THE LAW ON PUBLIC OFFICERS
some functions carried with it re-naming
2. Fernandez vs. Sto. Tomas
Feliciano, J
Doctrine: Appointments to the staff of the
Commission are not appointments to a
specified public office but rather
appointments to particular positions or
ranks. Thus, a person may be appointed
to the position of Director III or Director
IV; or to the position of Attorney IV or
Attorney V. In the instant case, petitioners
were each appointed to the position of
Director IV, without specification of any
particular office or station. Hence, their
subsequent assignment from the RDO to
the Commission's Regional Offices had
been effected with express statutory
authority and did not constitute removals
without lawful cause.
Facts: Petitioner Fernandez was serving
as Director of the Office of Personnel
Inspection and Audit ("OPIA") while
petitioner de Lima was serving as
Director of the Office of the Personnel
Relations ("OPR"), both at the Central
Office of the Civil Service Commission.
While petitioners were so serving, A
Resolution, signed and implemented by
public respondent Chairman Patricia Sto.
Tomas of the Commission over the
objections of the petitioners, was issued
where OCSS [Office of Career Systems
and Standards], OPIA and OPR which
are internal departments within the
Commission, are merged to form the
Research and Development Office (RDO)
and their certain functions were re-
allocated moving some functions from
one Office to another to streamline [the
Commission's] operations and improve
delivery of service.
This re-allocation or re-assignment of
of existing Offices, re-arrangement of the
groupings of Divisions and Sections
composing particular Offices and the
transfer of the budget earmarked for such
function to the Office where the function
was transferred. These changes in
internal organization were rendered
necessary by the decentralization and
devolution of the Commission's functions
effected by the creation of fourteen (14)
Regional Offices and ninety-five (95)
F i e l d O ff i c e s o f t h e C o m m i s s i o n
throughout the country.
Petitioners then instituted this Petition to
restrain public respondents from
enforcing these Office Orders arguing
t h a t t h e R e s o l u t i o n e ff e c t e d t h e
"abolition" of public offices, something
which may be done only by the same
legislative authority which had created
those public offices in the first place.
The principal issues raised in this
Petition are the following:
(1) Whether or not the Civil Service
Commission had legal authority to issue
the Resolution to the extent it merged the
OCSS, the OPIA and the OPR to form the
RDO
(2) Whether or not Resolution No.
94-3710 violated petitioners'
constitutional right to security of tenure.
Ruling: (1) No.
The term "public office" is frequently used
to refer to the right, authority and duty,
created and conferred by law, by which,
for a given period either fixed by law or
enduring at the pleasure of the creating
power, an individual is invested with
some portion of the sovereign functions
of government, to be exercised by that
individual for the benefit of the public. We
consider that Resolution has
not abolished any public office as that
term is used in the law of public officers.
It is essential to note that none of the
"changes in organization" introduced by
Resolution carried with it or necessarily
involved the termination of the
relationship of public employment
between the Commission and any of its
officers and employees. To the contrary,
the legislative authority had
expressly authorized the Commission to
carry out "changes in the organization,"
as the need [for such changes] arises."
Assuming, for purposes of argument
merely, that legislative authority was
necessary to carry out the kinds of
changes contemplated in Resolution,
such legislative authority was validly
delegated to the Commission
(2) No.
We note, firstly, that appointments to the
staff of the Commission are not
appointments to a specified public office
but rather appointments to particular
positions or ranks. Thus, a person may
be appointed to the position of Director III
or Director IV; or to the position of
Attorney IV or Attorney V. In the instant
case, petitioners were each appointed to
the position of Director IV, without
specification of any particular office or
station. It follows that the reassignment of
petitioners Fernandez and de Lima from
their previous positions in OPIA and
OPR, respectively, to the RDO in the
Central Office of the Commission in
Metropolitan Manila and their subsequent
assignment from the RDO to the
Commission's Regional Offices had been
effected with express statutory authority
and did not constitute removals without
lawful cause. It also follows that such re-
assignment did not involve any violation
of the constitutional right of petitioners to
security of tenure considering that they
retained their positions and would
continue to enjoy the same rank, status
and salary at their new assigned
3. Laurel vs. Desierto; April 12, 2002
Doctrine: The most important
characteristic which distinguishes an
office from an employment or contract is
that the creation and conferring of an
office involves a delegation to the
individual of some of the sovereign
functions of government, to be exercised
by him for the benefit of the public; – that
some portion of the sovereignty of the
country, either legislative, executive or
judicial, attaches, for the time being, to be
exercised for the public benefit. Unless
the powers conferred are of this nature,
the individual is not a public officer.
Kapunan, J.
Facts: Petitioner is the Chair of the
National Centennial Commission (NCC),
tasked to “take charge of the nationwide
preparations for the National Celebration
of the Philippine Centennial of the
Declaration of Philippine Independence
and the Inauguration of the Malolos
Congress.”
Subsequently, a corporation named the
Philippine Centennial Expo ’98
Corporation (Expocorp) was created and
Petitioner was elected Expocorp Chief
Executive Officer.
An investigation of the anomalies in the
construction and operation of the
centennial projects was effected and the
Senate Blue Ribbon Committee filed with
the Secretary of the Senate its
Committee Final Report recommending
for “the prosecution by the Ombudsman/
DOJ of Dr. Salvador Laurel, chair of NCC
and of EXPOCORP for violating the rules
on public bidding, in violation of the anti-
graft law.”

The Evaluation and Preliminary
Investigation Bureau issued a resolution
finding “probable cause to indict petitioner
before the Sandiganbayan for conspiring
to violate Section 3(e) of Republic Act No.
3019, in relation to Republic Act No.
1594.” Petitioner assails the jurisdiction of
the Ombudsman on the ground that he is
not a public officer because he, both as
chairman of the NCC and of the
EXPOCORP was not a “public officer.”
Issue: WON NCC is a public office and
petitioner, as Chair of the NCC, a public
officer.
Held: Yes, and yes. A public office is the
right, authority and duty, created and
conferred by law, by which, for a given
period, either fixed by law or enduring at
the pleasure of the creating power, an
individual is invested with some portion of
the sovereign functions of the
government, to be exercised by him for
the benefit of the public. The individual
so invested is a public officer (Mechem).
The most important characteristic which
distinguishes an office from an
employment or contract is that the
creation and conferring of an office
involves a delegation to the individual of
some of the sovereign functions of
government, to be exercised by him for
the benefit of the public; – that some
portion of the sovereignty of the country,
either legislative, executive or judicial,
attaches, for the time being, to be
exercised for the public benefit. Unless
the powers conferred are of this nature,
the individual is not a public officer.
In its preamble, A.O. No. 223 states the
purposes for the creation of the
Committee for the National Centennial
Celebrations in 1998 whereas, there is a
need to create a body which shall initiate
and undertake the primary task of
harnessing the multi-sectoral components
from the business, cultural, and business
sectors to serve as effective instruments
from the launching and overseeing of this
long-term project. The NCC is an office
performing executive functions since one
of its mandate is to implement national
policies. Moreover, the said office was
established by virtue of an executive
order. It is clear that the NCC performs
sovereign functions, hence it is a public
office. Since petitioner is chair of the
NCC, he is therefore a public officer.
Finally, the fact that the petitioner did not
receive any compensation during his
tenure is of no consequence since such
is merely an incidence and forms no part
of the office.
4 . J U A N G . F R I VA L D O v s .
COMMISSION ON ELECTIONS, and
RAUL R. LEE
G.R. Nos. 120295 & 123755, [June 28,
1996], 257 SCRA 727
PONENTE: PANGANIBAN, J.
