes no condition on the effectivity of an ad interim appointment, and thus an ad
interim appointment takes effect immediately. The appointee can at once assume office and exercise, as a de
jure officer, all the powers pertaining to the office. In Pacete vs. Secretary of the Commission on Appointments,
[26]
this Court elaborated on the nature of an ad interim appointment as follows:

A distinction is thus made between the exercise of such presidential prerogative requiring
confirmation by the Commission on Appointments when Congress is in session and when it is in
recess. In the former, the President nominates, and only upon the consent of the Commission on
Appointments may the person thus named assume office. It is not so with reference to ad interim
appointments. It takes effect at once. The individual chosen may thus qualify and perform his
function without loss of time. His title to such office is complete. In the language of the
Constitution, the appointment is effective until disapproval by the Commission on Appointments
or until the next adjournment of the Congress.
Petitioner cites Blacks Law Dictionary which defines the term ad interim to mean in the meantime or
for the time being. Hence, petitioner argues that an ad interim appointment is undoubtedly temporary in
character. This argument is not new and was answered by this Court in Pamantasan ng Lungsod ng Maynila vs.
Intermediate Appellate Court,[27] where we explained that:

x x x From the arguments, it is easy to see why the petitioner should experience difficulty in
understanding the situation. Private respondent had been extended several ad interim
appointments which petitioner mistakenly understands as appointments temporary in
nature. Perhaps, it is the literal translation of the word ad interim which creates such belief. The
term is defined by Black to mean in the meantime or for the time being. Thus, an officer ad
interim is one appointed to fill a vacancy, or to discharge the duties of the office during the absence
or temporary incapacity of its regular incumbent (Blacks Law Dictionary, Revised Fourth Edition,
1978). But such is not the meaning nor the use intended in the context of Philippine law. In
referring to Dr. Estebans appointments, the term is not descriptive of the nature of the
appointments given to him. Rather, it is used to denote the manner in which said appointments
were made, that is, done by the President of the Pamantasan in the meantime, while the Board of
Regents, which is originally vested by the University Charter with the power of appointment, is
unable to act. x x x. (Emphasis supplied)
Thus, the term ad interim appointment, as used in letters of appointment signed by the President, means a
permanent appointment made by the President in the meantime that Congress is in recess. It does not mean a
temporary appointment that can be withdrawn or revoked at any time. The term, although not found in the text
of the Constitution, has acquired a definite legal meaning under Philippine jurisprudence. The Court had again
occasion to explain the nature of an ad interim appointment in the more recent case of Marohombsar vs. Court
of Appeals,[28] where the Court stated:

We have already mentioned that an ad interim appointment is not descriptive of the nature of the
appointment, that is, it is not indicative of whether the appointment is temporary or in an acting
capacity, rather it denotes the manner in which the appointment was made. In the instant case, the
appointment extended to private respondent by then MSU President Alonto, Jr. was issued without
condition nor limitation as to tenure. The permanent status of private respondents appointment as
Executive Assistant II was recognized and attested to by the Civil Service Commission Regional

Office No. 12. Petitioners submission that private respondents ad interim appointment is
synonymous with a temporary appointment which could be validly terminated at any time is
clearly untenable. Ad interim appointments are permanent but their terms are only until the
Board disapproves them. (Emphasis supplied)
An ad interim appointee who has qualified and assumed office becomes at that moment a government
employee and therefore part of the civil service. He enjoys the constitutional protection that [n]o officer or
employee in the civil service shall be removed or suspended except for cause provided by law. [29] Thus, an ad
interim appointment becomes complete and irrevocable once the appointee has qualified into office. The
withdrawal or revocation of an ad interim appointment is possible only if it is communicated to the appointee
before the moment he qualifies, and any withdrawal or revocation thereafter is tantamount to removal from
office.[30] Once an appointee has qualified, he acquires a legal right to the office which is protected not only by
statute but also by the Constitution. He can only be removed for cause, after notice and hearing, consistent with
the requirements of due process.
An ad interim appointment can be terminated for two causes specified in the Constitution. The first cause is
the disapproval of his ad interim appointment by the Commission on Appointments. The second cause is the
adjournment of Congress without the Commission on Appointments acting on his appointment. These two
causes are resolutory conditions expressly imposed by the Constitution on all ad interim appointments. These
resolutory conditions constitute, in effect, a Sword of Damocles over the heads of ad interim appointees. No
one, however, can complain because it is the Constitution itself that places the Sword of Damocles over the
heads of the ad interim appointees.
While an ad interim appointment is permanent and irrevocable except as provided by law, an appointment
or designation in a temporary or acting capacity can be withdrawn or revoked at the pleasure of the appointing
power.[31] A temporary or acting appointee does not enjoy any security of tenure, no matter how briefly. This is
the kind of appointment that the Constitution prohibits the President from making to the three independent
constitutional commissions, including the COMELEC. Thus, in Brillantes vs. Yorac,[32] this Court struck down
as unconstitutional the designation by then President Corazon Aquino of Associate Commissioner Haydee
Yorac as Acting Chairperson of the COMELEC. This Court ruled that:

A designation as Acting Chairman is by its very terms essentially temporary and therefore
revocable at will. No cause need be established to justify its revocation. Assuming its
validity, the designation of the respondent as Acting Chairman of the Commission on
Elections may be withdrawn by the President of the Philippines at any time and for
whatever reason she sees fit. It is doubtful if the respondent, having accepted such
designation, will not be estopped from challenging its withdrawal.
xxx