DOCTRINE: The Local Government
Code of 1991 [Republic Act No. 7160]
expressly requires Philippine citizenship
as a qualification for elective local
officials, including that of provincial
governor. Philippine citizenship is an
indispensable requirement for holding an
elective public office, and the purpose of
the citizenship qualification is none other
than to ensure that no alien, i.e., no
person owing allegiance to another
nation, shall govern our people and our
country or a unit of territory thereof. Now,
an official begins to govern or to
discharge his functions only upon his
proclamation and on the day the law
mandates his term of office to begin. The
law intended CITIZENSHIP to be a
qualification distinct from being a VOTER,
even if being a voter presumes being a
citizen first. It also stands to reason that
the voter requirement was included as
another qualification (aside from
"citizenship"), not to reiterate the need for
nationality but to require that the official
be registered as a voter IN THE AREA
OR TERRITORY he seeks to govern. i.e.,
the law states: "a registered voter in the
barangay, municipality, city, or province . .
. where he intends to be elected." It
should be emphasized that the Local
Government Code requires an elective
official to be a registered voter. It does
not require him to vote actually. Hence,
registration — not the actual voting — is
the core of this "qualification". In other
words, the law's purpose in this second
requirement is to ensure that the
prospective official is actually registered
in the area he seeks to govern — and not
anywhere else.
FACTS: On March 20, 1995, private
respondent Juan G. Frivaldo filed his
Certificate of Candidacy for the office of
Governor of Sorsogon in the May 8, 1995
elections. On March 23, 1995, petitioner
Raul R. Lee, another candidate, filed a
petition with the COMELEC praying that
Frivaldo "be disqualified from seeking or
holding any public office or position by
reason of not yet being a citizen of the
Philippines," and that his Certificate of
Candidacy be cancelled. On May 1,
1995, the Second Division of the
COMELEC promulgated a Resolution
granting the petition.
The Motion for Reconsideration filed by
Frivaldo remained unacted upon until
after the May 8, 1995 elections. So, his
candidacy continued and he was voted
for during the elections held on said date.
On May 11, 1995, the COMELEC en
banc affirmed the aforementioned
Resolution of the Second Division.
The Provincial Board of Canvassers
completed the canvass of the election
returns and a Certificate of Votes was
issued showing the following votes
obtained by the candidates for the
position of Governor of Sorsogon:
Antonio H. Escudero, Jr.
51,060
Juan G. Frivaldo
73,440
R a u l R . L e e
53,304
Isagani P. Ocampo
1,925
On June 9, 1995, Lee filed a
(supplemental) petition praying for his
proclamation as the duly-elected
Governor of Sorsogon.
In an order dated June 21, 1995, but
promulgated according to the petition
"only on June 29, 1995," the COMELEC
en banc directed "the Provincial Board of
Canvassers of Sorsogon to reconvene for
the purpose of proclaiming candidate
Raul Lee as the winning gubernatorial
candidate in the province of Sorsogon on
June 29,1995 x x x." Accordingly, at 8:30
in the evening of June 30, 1995, Lee was
proclaimed governor of Sorsogon.
Frivaldo filed with the COMELEC a new
petition praying for the annulment of the
June 30, 1995 proclamation of Lee and
for his own proclamation. He alleged that
on June 30, 1995, at 2:00 in the
afternoon, he took his oath of allegiance
as a citizen of the Philippines after "his
petition for repatriation under P.D. 725
which he filed with the Special Committee
on Naturalization in September 1994 had
been granted." As such, when "the said
order (dated June 21, 1995) (of the
COMELEC) x x x was released and
received by Frivaldo on June 30, 1995 at
5:30 o'clock in the evening, there was no
more legal impediment to the
proclamation (of Frivaldo) as governor x x
x." In the alternative, he averred that
pursuant to the two cases of Labo vs.
COMELEC, the Vice-Governor— not Lee
— should occupy said position of
governor.
On December 19, 1995, the COMELEC
First Division promulgated the herein
assailed Resolution holding that Lee, "not
having garnered the highest number of
votes," was not legally entitled to be
proclaimed as duly-elected governor; and
that Frivaldo, "having garnered the
highest number of votes, and having
reacquired his Filipino citizenship by
repatriation on June 30, 1995 under the
provisions of Presidential Decree No. 725
is qualified to hold the office of governor
of Sorsogon".
ISSUE: Was the repatriation of Frivaldo
valid and legal? (YES) If so, did it
seasonably cure his lack of citizenship as
to qualify him to be proclaimed and to
hold the Office of Governor? (YES) If not,
may it be given retroactive effect? If so,
from when?
HELD:The validity and effectivity of
Frivaldo's repatriation is the lis mota, the
threshold legal issue in this case. All the
other matters raised are secondary to this
The Local Government Code of 1991
[Republic Act No. 7160] expressly
requires Philippine citizenship as a
qualification for elective local officials,
including that of provincial governor.
Philippine citizenship is an indispensable
requirement for holding an elective public
office, and the purpose of the citizenship
qualification is none other than to ensure
that no alien, i.e., no person owing
allegiance to another nation, shall govern
our people and our country or a unit of
territory thereof. Now, an official begins to
govern or to discharge his functions only
upon his proclamation and on the day the
law mandates his term of office to begin.
The law intended CITIZENSHIP to be a
qualification distinct from being a VOTER,
even if being a voter presumes being a
citizen first. It also stands to reason that
the voter requirement was included as
another qualification (aside from
"citizenship"), not to reiterate the need for
nationality but to require that the official
be registered as a voter IN THE AREA
OR TERRITORY he seeks to govern. i.e.,
the law states: "a registered voter in the
barangay, municipality, city, or province . .
. where he intends to be elected." It
should be emphasized that the Local
Government Code requires an elective
official to be a registered voter. It does
not require him to vote actually. Hence,
registration — not the actual voting — is
the core of this "qualification". In other
words, the law's purpose in this second
requirement is to ensure that the
prospective official is actually registered
in the area he seeks to govern — and not
anywhere else.
Despite his lack of Philippine citizenship,
Frivaldo was overwhelmingly elected
governor by the electorate of Sorsogon,
with a margin of 27,000 votes in the 1988
elections, 57,000 in 1992, and 20,000 in
1995 over the same opponent Raul Lee.
Twice, he was judicially declared a non-
Filipino and thus twice disqualified from
holding and discharging his popular
mandate. Now, he comes to us a third
time, with a fresh vote from the people of
Sorsogon and a favorable decision from
the Commission on Elections to boot.
Moreover, he now boasts of having
successfully passed through the third and
last mode of reacquiring citizenship: by
repatriation under P.D. No. 725, with no
less than the Solicitor General himself,
who was the prime opposing counsel in
the previous cases he lost, this time, as
counsel for co-respondent Comelec,
arguing the validity of his cause (in
addition to his able private counsel Sixto
S. Brillantes, Jr.). That he took his oath of
allegiance under the provisions of said
Decree at 2:00 p.m. on June 30, 1995 is
not disputed. Hence, he insists that he —
not Lee — should have been proclaimed
as the duly-elected governor of Sorsogon
when the Provincial Board of Canvassers
met at 8:30 p.m. on the said date since,
clearly and unquestionably, he garnered
the highest number of votes in the
elections and since at that time, he
already reacquired his citizenship.
Under Philippine law, citizenship may be
reacquired by direct act of Congress, by
naturalization or by repatriation.
The requirements of repatriation under
P.D. No. 725 are not difficult to comply
with, nor are they tedious and
cumbersome. In fact, P.D. 725 itself
requires very little of an applicant, and
even the rules and regulations to
implement the said decree were left to
the Special Committee to promulgate.
This is not unusual since, unlike in
naturalization where an alien covets a
first-time entry into Philippine political life,
in repatriation the applicant is a former
natural-born Filipino who is merely
seeking to reacquire his previous
citizenship.
To remove all doubts on this important
issue, we also hold that the repatriation of
Frivaldo RETROACTED to the date of the
filing of his application on August 17,
1994.
It is true that under the Civil Code of the
Philippines, 39 "(l)aws shall have no
retroactive effect, unless the contrary is
provided." But there are settled
exceptions 40 to this general rule, such
as when the statute is CURATIVE or
REMEDIAL in nature or when it
CREATES NEW RIGHTS.
A reading of P.D. 725 immediately shows
that it creates a new right, and also
provides for a new remedy, thereby filling
certain voids in our laws. Thus, in its
preamble, P.D. 725 expressly recognizes
the plight of "many Filipino women (who)
had lost their Philippine citizenship by
marriage to aliens" and who could not,
under the existing law (C.A. No. 63, as
amended) avail of repatriation until "after
the death of their husbands or the
termination of their marital status" and
who could neither be benefited by the
1973 Constitution's new provision
allowing "a Filipino woman who marries
an alien to retain her Philippine
citizenship . . ." because "such provision
of the new Constitution does not apply to
Filipino women who had married aliens
before said constitution took effect."
Thus, P.D. 725 granted a new right to
these women — the right to re-acquire
Filipino citizenship even during their
marital coverture, which right did not exist
prior to P.D. 725. On the other hand, said
statute also provide a new remedy and a
new right in favor of other "natural born
Filipinos who (had) lost their Philippine
citizenship but now desire to re-acquire
Philippine citizenship," because prior to
the promulgation of P.D. 725 such former
Filipinos would have had to undergo the
tedious and cumbersome process of
naturalization, but with the advent of P.D.
725 they could now re-acquire their
Philippine citizenship under the simplified
procedure of repatriation.
In sum, we rule that the citizenship
requirement in the Local Government
Code is to be possessed by an elective
official at the latest as of the time he is
proclaimed and at the start of the term of
office to which he has been elected. We
further hold P.D. No. 725 to be in full
force and effect up to the present, not
having been suspended or repealed
expressly nor impliedly at any time, and
Frivaldo's repatriation by virtue thereof to
have been properly granted and thus
valid and effective. Moreover, by reason
of the remedial or curative nature of the
law granting him a new right to resume
his political status and the legislative
intent behind it, as well as his unique
situation of having been forced to give up
his citizenship and political aspiration as
his means of escaping a regime he
abhorred, his repatriation is to be given
retroactive effect as of the date of his
application therefor, during the pendency
of which he was stateless, he having
given up his U.S. nationality. Thus, in
contemplation of law, he possessed the
vital requirement of Filipino citizenship as
of the start of the term of office of
governor, and should have been
proclaimed instead of Lee. Furthermore,
since his reacquisition of citizenship
retroacted to August 17, 1994, his
registration as a voter of Sorsogon is
deemed to have been validated as of said
date as well. The foregoing, of course,
are precisely consistent with our holding
that lack of the citizenship requirement is
not a continuing disability or
disqualification to run for and hold public
office. And once again, we emphasize
herein our previous rulings recognizing
the Comelec's authority and jurisdiction to
hear and decide petitions for annulment
of proclamations.
This Court has time and again liberally
and equitably construed the electoral
laws of our country to give fullest effect to
the manifest will of our people, 66 for in
case of doubt, political laws must be
interpreted to give life and spirit to the
popular mandate freely expressed
through the ballot. Otherwise stated, legal
niceties and technicalities cannot stand in
the way of the sovereign will.
Consistently, we have held:
". . . (L)aws governing election contests
must be liberally construed to the end
that the will of the people in the choice of
public officials may not be defeated by
mere technical objections (citations
omitted)." 67
The law and the courts must accord
Frivaldo every possible protection,
defense and refuge, in deference to the
popular will. Indeed, this Court has
repeatedly stressed the importance of
giving effect to the sovereign will in order
to ensure the survival of our democracy.
In any action involving the possibility of a
reversal of the popular electoral choice,
this Court must exert utmost effort to
resolve the issues in a manner that would
give effect to the will of the majority, for it
is merely sound public policy to cause
elective offices to be filled by those who
are the choice of the majority. To
successfully challenge a winning
candidate's qualifications, the petitioner
must clearly demonstrate that the
ineligibility is so patently antagonistic 68
to constitutional and legal principles that
overriding such ineligibility and thereby
giving effect to the apparent will of the
people, would ultimately create greater
prejudice to the very democratic
institutions and juristic traditions that our
Constitution and laws so zealously
protect and promote. In this undertaking,
Lee has miserably failed.
In Frivaldo's case, it would have been
technically easy to find fault with his
cause. The Court could have refused to
grant retroactivity to the effects of his
repatriation and hold him still ineligible
due to his failure to show his citizenship
at the time he registered as a voter
before the 1995 elections. Or, it could
have disputed the factual findings of the
Comelec that he was stateless at the time
of repatriation and thus hold his
consequent dual citizenship as a
disqualification "from running for any
elective local position." But the real
essence of justice does not emanate from
quibblings over patchwork legal
technicality. It proceeds from the spirit's
gut consciousness of the dynamic role of
law as a brick in the ultimate
development of the social edifice. Thus,
the Court struggled against and
eschewed the easy, legalistic, technical
and sometimes harsh anachronisms of
the law in order to evoke substantial
justice in the larger social context
consistent with Frivaldo's unique situation
approximating venerability in Philippine
political life. Concededly, he sought
American citizenship only to escape the
clutches of the dictatorship. At this stage,
we cannot seriously entertain any doubt
about his loyalty and dedication to this
country. At the first opportunity, he
returned to this land, and sought to serve
his people once more. The people of
Sorsogon overwhelmingly voted for him
three times. He took an oath of allegiance
to this Republic every time he filed his
certificate of candidacy and during his
failed naturalization bid. And let it not be
overlooked, his demonstrated tenacity
and sheer determination to re-assume his
nationality of birth despite several legal
set-backs speak more loudly, in spirit, in
fact and in truth than any legal
technicality, of his consuming intention
and burning desire to re-embrace his
native Philippines even now at the ripe
old age of 81 years. Such loyalty to and
love of country as well as nobility of
purpose cannot be lost on this Court of
justice and equity. Mortals of lesser
mettle would have given up. After all,
Frivaldo was assured of a life of ease and
plenty as a citizen of the most powerful
country in the world. But he opted, nay,
single-mindedly insisted on returning to
and serving once more his struggling but
beloved land of birth. He therefore
deserves every liberal interpretation of
the law which can be applied in his favor.
And in the final analysis, over and above
Frivaldo himself, the indomitable people
of Sorsogon most certainly deserve to be
governed by a leader of their
overwhelming choice.
5. LEON G. MAQUERA vs. JUAN
BORRA
G.R. No. L-24761, L-24828
(Resolution), [September 7, 1965], 15
SCRA 7
DOCTRINE: Republic Act NO. 4421
requires a candidate to post a surety
bond equivalent to one-year salary of the
position to which he is a candidate, which
bond shall be forfeited in favor of the
government, if the candidate, except
when declared winner, fails to obtain at
least 10% of the votes cast for the office,
there being not more than four
candidates for the same office. The effect
of said Republic Act No. 4421 is to
impose property qualifications in order
that a person could run for a public office,
which property qualifications are
inconsistent with the nature and essence
of the Republican system ordained in the
Constitution and the principle of social
justice underlying the same.
Consequently, Republic Act No. 4421 is
unconstitutional and hence null and void.
FACTS: In 1965, Republic Act No. 4421,
AN ACT TO FURTHER AMEND THE
REVISED ELECTION CODE, AS
AMENDED, was enacted. It requires "all
candidates for national, provincial, city
and municipal offices" to "post a surety
bond equivalent to the one-year salary or
emoluments of the position to which he is
a candidate, which bond shall be forfeited
in favor of the national, provincial, city or
municipal government concerned if the
candidate, except when declared winner,
fails to obtain at least 10% of the votes
cast for the office to which he has filed his
certificate of candidacy, there being not
more than four (4) candidates for the
same office;"
In compliance with said Republic Act No.