The Constitution provides for many safeguards to the independence of the Commission on
Elections, foremost among which is the security of tenure of its members. That guarantee
is not available to the respondent as Acting Chairman of the Commission on Elections by
designation of the President of the Philippines.
Earlier, in Nacionalista Party vs. Bautista,[33] a case decided under the 1935 Constitution, which did not
have a provision prohibiting temporary or acting appointments to the COMELEC, this Court nevertheless
declared unconstitutional the designation of the Solicitor General as acting member of the COMELEC. This
Court ruled that the designation of an acting Commissioner would undermine the independence of the
COMELEC and hence violate the Constitution. We declared then: It would be more in keeping with the intent,
purpose and aim of the framers of the Constitution to appoint apermanent Commissioner than to designate one
to act temporarily. (Emphasis supplied)
In the instant case, the President did in fact appoint permanent Commissioners to fill the vacancies in the
COMELEC, subject only to confirmation by the Commission on Appointments. Benipayo, Borra and Tuason
were extended permanent appointments during the recess of Congress. They were not appointed or designated
in a temporary or acting capacity, unlike Commissioner Haydee Yorac inBrillantes vs. Yorac[34] and Solicitor
General Felix Bautista in Nacionalista Party vs. Bautista.[35] The ad interim appointments of Benipayo, Borra
and Tuason are expressly allowed by the Constitution which authorizes the President, during the recess of
Congress, to make appointments that take effect immediately.
While the Constitution mandates that the COMELEC shall be independent [36], this provision should be
harmonized with the Presidents power to extend ad interim appointments. To hold that the independence of the
COMELEC requires the Commission on Appointments to first confirm ad interim appointees before the
appointees can assume office will negate the Presidents power to make ad interim appointments. This is
contrary to the rule on statutory construction to give meaning and effect to every provision of the law. It will
also run counter to the clear intent of the framers of the Constitution.

The original draft of Section 16, Article VII of the Constitution - on the nomination of officers subject to
confirmation by the Commission on Appointments - did not provide for ad interim appointments. The original
intention of the framers of the Constitution was to do away with ad interim appointments because the plan was
for Congress to remain in session throughout the year except for a brief 30-day compulsory recess. However,
because of the need to avoid disruptions in essential government services, the framers of the Constitution
thought it wise to reinstate the provisions of the 1935 Constitution onad interim appointments. The following
discussion during the deliberations of the Constitutional Commission elucidates this:

FR. BERNAS: X x x our compulsory recess now is only 30 days. So under such circumstances, is
it necessary to provide for ad interim appointments? Perhaps there should be a little discussion on
that.
xxx

MS. AQUINO: My concern is that unless this problem is addressed, this might present problems
in terms of anticipating interruption of government business, considering that we are not certain
of the length of involuntary recess or adjournment of the Congress. We are certain, however, of the
involuntary adjournment of the Congress which is 30 days, but we cannot leave to conjecture the
matter of involuntary recess.
FR. BERNAS: That is correct, but we are trying to look for a formula. I wonder if the
Commissioner has a formula x x x.
xxx

MR. BENGZON: Madam President, apropos of the matter raised by Commissioner Aquino and
after conferring with the Committee, Commissioner Aquino and I propose the following
amendment as the last paragraph of Section 16, the wordings of which are in the 1935
Constitution: THE PRESIDENT SHALL HAVE THE POWER TO MAKE APPOINTMENTS
DURING THE RECESS OF CONGRESS WHETHER IT BE VOLUNTARY OR COMPULSORY
BUT SUCH APPOINTMENTS SHALL BE EFFECTIVE ONLY UNTIL DISAPPROVAL BY
THE COMMISSION ON APPOINTMENTS OR UNTIL THE NEXT ADJOURNMENT OF THE
CONGRESS.
This is otherwise called the ad interim appointments.
xxx

THE PRESIDENT: Is there any objection to the proposed amendment of Commissioners Aquino
and Bengzon, adding a paragraph to the last paragraph of Section 16? (Silence) The Chair hears
none; the amendment is approved.[37] (Emphasis supplied)
Clearly, the reinstatement in the present Constitution of the ad interim appointing power of the President
was for the purpose of avoiding interruptions in vital government services that otherwise would result from
prolonged vacancies in government offices, including the three constitutional commissions. In his concurring
opinion in Guevara vs. Inocentes,[38] decided under the 1935 Constitution, Justice Roberto Concepcion, Jr.
explained the rationale behind ad interim appointments in this manner:

Now, why is the lifetime of ad interim appointments so limited? Because, if they expired before
the session of Congress, the evil sought to be avoided interruption in the discharge of essential
functions may take place. Because the same evil would result if the appointments ceased to be
effective during the session of Congress and before its adjournment. Upon the other hand, once
Congress has adjourned, the evil aforementioned may easily be conjured by the issuance of
other ad interim appointments or reappointments. (Emphasis supplied)
Indeed, the timely application of the last sentence of Section 16, Article VII of the Constitution barely
avoided the interruption of essential government services in the May 2001 national elections. Following the
decision of this Court in Gaminde vs. Commission on Appointments,[39] promulgated on December 13, 2000, the
terms of office of constitutional officers first appointed under the Constitution would have to be counted starting
February 2, 1987, the date of ratification of the Constitution, regardless of the date of their actual
appointment. By this reckoning, the terms of office of three Commissioners of the COMELEC, including the
Chairman, would end on February 2, 2001.[40]