4421, the Commission on Elections had,
on July 20,1965, decided to require all
candidates for President, Vice-President,
Senator and Member of the House of
Representatives to file a surety bond, by
a bonding company of good reputation,
acceptable to the Commission, in the
sums of P60,000.00 and P40,000.00 for
President and Vice-President,
respectively, and P32,000.00 for Senator
and Member of the House of
Representatives.
In consequence of said Republic Act No.
4421 and the aforementioned action of
the Commission on Elections, every
candidate has to pay the premium
charged by bonding companies, and, to
offer thereto, either his own properties,
worth, at least, the amount of the surety
bond, or properties, of the same worth,
belonging to other persons willing to
accommodate him, by way of counter-
bond in favor of said bonding companies.
ISSUE: WON Republic Act No. 4421 is
constitutional.
HELD: NO. Republic Act No. 4421 has
the effect of preventing or disqualifying
from running for President, Vice-
President, Senator or Member of the
House of Representatives those persons
who, although having the qualifications
prescribed by the Constitution therefor,
cannot file the surety bond
aforementioned, owing to failure to pay
the premium charged by the bonding
company and/or lack of the property
necessary for said counterbond. It has,
likewise, the effect of disqualifying for
provincial, city or municipal elective
offices, persons who, although
possessing the qualifications prescribed
by law therefor, cannot pay said premium
and/or do not have the property essential
for the aforementioned counter-bond.
Accordingly, R.A. No. 4421 has the effect
of imposing property qualifications in
order that a person could run for a public
office and that the people could validly
vote for him. That said property
qualifications are inconsistent with the
nature and essence of the Republican
system ordained in our Constitution and
the principle of social justice underlying
the same, for said political system is
premised upon the tenet that sovereignty
resides in the people and all government
authority emanates from them, and this,
in turn, implies necessarily that the right
to vote and to be voted for shall not be
dependent upon the wealth of the
individual concerned, whereas social
justice presupposes equal opportunity for
all, rich and poor alike, and that,
accordingly, no person shall, by reason of
poverty, be denied the chance to be
elected to public office. The bond
required in Republic Act No. 4421 and the
confiscation of said bond are not
predicated upon the necessity of
defraying certain expenses or of
compensating services given in
connection with elections, and is,
therefore, arbitrary and oppressive.
6. [G.R. No. 130872. March 25, 1999]
FRANCISCO M. LECAROZ and LENLIE
LECAROZ, petitioners,
vs. SANDIGANBAYAN and PEOPLE OF
THE PHILIPPINES, respondents.
BELLOSILLO, J.:
Facts:
Francisco Lecaroz, father of lenlie, is the
Mayor of Santa Cruz, Marinduque. Lenlie
Lecaroz is the outgoing chairman of
Kabataang Barangay (KB) of Santa Cruz
& member of Sangguniang Bayan (SB)
representing the federation of KBs. In the
1985 election of KB, Jowil Red won as
Chairman of Barangay Santa Cruz. Lenlie
did not run as candidate as he was no
longer qualified, having passed the age
limit. Red was appointed by President
Marcos as member of SB of Santa Cruz,
representing the federation of KBs. He
received his appointment powers when
Aquino was already power. However, he
was not allowed by Mayor Lecaroz to sit
as secotral rep in the SB. Subsequently,
Mayor Lecaroz prepared and approved
on different dates the payment to lenlie
Lecaros of payrolls covering period of
January 1987 to January 1987.
Sandiganbayan found Lenlie and
Francisco guilty on 13 Informations for
Estafa through falsification of Public
Documents.
According to the KB Constitution, “In the
case of the members of the sanggunian
representing the association of barangay
councils and the president of the
federation of kabataang barangay, their
terms of office shall be coterminous with
their tenure is president of their
respective association and federation.”
The accused contends that Red failed to
qualify as KB sectoral representative to
the SB since he did not present an
authenticated copy of his appointment
papers; neither did he take a valid oath of
office. Resultantly, this enabled petitioner
Lenlie Lecaroz to continue as member of
the SB although in a holdover capacity
since his term had already expired. The
Sandiganbayan contends that the
holdover provision under Sec. 1 quoted
above pertains only to positions in the
KB, clearly implying that since no similar
provision is found in Sec. 7 of B.P. Blg.
51, there can be no holdover with respect
to positions in the SB.
Issue: Whether or not accused are guilty
of estafa through falsification? NO.
Ruling:
The concept of holdover when
applied to a public officer implies that the
office has a fixed term and the incumbent
is holding onto the succeeding term. It is
usually provided by law that officers
elected or appointed for a fixed term shall
remain in office not only for that term but
until their successors have been elected
and qualified. Where this provision is
found, the office does not become vacant
upon the expiration of the term if there is
no successor elected and qualified to
assume it, but the present incumbent will
carry over until his successor is elected
and qualified, even though it be beyond
the term fixed by law.
In the instant case, although BP Blg. 51
does not say that a Sanggunian member
can continue to occupy his post after the
expiration of his term in case his
successor fails to qualify, it does not also
say that he is proscribed from holding
over. Absent an express or implied
constitutional or statutory provision to the
contrary, an officer is entitled to stay in
office until his successor is appointed or
chosen and has qualified. The legislative
intent of not allowing holdover must be
clearly expressed or at least implied in
the legislative enactment, otherwise it is
reasonable to assume that the lawmaking
body favors the same.
Law abhors vacuum in public office: (1)
prevent public convenience from
suffering; and (2) avoid hiatus in the
performance of gov’t functions. Red’s
taking of oath before BP member Reyes
in 1985 did not make him validly assume
the presidency of KB. Under the
provisions of the Administrative Code
then in force, specifically Sec. 21, Art. VI
thereof, members of the then Batasang
Pambansa were not authorized to
administer oaths. It was only after the
approval of RA No. 6733 on 25 July 1989
that members of both Houses of
Congress were vested for the first time
with the general authority to administer
oaths. Clearly, under this circumstance,
the oath of office taken by Jowil Red
before a member of the Batasang
Pambansa who had no authority to
administer oaths, was invalid and
amounted to no oath at all.
To be sure, an oath of office is a
qualifying requirement for a public office;
a prerequisite to the full investiture with
the office. Only when the public officer
has satisfied the prerequisite of oath that
his right to enter into the position
becomes plenary and complete. Until
then, he has none at all. And for as long
as he has not qualified, the holdover
officer is the rightful occupant. It is thus
clear in the present case that since Red
never qualified for the post, petitioner
Lenlie Lecaroz remained KB
representative to the Sanggunian, albeit
in a carry over capacity, and was in every
aspect a de jure officer, or at least a de
facto officer entitled to receive the
salaries and all the emoluments
appertaining to the position. As such, he
could not be considered an intruder and
liable for encroachment of public office.
Accused committed mere judgmental
error, without criminal intent or malice. In
this case, there are clear manifestations
of good faith and lack of criminal intent.
The statements are not altogether false,
considering the doctrine of holdover.
7. G.R. No. 104732 June 22, 1993
ROBERTO A. FLORES, DANIEL Y.
F I G U E R O A , R O G E L I O T. PA L O ,
DOMINGO A. JADLOC, CARLITO T.
C R U Z a n d M A N U E L P. R E Y E S ,
petitioner,
vs.
HON. FRANKLIN M. DRILON,
Executive Secretary, and RICHARD J.
GORDON, respondents.
BELLOSILLO, J.:
Facts:
The constitutionality of Sec. 13,
par. (d), of R.A. 7227, otherwise known
as the "Bases Conversion and
Development Act of 1992," under which
respondent Mayor Richard J. Gordon of
Olongapo City was appointed Chairman
and Chief Executive Officer of the Subic
Bay Metropolitan Authority (SBMA), is
challenged in this case. Paragraph (d)
reads —
(d) Chairman administrator
— The President shall
appoint a professional
manager as administrator of
the Subic Authority with a
compensation to be
determined by the Board
subject to the approval of the
Secretary of Budget, who
shall be the ex oficio
chairman of the Board and
who shall serve as the chief
executive officer of the Subic
Authority: Provided,
however, That for the first
year of its operations from
the effectivity of this Act, the
mayor of the City of
Olongapo shall be appointed
as the chairman and chief
executive officer of the Subic
Authority.
Issue: Whether or not the proviso in Sec.
13, par. (d), of R.A. 7227 is constitutional.
Ruling:
The proviso violates the
constitutional proscription against
appointment or designation of elective
officials to other government posts. In full,
Sec. 7 of Art. IX-B of the Constitution
provides:No elective official shall be
eligible for appointment or designation in
any capacity to any public office or
position during his tenure. Unless
otherwise allowed by law or by the
primary functions of his position, no
appointive official shall hold any other
office or employment in the Government
or any subdivision, agency or
instrumentality thereof, including
government-owned or controlled
corporations or their subsidiaries. In the
case at bar, the subject proviso directs
the President to appoint an elective
official, i.e., the Mayor of Olongapo City,
to other government posts (as Chairman
of the Board and Chief Executive Officer
of SBMA). Since this is precisely what the
constitutional proscription seeks to
prevent, there is not doubt to conclude
that the proviso contravenes Sec. 7, first
par., Art. IX-B, of the Constitution.
In any case, the view that an elective
official may be appointed to another post
if allowed by law or by the primary
functions of his office, ignores the clear-
cut difference in the wording of the two
(2) paragraphs of Sec. 7, Art. IX-B, of the
Constitution. While the second paragraph
authorizes holding of multiple offices by
an appointive official when allowed by law
or by the primary functions of his position,
the first paragraph appears to be more
stringent by not providing any exception
to the rule against appointment or
designation of an elective official to the
government post, except as are
particularly recognized in the Constitution
itself.
The appointment of Gordon as Chairman
of the SBMA is null. However, despite his
appointment to the said office, Gordon
did not automatically forfeit his seat as
Mayor of Olongapo City.
Where, as in the case of respondent
Gordon, an incumbent elective official
was, notwithstanding his ineligibility,
appointed to other government posts, he
does not automatically forfeit his elective
office nor remove his ineligibility imposed
by the Constitution. On the contrary,
since an incumbent elective official is not
eligible to the appointive position, his
appointment or designation thereto
cannot be valid in view of his
disqualification or lack of eligibility. This
provision should not be confused with
Sec. 13, Art. VI, of the Constitution where
"(n)o Senator or Member of the House of
Representatives may hold any other
office or employment in the Government .
. . during his term without forfeiting his
seat . . . ." The difference between the
two provisions is significant in the sense
that incumbent national legislators lose
their elective posts only after they have
been appointed to another government
office, while other incumbent elective
officials must first resign their posts
before they can be appointed, thus
running the risk of losing the elective post
as well as not being appointed to the
other post.
As incumbent elective official,
respondent Gordon is ineligible for
appointment to the position of Chairman
of the Board and Chief Executive of
SBMA; hence, his appointment thereto
pursuant to a legislative act that
contravenes the Constitution cannot be
sustained. He however remains Mayor of
Olongapo City, and his acts as SBMA
official are not necessarily null and void;
he may be considered a de facto officer
who may retain the benefits he may
received from the position he may have
assumed.
8. GO
G.R. No. 194994 April 16, 2013
EMMANUEL A. DE CASTRO, Petitioner,
vs.
EMERSON S. CARLOS, Respondent.
SERENO, CJ.:
*AGMO= Assistant General Manager for
Operations
Doctrine: an AGMO should possess all
the qualifications required by third-
level career service within the CES. In
this case, petitioner does not have the
required eligibility. Therefore, we find
that his appointment to the position of
AGMO was merely temporary.
Facts:
President Gloria Macapagal Arroyo
appointed petitioner as AGM0. His
appointment was concurred in by the
members of the Metro Manila Council in
MMDA.
Meanwhile, Executive Secretary Paquito
Ochoa issued Office of the President
(OP) Memorandum Circular No. 2, Series
of 2010, amending OP Memorandum
Circular No. 1, Series of 2010.
OP Memorandum Circular No. 2 states:
2. All non-Career Executive Service
Officials (non-CESO) occupying Career
Executive Service (CES) positions in all
agencies of the executive branch shall
remain in office and continue to perform
their duties and discharge their
responsibility until October 31, 2010 or
until their resignations have been
accepted and/or until their respective
replacements have been appointed or
designated, whichever comes first, unless
they are reappointed in the meantime.
Atty. Francis N. Tolentino, chairperson of
the MMDA reassigned petitioner to the
Legal and Legislative Affairs Office, Office
of the General Manager.
Subsequently, Chairperson Tolentino
designated respondent as OIC of the
Office of the AGMO. Thereafter, the name
of petitioner was stricken off the MMDA
payroll, and he was no longer paid his
salary beginning November 2010.
Petitioner sought a clarification from the
Career Executive Service Board (CESB)
as to the proper classification of the
position of AGMO. In her reply, Executive
Director Maria Anthonette Allones
(Executive Director Allones), CESO I,
stated that the position of AGMO had not
yet been classified and could not be
considered as belonging to the Career
Executive Service (CES). She further
stated that a perusal of the appointment
papers of petitioner showed that he was
not holding a coterminous position. In
sum, she said, he was not covered by OP
Memorandum Circular Nos. 1 and 2.
Demanding payment of his salary and
reinstatement in the monthly payroll,
petitioner sent a letter on 5 December
2010 to Edenison Faisan, assistant
general manager (AGM) for Finance and
Administration; and Lydia Domingo,
Director III, Administrative Services. For
his failure to obtain an action or a
response from MMDA, he then made a
formal demand for his reinstatement as
AGMO through a letter addressed to the
Office of the President on 17 December
2010
Issue: Whether petitioner Emmanuel A.
de Castro is entitled to the position of
AGMO
Ruling: No
An AGMO performs functions that are
managerial in character; exercises
management over people, resource, and/
or policy; and assumes functions like
planning, organizing, directing,
coordinating, controlling, and overseeing
the activities of MMDA. The position
requires the application of managerial or
supervisory skills necessary to carry out
duties and responsibilities involving
functional guidance, leadership, and
supervision.
For the foregoing reasons, the position of
AGMO is within the coverage of the CES.
With particular reference to positions in
the career executive service (CES), the
requisite civil service eligibility is acquired
upon passing the CES examinations
administered by the CES Board and the
subsequent conferment of such eligibility
upon passing the examinations. Once a
person acquires eligibility, he either earns
the status of a permanent appointee to
the CES position to which he has
previously been appointed, or he
becomes qualified for a permanent
appointment to that position provided only
that he also possesses all the other
qualifications for the position. Verily, it is
clear that the possession of the required
CES eligibility is that which will make an
appointment in the career executive
service a permanent one. Petitioner does
not possess such eligibility, however, it
cannot be said that his appointment to
the position was permanent.
Security of tenure in the career executive
service, which presupposes a permanent
appointment, takes place upon passing
the CES examinations administered by
the CES Board x x x.
Petitioner undisputedly lacked CES
eligibility. Thus, he did not hold the
position of AGMO in a permanent
capacity or acquire security of tenure in
that position. Otherwise stated, his
appointment was temporary and "co-
terminus with the appointing authority."
9. G.R. No. 93711 February 25,
1991
D R . E M I LY M . M A R O H O M B S A R ,
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.:
Doctrine: The respondent cannot use
the device of an ambiguous
designation to go around the security
of tenure principle.
Facts: On March 22, 1988, the petitioner
was designated as officer-in-charge of
the Office of the Vice-Chancellor for
Academic Affairs (OVCAA) of MSU in a
concurrent capacity with her position then
as Vice-President for External Studies.
On January 2, 1989, the Office of the
Vice-President for External Studies was
merged with the OVCAA and, as such,
the functions of the former were to be
exercised by the latter. The petitioner was
appointed acting Vice-Chancellor for
Academic Affairs on the same day.