Then COMELEC Chairperson Harriet O. Demetriou was appointed only on January 11, 2000 to serve,
pursuant to her appointment papers, until February 15, 2002, [41] the original expiry date of the term of her
predecessor, Justice Bernardo P. Pardo, who was elevated to this Court. The original expiry date of the term of
Commissioner Teresita Dy-Liacco Flores was also February 15, 2002, while that of Commissioner Julio F.
Desamito was November 3, 2001.[42] The original expiry dates of the terms of office of Chairperson Demetriou
and Commissioners Flores and Desamito were therefore supposed to fall after the May 2001
elections. Suddenly and unexpectedly, because of the Gaminde ruling, there were three vacancies in the sevenperson COMELEC, with national elections looming less than three and one-half months away. To their credit,
Chairperson Demetriou and Commissioner Flores vacated their offices on February 2, 2001 and did not
question any more before this Court the applicability of theGaminde ruling to their own situation.
In a Manifestation[43] dated December 28, 2000 filed with this Court in the Gaminde case, Chairperson
Demetriou stated that she was vacating her office on February 2, 2001, as she believed any delay in choosing
her successor might create a constitutional crisis in view of the proximity of the May 2001 national
elections. Commissioner Desamito chose to file a petition for intervention [44] in the Gamindecase but this Court
denied the intervention. Thus, Commissioner Desamito also vacated his office on February 2, 2001.
During an election year, Congress normally goes on voluntary recess between February and June
considering that many of the members of the House of Representatives and the Senate run for re-election. In
2001, the Eleventh Congress adjourned from January 9, 2001 to June 3, 2001. [45] Concededly, there was no more
time for Benipayo, Borra and Tuason, who were originally extended ad interim appointments only on March 22,
2001, to be confirmed by the Commission on Appointments before the May 14, 2001 elections.
If Benipayo, Borra and Tuason were not extended ad interim appointments to fill up the three vacancies in
the COMELEC, there would only have been one division functioning in the COMELEC instead of two during
the May 2001 elections. Considering that the Constitution requires that all x x x election cases shall be heard
and decided in division,[46] the remaining one division would have been swamped with election
cases. Moreover, since under the Constitution motions for reconsideration shall be decided by the
Commission en banc, the mere absence of one of the four remaining members would have prevented a
quorum, a less than ideal situation considering that the Commissioners are expected to travel around the country
before, during and after the elections. There was a great probability that disruptions in the conduct of the May
2001 elections could occur because of the three vacancies in the COMELEC. The successful conduct of the
May 2001 national elections, right after the tumultuous EDSA II and EDSA III events, was certainly essential in
safeguarding and strengthening our democracy.
Evidently, the exercise by the President in the instant case of her constitutional power to make ad
interim appointments prevented the occurrence of the very evil sought to be avoided by the second paragraph of
Section 16, Article VII of the Constitution. This power to make ad interim appointments is lodged in the
President to be exercised by her in her sound judgment. Under the second paragraph of Section 16, Article VII
of the Constitution, the President can choose either of two modes in appointing officials who are subject to
confirmation by the Commission on Appointments. First, while Congress is in session, the President may
nominate the prospective appointee, and pending consent of the Commission on Appointments, the nominee
cannot qualify and assume office. Second, during the recess of Congress, the President may extend an ad
interim appointment which allows the appointee to immediately qualify and assume office.
Whether the President chooses to nominate the prospective appointee or extend an ad interim appointment
is a matter within the prerogative of the President because the Constitution grants her that power. This Court
cannot inquire into the propriety of the choice made by the President in the exercise of her constitutional power,
absent grave abuse of discretion amounting to lack or excess of jurisdiction on her part, which has not been
shown in the instant case.
The issuance by Presidents of ad interim appointments to the COMELEC is a long-standing
practice. Former President Corazon Aquino issued an ad interim appointment to Commissioner Alfredo E.
Abueg.[47] Former President Fidel V. Ramos extended ad interim appointments to Commissioners Julio F.
Desamito, Japal M. Guiani, Graduacion A. Reyes-Claravall and Manolo F. Gorospe. [48] Former President Joseph
Estrada also extended ad interim appointments to Commissioners Abdul Gani M. Marohombsar, Luzviminda
Tancangco, Mehol K. Sadain and Ralph C. Lantion.[49]
The Presidents power to extend ad interim appointments may indeed briefly put the appointee at the mercy
of both the appointing and confirming powers. This situation, however, is only for a short period - from the
time of issuance of the ad interim appointment until the Commission on Appointments gives or withholds its
consent. The Constitution itself sanctions this situation, as a trade-off against the evil of disruptions in vital
government services. This is also part of the check-and-balance under the separation of powers, as a trade-off
against the evil of granting the President absolute and sole power to appoint. The Constitution has wisely
subjected the Presidents appointing power to the checking power of the legislature.
This situation, however, does not compromise the independence of the COMELEC as a constitutional body.
The vacancies in the COMELEC are precisely staggered to insure that the majority of its members hold
confirmed appointments, and not one President will appoint all the COMELEC members. [50] In the instant case,
the Commission on Appointments had long confirmed four [51] of the incumbent COMELEC members,
comprising a majority, who could now be removed from office only by impeachment. The special

constitutional safeguards that insure the independence of the COMELEC remain in place. [52] The COMELEC
enjoys fiscal autonomy, appoints its own officials and employees, and promulgates its own rules on pleadings
and practice. Moreover, the salaries of COMELEC members cannot be decreased during their tenure.
In fine, we rule that the ad interim appointments extended by the President to Benipayo, Borra and Tuason,
as COMELEC Chairman and Commissioners, respectively, do not constitute temporary or acting appointments
prohibited by Section 1 (2), Article IX-C of the Constitution.
Third Issue: The Constitutionality of Renewals of Appointments
Petitioner also agues that assuming the first ad interim appointments and the first assumption of office by
Benipayo, Borra and Tuason are constitutional, the renewal of the their ad interim appointments and their
subsequent assumption of office to the same positions violate the prohibition on reappointment under Section 1
(2), Article IX-C of the Constitution, which provides as follows:

The Chairman and the Commissioners shall be appointed by the President with the consent of the
Commission on Appointments for a term of seven years without reappointment. Of those first
appointed, three Members shall hold office for seven years, two Members for five years, and the
last members for three years, without reappointment. X x x. (Emphasis supplied)
Petitioner theorizes that once an ad interim appointee is by-passed by the Commission on Appointments, his ad
interim appointment can no longer be renewed because this will violate Section 1 (2), Article IX-C of the
Constitution which prohibits reappointments. Petitioner asserts that this is particularly true to permanent
appointees who have assumed office, which is the situation of Benipayo, Borra and Tuason if their ad
interim appointments are deemed permanent in character.
There is no dispute that an ad interim appointee disapproved by the Commission on Appointments can no
longer be extended a new appointment. The disapproval is a final decision of the Commission on Appointments
in the exercise of its checking power on the appointing authority of the President. The disapproval is a decision
on the merits, being a refusal by the Commission on Appointments to give its consent after deliberating on the
qualifications of the appointee. Since the Constitution does not provide for any appeal from such decision, the
disapproval is final and binding on the appointee as well as on the appointing power. In this instance, the
President can no longer renew the appointment not because of the constitutional prohibition on reappointment,
but because of a final decision by the Commission on Appointments to withhold its consent to the appointment.
An ad interim appointment that is by-passed because of lack of time or failure of the Commission on
Appointments to organize is another matter. A by-passed appointment is one that has not been finally acted
upon on the merits by the Commission on Appointments at the close of the session of Congress. There is no
final decision by the Commission on Appointments to give or withhold its consent to the appointment as
required by the Constitution. Absent such decision, the President is free to renew the ad interim appointment of
a by-passed appointee. This is recognized in Section 17 of the Rules of the Commission on Appointments,
which provides as follows:

Section 17. Unacted Nominations or Appointments Returned to the President. Nominations or

appointments submitted by the President of the Philippines which are not finally acted upon at the
close of the session of Congress shall be returned to the President and, unless new nominations or
appointments are made, shall not again be considered by the Commission. (Emphasis supplied)
Hence, under the Rules of the Commission on Appointments, a by-passed appointment can be considered again
if the President renews the appointment.
It is well settled in this jurisdiction that the President can renew the ad interim appointments of by-passed
appointees. Justice Roberto Concepcion, Jr. lucidly explained in his concurring opinion inGuevara vs.
Inocentes[53] why by-passed ad interim appointees could be extended new appointments, thus:

In short, an ad interim appointment ceases to be effective upon disapproval by the Commission,

because the incumbent can not continue holding office over the positive objection of the
Commission. It ceases, also, upon the next adjournment of the Congress, simply because the
President may then issue new appointments - not because of implied disapproval of the
Commission deduced from its inaction during the session of Congress, for, under the Constitution,
the Commission may affect adversely the interim appointments only by action, never by
omission. If the adjournment of Congress were an implied disapproval of ad interim appointments
made prior thereto, then the President could no longer appoint those so by-passed by the
Commission. But, the fact is that the President may reappoint them, thus clearly indicating that
the reason for said termination of the ad interim appointments is not the disapproval thereof

allegedly inferred from said omission of the Commission, but the circumstance that upon said
adjournment of the Congress, the President is free to make ad interim appointments or
reappointments. (Emphasis supplied)
Guevara was decided under the 1935 Constitution from where the second paragraph of Section 16, Article VII
of the present Constitution on ad interim appointments was lifted verbatim.[54] The jurisprudence under the 1935
Constitution governing ad interim appointments by the President is doubtless applicable to the present
Constitution. The established practice under the present Constitution is that the President can renew the
appointments of by-passed ad interim appointees. This is a continuation of the well-recognized practice under
the 1935 Constitution, interrupted only by the 1973 Constitution which did not provide for a Commission on
Appointments but vested sole appointing power in the President.
The prohibition on reappointment in Section 1 (2), Article IX-C of the Constitution applies neither to
disapproved nor by-passed ad interim appointments. A disapproved ad interim appointment cannot be revived
by another ad interim appointment because the disapproval is final under Section 16, Article VII of the
Constitution, and not because a reappointment is prohibited under Section 1 (2), Article IX-C of the
Constitution. A by-passed ad interim appointment can be revived by a new ad interim appointment because
there is no final disapproval under Section 16, Article VII of the Constitution, and such new appointment will
not result in the appointee serving beyond the fixed term of seven years.
Section 1 (2), Article IX-C of the Constitution provides that [t]he Chairman and the Commissioners shall
be appointed x x x for a term of seven years without reappointment. (Emphasis supplied) There are four
situations where this provision will apply. The first situation is where an ad interim appointee to the
COMELEC, after confirmation by the Commission on Appointments, serves his full seven-year term. Such
person cannot be reappointed to the COMELEC, whether as a member or as a chairman, because he will then be
actually serving more than seven years. The second situation is where the appointee, after confirmation, serves
a part of his term and then resigns before his seven-year term of office ends. Such person cannot be
reappointed, whether as a member or as a chair, to a vacancy arising from retirement because a reappointment
will result in the appointee also serving more than seven years. The third situation is where the appointee is
confirmed to serve the unexpired term of someone who died or resigned, and the appointee completes the
unexpired term. Such person cannot be reappointed, whether as a member or chair, to a vacancy arising from
retirement because a reappointment will result in the appointee also serving more than seven years.
The fourth situation is where the appointee has previously served a term of less than seven years, and a
vacancy arises from death or resignation. Even if it will not result in his serving more than seven years, a
reappointment of such person to serve an unexpired term is also prohibited because his situation will be similar
to those appointed under the second sentence of Section 1 (2), Article IX-C of the Constitution. This provision
refers to the first appointees under the Constitution whose terms of office are less than seven years, but are
barred from ever being reappointed under any situation. Not one of these four situations applies to the case of
Benipayo, Borra or Tuason.
The framers of the Constitution made it quite clear that any person who has served any term of office as
COMELEC member whether for a full term of seven years, a truncated term of five or three years, or
even for an unexpired term of any length of time can no longer be reappointed to the
COMELEC. Commissioner Foz succinctly explained this intent in this manner:

MR. FOZ. But there is the argument made in the concurring opinion of Justice Angelo
Bautista in the case of Visarra vs. Miraflor, to the effect that the prohibition on
reappointment applies only when the term or tenure is for seven years. But in cases where
the appointee serves only for less than seven years, he would be entitled to
reappointment. Unless we put the qualifying words without reappointment in the case
of those appointed, then it is possible that an interpretation could be made later on their
case, they can still be reappointed to serve for a total of seven years.
Precisely, we are foreclosing that possibility by making it clear that even in the case of
those first appointed under the Constitution, no reappointment can be
made.[55] (Emphasis supplied)
In Visarra vs. Miraflor,[56] Justice Angelo Bautista, in his concurring opinion, quoted Nacionalista vs. De
Vera[57] that a [r]eappointment is not prohibited when a Commissioner has held office only for, say, three or six
years, provided his term will not exceed nine years in all. This was the interpretation despite the express
provision in the 1935 Constitution that a COMELEC member shall hold office for a term of nine years and
may not be reappointed.
To foreclose this interpretation, the phrase without reappointment appears twice in Section 1 (2), Article
IX-C of the present Constitution. The first phrase prohibits reappointment of any person previously appointed
for a term of seven years. The second phrase prohibits reappointment of any person previously appointed for a
term of five or three years pursuant to the first set of appointees under the Constitution. In either case, it does

not matter if the person previously appointed completes his term of office for the intention is to prohibit any
reappointment of any kind.
However, an ad interim appointment that has lapsed by inaction of the Commission on Appointments does
not constitute a term of office. The period from the time the ad interim appointment is made to the time it lapses
is neither a fixed term nor an unexpired term. To hold otherwise would mean that the President by his unilateral
action could start and complete the running of a term of office in the COMELEC without the consent of the
Commission on Appointments. This interpretation renders inutile the confirming power of the Commission on
Appointments.
The phrase without reappointment applies only to one who has been appointed by the President and
confirmed by the Commission on Appointments, whether or not such person completes his term of
office. There must be a confirmation by the Commission on Appointments of the previous appointment before
the prohibition on reappointment can apply. To hold otherwise will lead to absurdities and negate the
Presidents power to make ad interim appointments.
In the great majority of cases, the Commission on Appointments usually fails to act, for lack of time, on
the ad interim appointments first issued to appointees. If such ad interim appointments can no longer be
renewed, the President will certainly hesitate to make ad interim appointments because most of her appointees
will effectively be disapproved by mere inaction of the Commission on Appointments. This will nullify the
constitutional power of the President to make ad interim appointments, a power intended to avoid disruptions in
vital government services. This Court cannot subscribe to a proposition that will wreak havoc on vital
government services.
The prohibition on reappointment is common to the three constitutional commissions. The framers of the
present Constitution prohibited reappointments for two reasons. The first is to prevent a second appointment for
those who have been previously appointed and confirmed even if they served for less than seven years. The
second is to insure that the members of the three constitutional commissions do not serve beyond the fixed term
of seven years. As reported in the Journal of the Constitutional Commission, Commissioner Vicente B. Foz,
who sponsored[58]the proposed articles on the three constitutional commissions, outlined the four important
features of the proposed articles, to wit:

Mr. Foz stated that the Committee had introduced basic changes in the common provision
affecting the three Constitutional Commissions, and which are: 1) fiscal autonomy which
provides (that) appropriations shall be automatically and regularly released to the
Commission in the same manner (as) provided for the Judiciary; 2) fixed term of office
without reappointment on a staggered basis to ensure continuity of functions and to
minimize the opportunity of the President to appoint all the members during his
incumbency; 3) prohibition to decrease salaries of the members of the Commissions during
their term of office; and 4) appointments of members would not require
confirmation.[59] (Emphasis supplied)
There were two important amendments subsequently made by the Constitutional Commission to these four
features. First, as discussed earlier, the framers of the Constitution decided to require confirmation by the
Commission on Appointments of all appointments to the constitutional commissions. Second, the framers
decided to strengthen further the prohibition on serving beyond the fixed seven-year term, in the light of a
former chair of the Commission on Audit remaining in office for 12 years despite his fixed term of seven
years. The following exchange in the deliberations of the Constitutional Commission is instructive:

MR. SUAREZ: These are only clarificatory questions, Madam President. May I call the
sponsors 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 Committees proposed resolutions a constitutional hangover, if I may use the
term, from the past administration. Am I correct in concluding that the reason the
Committee introduced this particular provision is to avoid an incident similar to the case of
the Honorable Francisco Tantuico who was appointed in an acting capacity as Chairman of
the Commission on Audit for about 5 years from 1975 until 1980, and then in 1980, was
appointed as Chairman with a tenure of another 7 years. So, if we follow that appointment
to (its) logical conclusion, he occupied that position for about 12 years in violation of the
Constitution?
MR. FOZ: It is only one of the considerations. Another is really to make sure that any
member who is appointed to any of the commissions does not serve beyond 7 years.[60]
(Emphasis supplied)
Commissioner Christian Monsod further clarified the prohibition on reappointment in this manner:

"MR. MONSOD. If the (Commissioner) will read the whole Article, she will notice
that there is no reappointment of any kind and, therefore as a whole there is no way that
somebody can serve for more than seven years. The purpose of the last sentence is to make
sure that this does not happen by including in the appointment both temporary and
acting capacities."[61](Emphasis supplied)
Plainly, the prohibition on reappointment is intended to insure that there will be no reappointment of any
kind. On the other hand, the prohibition on temporary or acting appointments is intended to prevent any
circumvention of the prohibition on reappointment that may result in an appointees total term of office
exceeding seven years. The evils sought to be avoided by the twin prohibitions are very specific - reappointment
of any kind and exceeding ones term in office beyond the maximum period of seven years.
Not contented with these ironclad twin prohibitions, the framers of the Constitution tightened even further
the screws on those who might wish to extend their terms of office. Thus, the word designated was inserted
to plug any loophole that might be exploited by violators of the Constitution, as shown in the following
discussion in the Constitutional Commission:

MR. DE LOS REYES: On line 32, between the words appointed and in, I propose to insert
the words OR DESIGNATED so that the whole sentence will read: In no case shall any Member
be appointed OR DESIGNATED in a temporary or acting capacity.
THE PRESIDING OFFICER (Mr. Trenas): What does the Committee say?
MR. FOZ: But it changes the meaning of this sentence. The sentence reads: In no case shall any
Member be appointed in a temporary or acting capacity.
MR. DE LOS REYES: Mr. Presiding Officer, the reason for this amendment is that some lawyers
make a distinction between an appointment and a designation. The Gentleman will recall that in
the case of Commissioner on Audit Tantuico, I think his term exceeded the constitutional limit but
the Minister of Justice opined that it did not because he was only designated during the time that he
acted as Commissioner on Audit. So, in order to erase that distinction between appointment and
designation, we should specifically place the word so that there will be no more ambiguity. In no
case shall any Member be appointed OR DESIGNATED in a temporary or acting capacity.
MR. FOZ: The amendment is accepted, Mr. Presiding Officer.
MR. DE LOS REYES: Thank you.
THE PRESIDING OFFICER (Mr. Trenas): Is there any objection? (Silence) The Chair hears
none; the amendment is approved.[62]
The ad interim appointments and subsequent renewals of appointments of Benipayo, Borra and Tuason do
not violate the prohibition on reappointments because there were no previous appointments that were confirmed
by the Commission on Appointments. A reappointment presupposes a previous confirmed appointment. The
same ad interim appointments and renewals of appointments will also not breach the seven-year term limit
because all the appointments and renewals of appointments of Benipayo, Borra and Tuason are for a fixed
term expiring on February 2, 2008.[63] Any delay in their confirmation will not extend the expiry date of their
terms of office. Consequently, there is no danger whatsoever that the renewal of the ad interim appointments of
these three respondents will result in any of the evils intended to be exorcised by the twin prohibitions in the
Constitution. The continuing renewal of the ad interim appointment of these three respondents, for so long as
their terms of office expire on February 2, 2008, does not violate the prohibition on reappointments in Section 1
(2), Article IX-C of the Constitution.
Fourth Issue: Respondent Benipayos Authority to Reassign Petitioner
Petitioner claims that Benipayo has no authority to remove her as Director IV of the EID and reassign her
to the Law Department. Petitioner further argues that only the COMELEC, acting as a collegial body, can
authorize such reassignment. Moreover, petitioner maintains that a reassignment without her consent amounts
to removal from office without due process and therefore illegal.
Petitioners posturing will hold water if Benipayo does not possess any color of title to the office of
Chairman of the COMELEC. We have ruled, however, that Benipayo is the de jure COMELEC Chairman, and
consequently he has full authority to exercise all the powers of that office for so long as his ad

interim appointment remains effective. Under Section 7 (4), Chapter 2, Subtitle C, Book V of the Revised
Administrative Code, the Chairman of the COMELEC is vested with the following power:

Section 7. Chairman as Executive Officer; Powers and Duties. The Chairman, who shall be the
Chief Executive Officer of the Commission, shall:
xxx

(4) Make temporary assignments, rotate and transfer personnel in accordance with the provisions
of the Civil Service Law. (Emphasis supplied)
The Chairman, as the Chief Executive of the COMELEC, is expressly empowered on his own authority to
transfer or reassign COMELEC personnel in accordance with the Civil Service Law. In the exercise of this
power, the Chairman is not required by law to secure the approval of the COMELEC en banc.
Petitioners appointment papers dated February 2, 1999, February 15, 2000 and February 15, 2001,
attached as Annexes X, Y and Z to her Petition, indisputably show that she held her Director IV position
in the EID only in an acting or temporary capacity.[64] Petitioner is not a Career Executive Service (CES) officer,
and neither does she hold Career Executive Service Eligibility, which are necessary qualifications for holding
the position of Director IV as prescribed in the Qualifications Standards (Revised 1987) issued by the Civil
Service Commission.[65] Obviously, petitioner does not enjoy security of tenure as Director IV. In Secretary of
Justice Serafin Cuevas vs. Atty. Josefina G. Bacal,[66] this Court held that:

As respondent does not have the rank appropriate for the position of Chief Public Attorney, her
appointment to that position cannot be considered permanent, and she can claim no security of
tenure in respect of that position. As held in Achacoso v. Macaraig:
It is settled that a permanent appointment can be issued only to a person who meets all the
requirements for the position to which he is being appointed, including the appropriate eligibility
prescribed. Achacoso did not. At best, therefore, his appointment could be regarded only as
temporary. And being so, it could be withdrawn at will by the appointing authority and at a
moments notice, conformably to established jurisprudence x x x.
The mere fact that a position belongs to the Career Service does not automatically confer security
of tenure on its occupant even if he does not possess the required qualifications. Such right will
have to depend on the nature of his appointment, which in turn depends on his eligibility or lack of
it. A person who does not have the requisite qualifications for the position cannot be appointed to it
in the first place, or as an exception to the rule, may be appointed to it merely in an acting capacity
in the absence of appropriate eligibles. The appointment extended to him cannot be regarded as
permanent even if it may be so designated x x x.
Having been appointed merely in a temporary or acting capacity, and not possessed of the necessary
qualifications to hold the position of Director IV, petitioner has no legal basis in claiming that her reassignment
was contrary to the Civil Service Law. This time, the vigorous argument of petitioner that a temporary or acting
appointment can be withdrawn or revoked at the pleasure of the appointing power happens to apply squarely to
her situation.
Still, petitioner assails her reassignment, carried out during the election period, as a prohibited act under
Section 261 (h) of the Omnibus Election Code, which provides as follows:

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

(h) Transfer of officers and employees in the civil service - Any public official who makes
or causes any transfer or detail whatever of any officer or employee in the civil service
including public school teachers, within the election period except upon prior approval of
the Commission.
Petitioner claims that Benipayo failed to secure the approval of the COMELEC en banc to effect transfers or
reassignments of COMELEC personnel during the election period.[67] Moreover, petitioner insists that the
COMELEC en banc must concur to every transfer or reassignment of COMELEC personnel during the election
period.

Contrary to petitioners allegation, the COMELEC did in fact issue COMELEC Resolution No. 3300 dated
November 6, 2000,[68] exempting the COMELEC from Section 261 (h) of the Omnibus Election Code. The
resolution states in part:

WHEREAS, Sec. 56 and Sec. 261, paragraphs (g) and (h), of the Omnibus Election Code provides
as follows:
xxx
Sec. 261. Prohibited Acts. The following shall be guilty of an election offense:
xxx
(h) Transfer of officers and employees in the civil service Any public official who
makes or causes any transfer or detail whatever of any officer or employee in the civil
service including public school teachers, within the election period except upon
approval of the Commission.
WHEREAS, the aforequoted provisions are applicable to the national and local elections on May
14, 2001;
WHEREAS, there is an urgent need to appoint, transfer or reassign personnel of the Commission
on Elections during the prohibited period in order that it can carry out its constitutional duty to
conduct free, orderly, honest, peaceful and credible elections;
NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred upon it by
the Constitution, the Omnibus Election Code and other election laws, as an exception to the
foregoing prohibitions, has RESOLVED, as it is hereby RESOLVED, to appoint, hire new
employees or fill new positions and transfer or reassign its personnel, when necessary in the
effective performance of its mandated functions during the prohibited period, provided that the
changes in the assignment of its field personnel within the thirty-day period before election day
shall be effected after due notice and hearing. (Emphasis supplied)
The proviso in COMELEC Resolution No. 3300, requiring due notice and hearing before any transfer or
reassignment can be made within thirty days prior to election day, refers only to COMELEC fieldpersonnel and
not to head office personnel like the petitioner. Under the Revised Administrative Code, [69] the COMELEC
Chairman is the sole officer specifically vested with the power to transfer or reassign COMELEC personnel. The
COMELEC Chairman will logically exercise the authority to transfer or reassign COMELEC personnel
pursuant to COMELEC Resolution No. 3300. The COMELEC en banccannot arrogate unto itself this power
because that will mean amending the Revised Administrative Code, an act the COMELEC en banc cannot
legally do.
COMELEC Resolution No. 3300 does not require that every transfer or reassignment of COMELEC
personnel should carry the concurrence of the COMELEC as a collegial body. Interpreting Resolution No.
3300 to require such concurrence will render the resolution meaningless since the COMELEC en banc will have
to approve every personnel transfer or reassignment, making the resolution utterly useless. Resolution No. 3300
should be interpreted for what it is, an approval to effect transfers and reassignments of personnel, without need
of securing a second approval from the COMELEC en banc to actually implement such transfer or
reassignment.
The COMELEC Chairman is the official expressly authorized by law to transfer or reassign COMELEC
personnel. The person holding that office, in a de jure capacity, is Benipayo. The COMELECen banc, in
COMELEC Resolution No. 3300, approved the transfer or reassignment of COMELEC personnel during the
election period. Thus, Benipayos order reassigning petitioner from the EID to the Law Department does not
violate Section 261 (h) of the Omnibus Election Code. For the same reason, Benipayos order designating
Cinco Officer-in-Charge of the EID is legally unassailable.
Fifth Issue: Legality of Disbursements to Respondents
Based on the foregoing discussion, respondent Gideon C. De Guzman, Officer-in-Charge of the Finance
Services Department of the Commission on Elections, did not act in excess of jurisdiction in paying the salaries
and other emoluments of Benipayo, Borra, Tuason and Cinco.
WHEREFORE, the petition is dismissed for lack of merit. Costs against petitioner.

SO ORDERED.

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. 149036
April 2, 2002
EN BANC
FACTS:
On February 2, 1999, the COMELEC en banc appointed petitioner as "Acting Director IV" of
the EID. On February 15, 2000, then Chairperson Harriet O. Demetriou renewed the appointment of
petitioner as Director IV of EID in a "Temporary" capacity. On March 22, 2001, President Gloria
Macapagal Arroyo appointed, ad interim, Benipayo as COMELEC Chairman together with other
commisioners in an ad interim appointment.
In his capacity as COMELEC Chairman, Benipayo issued a Memorandum dated April 11,
2001 addressed to petitioner as Director IV of the EID and to Cinco as Director III also of the EID,
designating Cinco Officer-in-Charge of the EID and reassigning petitioner to the Law Department.
COMELEC EID Commissioner-in-Charge Mehol K. Sadain objected to petitioners reassignment in a
Memorandum dated April 14, 2001 addressed to the COMELEC en banc. Specifically, Commissioner
Sadain questioned Benipayos failure to consult the Commissioner-in-Charge of the EID in the
reassignment of petitioner.
Petitioner requested Benipayo to reconsider her relief as Director IV of the EID and her
reassignment to the Law Department.
Petitioner cited Civil Service Commission Memorandum Circular No. 7 dated April 10, 2001,
reminding heads of government offices that "transfer and detail of employees are prohibited during
the election period beginning January 2 until June 13, 2001." Benipayo denied her request for
reconsideration on April 18, 2001, citing COMELEC Resolution No. 3300 dated November 6, 2000,
Exempting the Comelec from the coverage of the said memo circular.
Petitioner appealed the denial of her request for reconsideration to the COMELEC en bancin a
Memorandum dated April 23, 2001. Petitioner also filed an administrative and criminal complaint with
the Law Department against Benipayo, alleging that her reassignment violated Section 261 (h) of the
Omnibus Election Code, COMELEC Resolution No. 3258, Civil Service Memorandum Circular No.
07, s. 001, and other pertinent administrative and civil service laws, rules and regulations.
During the pendency of her complaint before the Law Department, petitioner filed the instant
petition questioning the appointment and the right to remain in office of Benipayo, Borra and Tuason,
as Chairman and Commissioners of the COMELEC, respectively. Petitioner claims that the ad
interim appointments of Benipayo, Borra and Tuason violate the constitutional provisions on the
independence of the COMELEC.
ISSUES:
Whether or not the assumption of office by Benipayo, Borra and Tuason on the basis of the
ad interim appointments issued by the President amounts to a temporary appointmentprohibited by
Section 1 (2), Article IX-C of the Constitution.
RULING:
We find petitioners argument without merit.
An ad interim appointment is a permanent appointment because it takes effect immediately
and can no longer be withdrawn by the President once the appointee has qualified into office. The
fact that it is subject to confirmation by the Commission on Appointments does not alter its permanent
character. The Constitution itself makes an ad interim appointment permanent in character by making
it effective until disapproved by the Commission on Appointments or until the next adjournment
of Congress.

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 the Comelecs 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.

Benipayos removal of petitioner is illegal

5.

OIC of COMELECs Finance Services Department acting in excess jurisdiction

Matibags 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 Commission and COA

9.

Sec 1 (2) of Article IX-C; an ad interim appointee cannot assume office until confirmed by the
Commission on Appointments
Benipayos Argument:

1.

Comelec Resolution No. 3300

2.
3.
4.

Petitioner does not have personal interest, not directly injured

Failure to question constitutionality of ad interim appointments at the earliest opportunity. She filed
only after third time of reappointments
Ad interim is not the lis mota because the real issue is the legality of petitioners 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 before his 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 COMELEC Chairman, 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 of office 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 itself makes 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 who has 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 for cause, 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 the Commission 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 of Damoclesover 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 the three 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 the Constitution
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-C of 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 in the 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 was assailed 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 and regulation 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 Cruz had 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 complied3 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 thetemp
orary 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 his replacement,
trhere is no longer any remaining term to beserved.Administrative Code of
1987Book VTitle ISubtitle AChapter 5Section 27. Employment Status. Appointment in
the career service shall bepermanent or temporary.(1)Permanent Status. A permanent
appointment shall be 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 i
n 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 theCivil Service 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 no power of
appointment except over its own personnel.Neither does it have the authority to review
the appointments made by
otheroffices except only to ascertain if the appointee possesses the requiredqualification
s. 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 muchless can 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, t
he 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 a political 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 becomesnecessary in 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 civil service eligible becomes available.
The Administrative Code of 1987 characterizes the Career Service
as:(1) Open Career positions for appointment to which prior qualificationin an
appropriate examination is required;(2) Closed Career positions which are scientific, or
highly technical innature; these include the faculty and academic 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 governmentowned or controlled corporations,whether performing 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 o

f 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 job requiring 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 a
nd 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 status
shall 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 coexistent with his tenure. The foregoing status (coterminous) may be further classified into thefollowing:a)
co-terminous with the project When the appointment is co-existent withthe duration 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 subjectof legislation, 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 to those 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 this case; 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 the coverage includes contractual employees already whichwas admittedly
overlooked before.A
co-terminus employee is a non-career civil servant, like casual and
emergency employees.A co-terminus or project employee should be included in the
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 Series of 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 ornoncareer 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 InCharge 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 mere ground
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 wit
h 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 the issuance of an appointment to
theprotestant, if the protest case is not yet finally 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 theproximily rule enunciated in Case

63: 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 aptitude of 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 1st
instance, 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 aconfide
ntial 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 forthe declaration of a position
asa.)primarily confidential,b.)policy determining orc.)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 91830 does not make PAGCOR employees confidential,merely reiterates exemption from
civil service eligibility requirement.In reversing the decision of the CSC, the CA opined
that the provisions of Section 16, PD 1869 may no longer be 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
1959
Rule XXSection 2 The power to declare a position as:a.)primarily confidential,b.)policy
determining orc.)highly technical,as defined therein has 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 were
2 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 be made only according to merit and fitness to
bedetermined as far as practicable by competitive examinations.
SEPARATE OPINIONS
VITUG, 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 to me that the adverse
findingsarrived at by the Intelligence Division of PAGCOR which the Board of 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
compensationmeans the basic pay or salary by an employee, pursuant to hisemploym
ent/appointment, excluding per diems, bonuses, overtime pay,allowances and any other
emoluments received in addition to the basic paywhich are not 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
July 1, 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 directors
of 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, andcommonlyaccepted 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 thecomp
ensation 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
clearly indicates 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 nonsupervisory, sub-professional supervisory, andsub-professional nonsupervisory, 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 wat
er 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 inc
umbents arepresently receiving makes it clear that the law does not refer to thecompens
ation 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 how long
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 such right
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 water
districts.

PANIS v. CIVIL SERVICE COMMISSION

FACTS:
Petitioner was employed as Administrative Officer of the
Hospital,while private respondent was Administrative Officer of the City HealthDepartme
nt 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 the
appointment 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-inrank 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 he alone 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, sufficientdiscretion, if not p
lenary, 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