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 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.
Issue: 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.
Ruling: NO
the intent to make the petitioner serve at
the pleasure of the respondent MSU
President is obvious. The petitioner is a
career official of MSU for over 27 years.
She was Vice-President for External
Studies since 1982. On March 22, 1988,
she was given an additional assignment
as Officer-in-Charge of the Office of the
Vice-Chancellor for Academic Affairs
concurrently with the permanent position
as Vice-President for External Studies.
About nine months later, the Vice-
Presidency for External Studies was
"merged" with the Vice-Chancellorship for
Academic Affairs. At the same time, the
petitioner was appointed acting Vice-
Chancellor for Academic Affairs.
The effect, therefore, was to abolish the
petitioner's permanent office 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.
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.
No less than the Secretary of Education,
Culture and Sports, Secretary Isidro D.
Cariño 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
in-charge 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.
10.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.
[G.R. No. 93023. March 13, 1991.]
Ponente: CRUZ, J
DOCTRINE:
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
eligible. 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.
FACTS:
Petitioner Tomas D. Achacoso was
appointed Administrator of the Philippine
Overseas Employment Administration.
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 "with
deep regrets." The Secretary of Labor
requested him to turn over his office to
the Deputy Administrator as officer-in-
charge. In a letter, 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. Petitioner was informed thereof
the following day and was again asked to
vacate his office. He filed a motion for
reconsideration but this was denied.
PETITIONER’S CLAIM:
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. 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. That in view of the security of
tenure enjoyed by the said 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. That since his
removal was illegal, there was no
vacancy in the disputed office to which
respondent Sarmiento could have been
validly appointed.
RESPONDENT’S CLAIM:
That the petitioner himself is not a career
executive service official entitled to
security of tenure. That the Civil Service
Commission certifies 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. The CSC
further certifies that Mr. Achacoso was
not appointed to a rank in the CES and is
not therefore a member of the Career
Executive Service. 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.
ISSUE:
Whether or not petitioner was appointed
in permanent nature and thus enjoys
security of tenure?
RULING:
NO. 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 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
eligible. The appointment extended to
him cannot be regarded as permanent
even if it may be so designated. The
purpose of an acting or temporary
appointment is to prevent a hiatus in the
discharge of official functions by
authorizing a person to discharge the
same pending the selection of a
permanent or another appointee. The
person named in an acting capacity
accepts the position under the condition
that he shall surrender the office once he
is called upon to do so by the appointing
authority. In 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. And
even if the appointment lasts for more
than twelve months, it will still not make
the appointment permanent simply
because he lacks the necessary eligibility
to the position at the time of the appoints
and up to the day of the termination of his
appoint, he still lacks the said eligibility.
11. GENEROSO R. SEVILLA, petitioner,
vs. THE HON. COURT OF APPEALS
AND NERITO L. SANTOS, respondents
G.R. No. 88498. June 9, 1992
GRIÑO-AQUINO, J.:
DOCTRINE: Appointment is the selection
by the proper authority of an individual
who is to exercise the functions of an
office. Designation, on the other hand,
connotes merely the imposition of
additional duties, upon a person already
in the public service by virtue of an earlier
appointment or election. 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.
FACTS: On August 18, 1986, the then
O ff i c e r - i n - c h a r g e ( O I C M a y o r ) o f
Cabanatuan City, Cesar Vergara,
appointed defendant-appellant Santos as
city engineer of Cabanatuan City.
On that very same day, a memorandum
informing petitioner-appellee Sevilla of
the appointment of defendant-appellant
Santos was sent by the then OIC Mayor.
As petitioner-appellee Sevilla was on
leave at the time, the memorandum was
received on his behalf by Anita de
Guzman, the administrative officer of the
Department of Public Works and
Highways (DPWH) Office of Cabanatuan
City, where petitioner-appellee Sevilla
also holds office.
A few months later, the Minister of Public
Works and Highways, Rogaciano
Mercado, designated Sevilla as
Acting District Engineer of Pasay City. He
served in that capacity for a little over two
months or until he was removed on
February 3, 1987 by the new DPWH
Secretary, Jesus Jayme, forcing him to
return to the Cabanatuan City Engineer's
Office which, however, was already
occupied by Nerito Santos.
He filed a petition for quo warranto
against defendant-appellant Santos
before the RTC of Cabanatuan City,
Branch 27. In his quo warranto petition,
Sevilla argued that, being a presidential
appointee, he could not be removed from
office by an OIC mayor. And, even
supposing that the OIC mayor had such
authority, his (Sevilla's) separation from
office was illegal because none of the
grounds for the separation/replacement
of public officials and employees set forth
in Section 3 of Executive Order No.
17 was cited to justify the termination of
his service.
The lower court rendered the impugned
decision reinstating petitioner-appellee
Sevilla and entitling him to payment of
vacation and sick leaves for the duration
of his absence, and consequently ousting
respondent Nerito Santos from the
position of City Engineer.
On appeal, the CA dismissed the petition
for quo warranto and held that by
accepting another office, Sevilla in effect
voluntarily surrendered his former office,
and was thereby precluded from
maintaining a quo warranto action against
Santos. When he accepted the position in
Pasay City, he lost his right to the position
in Cabanatuan City. The Court ruled that
Santos' appointment was valid because it
was confirmed by Minister Rogaciano
Mercado of the Ministry of Public Works
and Highways.
Sevilla then filed this petition for review
alleging that the CA erred: in not applying
the provisions of Executive Order No. 17;
In not considering his appointment as
acting city engineer of Cabanatuan City
as a specie of permanent appointment
covered by civil service security of tenure
and outside the doctrine enunciated in
Austria vs. Amante (79 Phil. 790) cited by
the respondent court as basis of its
decision.
ISSUE: Whether or not an officer who
was appointed to an office in an "acting"
capacity, bring a quo warranto action
against the permanent appointee to the
position.
HELD: The petition is devoid of merit. An
"acting" appointment is merely temporary,
one which is good only until another
appointment is made to take its place
(Austria vs. Amante, 79 Phil. 784).
Hence, petitioner's right to hold office as
"Acting City Engineer of Cabanatuan
City" was merely temporary. It lapsed
upon the appointment of Nerito Santos as
the permanent city engineer of
Cabanatuan City on August 18, 1986.
Petitioner was the incumbent city
engineer of Palayan City when he
designated as Acting City Engineer of
Cabanatuan City. There is a difference
between an appointment and a
designation. Appointment is the selection
by the proper authority of an individual
who is to exercise the functions of an
office. Designation, on the other hand,
connotes merely the imposition of
additional duties, upon a person already
in the public service by virtue of an earlier
appointment or election. 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.
Consequently, the designation of
petitioner as Acting City Engineer of
Cabanatuan City merely imposed upon
him the additional functions of the City
Engineer of Cabanatuan City on top of
his regular duties as City Engineer of
Palayan City but he may not lay such a
claim to the position of City Engineer of
Cabanatuan City for he holds no
appointment to the latter office.
The appointing authority in this particular
case is the Mayor of Cabanatuan City
(B.P. Blg. 337 or the Local Government
Code which provides that "the city
engineer shall be appointed by the city
mayor, subject to civil service law, rules
and regulations"). The appointment of
Santos by OIC City Mayor Vergara was
valid and binding for it was confirmed by
the Minister of Public Works and
Highways, and approved by the Civil
Service Commission.
An action for quo warranto may be
commenced by "a person claiming to be
entitled to a public office or position
usurped or unlawfully held or exercised
by another" (Sec. 6, Rule 66, Rules of
Court). Inasmuch as the petitioner does
not aver that he is entitled to the office of
City Engineer of Cabanatuan City and
that Nerito L. Santos is a mere usurper of
said office, the Court of Appeals
committed no reversible error in
dismissing petitioner's action for quo
warranto. Petitioner's ouster upon, and by
virtue of, Santos' appointment as City
Engineer of Cabanatuan City, was not
illegal for the petitioner's right to
discharge the functions of Acting City
Engineer of Cabanatuan City was
extinguished when a permanent
appointment to the same office was made
in favor of the private respondent,
Engineer Nerito L. Santos.
WHEREFORE, the petition for review is
DENIED. The decision of the Court of
Appeals dismissing petitioner's action for
quo warranto is AFFIRMED. Costs
against the petitioner.
12. FELIXBERTO C. STA. MARIA v.
SALVADOR P. LOPEZ
GR No. L-30773, Feb 18, 1970
Santos, J.
Doctrine: A transfer that results in
promotion or demotion, advancement or
reduction or a transfer that aims to "lure
the employee away from his permanent
position", cannot be done without the
employee's consent.
FACTS:
Petitioner Felixberto Sta Maria, a
professor of English and Comparative
Literature (formerly Dean of the UP
College in Baguio), was elected Dean of
the College of Education on May 5, 1967
by the Board of Regents, on nomination
of the UP President. His appointment as
such Dean was for a five-year term,
"effective May 16, 1967 until May 17,
1972, unless sooner terminated, with all
the rights and privileges as well as the
duties and obligations attached to the
position in accordance with the rules and
regulations of the University and the
Constitution and laws of the Republic of
the Philippines.
In 1969, the graduate and undergraduate
students of the UP College of Education
presented a number of demands having a
bearing on the general academic
program and the physical plant and
services, with a cluster of special
demands. In response, President Lopez
created a committee composed of 8
graduate students, two undergraduate
students, and four faculty members. As a
result of the dialogues and
recommendations by Sta. Maria to the
president, the students were not
appeased.
The students went on to boycott their
classes which infected the other colleges
and the newly installed members of the
UP Student Council voted to support the
education students' strike. Until the day
that all academic activity in the university
came to a complete stand still so that the
UP President called a meeting of the
faculty of the College of Education. Those
present gave him a vote of confidence
(40 in favor, 7 abstained) to resolve the
issue on hand as he sees fit.
President Lopez issued the transfer order
herein challenged, Administrative Order
77. That order, addressed to Dean Sta.
Maria, which provides for the transfer of
Petitioner from his post of Dean, College
of Education, University of the Philippines
(UP), to the Office of respondent UP
President Salvador P. Lopez, there to
become Special Assistant in charge of
public information and relations with the
rank of Dean, without reduction in salary,
in the interest of the service. Respondent
President Lopez appointed ad
interim Professor Nemesio R. Ceralde as
"acting Dean of the College of Education.
Respondent claims that Petitioner was
not removed; he was just temporarily
assigned to another position.
ISSUE:
WON the transfer of petitioner constitutes
removal
HELD:
Yes. A dean of a UP college holds a non-
competitive or unclassified civil service
position. As such, and upon the
provisions of his contract of employment,
he is protected by constitutional and
statutory provisions on security of term.
He cannot be removed during the term
except for cause and after prior hearing
and investigation. Which requisites are
also embodied in the university charter
and in the university code.
A transfer is a "movement from one
position to another which is of equivalent
rank, level or salary, without break in
service." Promotion is the "advancement
from one position to another with an
increase in duties and responsibilities as
a u t h o r i z e d b y l a w, a n d u s u a l l y
accompanied by an increase in salary." A
transfer that results in promotion or
demotion, advancement or reduction or a
transfer that aims to "lure the employee
away from his permanent position",
cannot be done without the
employee's consent.
The transfer of the Petitioner was a
demotion. First, Deanship in a university,
being an academic position which
requires learning, ability and scholarship,
is more exalted than that of a special
assistant who merely assists the
President, as the title indicates. The
special assistant does not make
authoritative decisions. Second. The
position of dean is a line position where
the holder makes authoritative decisions
in his own name and responsibility. A
special assistant does not rise above the
level of staff position. Third. The position
of dean is created by law, the university
charter, and cannot be abolished even by
the Board of Regents. That of special
assistant, upon the other hand, is not so
provided by law; it was a creation of the
university president. It will not avail
respondents any to say that Sta. Maria
retained "the rank of Dean". In actual
administrative practice, the terms "with
rank of" dean is meaningless. He is no
dean at all.
13.NORBERTO ORCULLO, JR. VS.
CIVIL SERVICE COMMISSION AND
COORDINATING COUNCIL OF THE
PHILIPPINE ASSISTANCE PROGRAM
G.R. No. 138780 May 22, 2001
Ponente: Justice Santiago Kapunan
DOCTRINE: The co-terminous status of
an officer or employee may be classified
as follows: [a] co-terminous with the
project, i.e., when the appointment is
coexistent with the duration of a particular
project for which purpose employment
was made or subject to the availability of
funds for the same; [b] co-terminous with
the appointing authority, i.e., when the
appointment is co-existent with the tenure
of the appointing authority or at his
pleasure; [c] co-terminous with the
incumbent, i.e., when the appointment is
co-existent with the appointee, in that
after the resignation, separation or
termination of the services of the
incumbent ,the position shall be deemed
automatically abolished; and [d]
coterminous with a specific period, i.e.,
the appointment is for a specific period
and upon expiration thereof, the position
is deemed abolished.
FACTS: Petitioner Norberto Orcullo, Jr.
was employed by the Coordinating
Council of the Philippine Assistance
Program (CCPAP)-BOT Center as Project
Manager IV. His employment was
contractual and co-terminous with the
said project which was to end on January
30, 2000 – more than three (3) years
after the effectivity of his appointment.
However, his employment with the
respondent was cut short when he was
terminated six (6) months after his
employment due to his unsatisfactory
performance and his inability to work with
the other staff. This event led to Orcullo’s
filing of an appeal to the respondent Civil
Service Commission questioning his
dismissal, but the latter dismissed the
same. A motion for reconsideration was
likewise denied, hence this case.
ISSUE: Whether or not employees in the
public service, regardless of their status
of employment, are protected by the
tenurial security right embodied in the
Constitution.
RULING: NO. Petitioner’s employment
with CCPAP-BOT Center is contractual
and co-terminous – a non-career service
classification of positions in the Civil
Service – whose tenure is limited to a
period specified by law, or which is
coterminous with that of the appointing
authority or subject to his pleasure, or
which is limited to the duration of a
particular project for which purpose
employment was made. In the case at
bar, petitioner’s employment is co-
terminous with the PAPS project, he
nevertheless serves at the pleasure of
the appointing authority as this is clearly
stipulated in his employment contract.
Furthermore, the phrase in the
employment contract of Orcullo "unless
terminated sooner" means that his
contractual job as Project Manager IV
from March 11, 1996 to January 30, 2000
could end anytime before January 30,
2000 if terminated by the other
contracting party-employer CCPAP –
which happened in this case due to the
loss of trust and confidence of the
appointing authority on him because of
his unsatisfactory performance and his
inability to work with the other staff.
14. CADIENTE vs SANTOS
MEDARDO AG.
CADIENTE, petitioner, vs. LUIS T.
SANTOS, City Mayor of Davao City,
MAXIMINO ASISTIDO, City Treasurer
of Davao City, FELIX N. PEPITO, City
Auditor of Davao City, and ATTY.
VICTOR CLAPANO, respondents.|||
G.R. No. L-35592. June 11, 1986
ALAMPAY, J p
DOCTRINE:
The tenure of officials holding primarily
confidential position ends upon loss of
confidence, because their term of office
lasts only as long as confidence in them
endures, and thus their cessation
involves no removal.
FACTS:
Petitioner Cadiente was appointed by
then Mayor Elias B. Lopez as City Legal
Officer of Davao City. The appointment
was duly attested to and/or approved as
“permanent” by the CSC under Sec.
24(b) of RA 2260. The new and then
incumbent City Mayor Luis T. Santos,
herein respondent, sent a letter to
petitioner advising the latter that his
services as City Legal Officer of Davao
City are dispensed with effective upon
receipt of said letter on the ground that
the position of City Legal Officer was
primarily confidential in nature.
Petitioner appealed to the CSC, which
rendered its decision holding that the
termination and or dismissal of petitioner
is “without cause and without due
process” and that the position of City
Legal Officer is not included among those
positions enumerated in Sec. 5 of RA
2260 as belonging to the non-competitive
service.
The City Council of Davao City
subsequently passed Resolution No. 210,
series 1972, considering and recognizing
herein petitioner Atty. Medardo Ag.
Cadiente, as the rightful City Legal Officer
of Davao City. Despite this resolution, the
public respondents in this case who are
the City Mayor, the City Treasurer, and
the City Auditor of Davao City, Still
declined and refused to recognize
petitioner as the one entitled to the
disputed position of City Legal Officer of
Davao City.
Meanwhile, in an Indorsement, the CSC
returned the appointment of respondent
Clapano to respondent City Mayor with
the information that said office (CSC)
overlooked the fact that the appointee
was more than 57 years old at the time of
his appointment and, therefore, authority
for his appointment be first secured from
the Office of the President pursuant to
Sec. 6 of RA 728, as reinforced by Sec.
5, Civil Service Rule IV, which states that
“no person shall be appointed or
reinstated in the service if he is already
57 years of age, unless the President of
the Philippines… determines that he
possesses special qualifications and his
services are needed.
Petitioner thus filed for mandamus, quo
warranto with preliminary injunction
against herein respondents, which was
dismissed on the ground:
a. Mun. Attorney, Provincial Attorney
and City Legal Officer
are by their nature,
primarily confidential
and therefore, belong
to the non-competitive
service because the
function attached to the
office requires trust and
confidence of the
appointing authority.
ISSUE: WON the position of City Legal
Officer is one primarily confidential in
nature, which will render the termination
of Cadiente valid?
HELD: YES!
As held in the case of Claudio vs Subido,
the position of a City Legal Officer is one
requiring that utmost confidence on the
part of the mayor be extended to said
officer. The relationship existing between
a lawyer and his client, whether a private
individual or a public officer, is one that
depends on the highest degree of trust
that the latter entertains for the counsel
selected. As stated in the case of Pinero
vs Hechanova, Primarily Confidential
denotes not only confidence in the
aptitude off the appointee for the
duties of the office but primarily close
intimacy which insures freedom of
intercourse, without embarrassment
on freedom from misgivings of
betrayals of personal trust on
confidential matters of state.
The tenure of officials holding primarily
confidential positions ends upon loss of
confidence, because their term of office
lasts only as long as confidence in them
endures; and thus their cessation
involves no removal.
In the case at bar, when the respondent
City Mayor of Davao terminated the
services of the petitioner, he was not
removed or dismissed. There being no
removal or dismissal it could not,
therefore, be said that there was a
violation of the constitutional provision
that “no officer or employee in the civil
service shall be suspended or dismissed
except for cause as provided by law”.
“The tenure of officials holding primarily
confidential position ends upon loss of
confidence, because their term of office
lasts only as long as confidence in them
endures, and thus their cessation
involves no removal” (JBL Reyes, Corpus
vs Cuaderno).
15. Dr. Nenita Palma-Fernandez vs. Dr.
Adriano De La Paz
DOCTRINE: A removal without cause is
violative of the Constitutional guarantee
that "no officer or employee of the civil
service shall be removed or suspended
except for cause provided by law
FACTS: Petitioner Dr. Nenita Palma-
Fernandez was extended a permanent
appointment to the position of “Chief of
Clinics” at the Hospital ng Bagong
Lipunan by then Minister of Health and
Chairman of the Board of Governors of
the Center, Jesus Azurin.
However, previous to this appointment,
petitioner already occupied the positions
of Medical Specialist I and Medical
Specialist II, and had been designated as
Acting Chief of Clinics unto the date of
her permanent appointment of Chief of
Clinics.
Later, the new organisational structure of
the Centre retitled the position of Chief of
Clinics to Assistant Director for
Professional Services. In partial
implementation of this new set-up,
respondent Dr. Adriano de la Paz, as
Medical Center Chief, issued Hospital
Order No. 30, designating petitioner as
Assistant Director of Professional
Services. As such, she continued to
exercise direct control and supervision
over all heads of departments in the
Medical Center.
In January 1987, Executive Order No.
119 known as the "Reorganization Act of
the Ministry of Health" was promulgated.
Respondent De la Paz, as Medical
Center Chief, then designated
respondent Dr. Aguila, who was then
Medical Specialist I, as Assistant Director
for Professional Services "vice Dr. Nenita
Palma-Fernandez, who will be transferred
to the Research Office “in the interest of
the hospital service.”
On the same date, Hospital Order No. 22
was issued by respondent whereby
petitioner was relieved of her present
duties and responsibilities as Chief of
Clinic and was transferred to the
Research Office.
Upon receipt, petitioner filed a letter-
protest with the Secretary of Health, and
furnished copies to respondents De la
Paz and Aguila, including the
Commissioner of Civil Service and the
Chairman of the Government
Reorganisation Commission.
Failing to secure an action on her protest
within a month, petitioner filed a Petition
for Quo Warranto with Preliminary
Injunction against respondents, which led
t o t h e i s s u a n c e o f a Te m p o r a r y
Restraining Order enjoining the
implementation of the aforementioned
Hospital Orders.
ISSUE: Whether de la Paz has the power
or authority to issue the two hospital
orders
RULING: No. Since the East Avenue
Medical Center is one of the National
Health Facilities attached to the
Department of Health, the power to
appoint and remove subordinate officers
and employees, like petitioner, is vested
in the Secretary of Health, not the
Medical Center Chief. The latter's
function is confined to recommendation.
Thus, Section 79 (D). of the Revised
Administrative Code provides:
Section 79 (D). Power to appoint and
remove.— The Department Head, upon
the recommendation of the Chief of the
bureau or office concerned, shall appoint
all subordinate officers and employees
whose appointment is not expressly
vested by law in the President of the
Philippines, and may remove or punish
them, except as especially provided
otherwise, in accordance with the Civil
Service Law...
The Department Head also may,
from time to time, in the interest of the
service, change the distribution among
the several bureaus and offices of his
Department of the employees or
subordinates authorized by law.
Respondent Medical Center
Chiefs argument that petitioner was not
appointed but was merely transferred in
the interest of the public service to the
Research Office pursuant to Section 24
(c) of Presidential Decree No. 807, or the
Civil Service Decree of the Philippines
1 will not alter the situation. Even a
transfer requires an appointment, which
is beyond the authority of respondent
Medical Center Chief to extend, supra.
Besides, the transfer was without
petitioner's consent, was tantamount to
removal without valid cause, and as such
is invalid and without any legal effect
(Garcia, et al. vs. Lejano, et al., 109 Phil.
116). A removal without cause is violative
of the Constitutional guarantee that "no
officer or employee of the civil service
shall be removed or suspended except
for cause provided by law.
16. Alconera vs Pallanan
Doctrine: The misconduct is grave if it
involves any of the additional elements of
corruption, willful intent to violate the law,
or to disregard established rules, all of
which must be established by substantial
evidence, and must necessarily be
manifest in a charge of grave misconduct.
—Misconduct has been defined as “a
transgression of some established and
definite rule of action, more particularly,
unlawful behavior or gross negligence by
a public officer.” The misconduct is grave
if it involves any of the additional
elements of corruption, willful intent to
v i o l a t e t h e l a w, o r t o d i s r e g a r d
established rules, all of which must be
established by substantial evidence, and
must necessarily be manifest in a charge
of grave misconduct.
Facts: An administrative complaint was
filed before the for Grave Misconduct and
Making Untruthful Statements filed by
Atty. Virgilio P. Alconera against Alfredo
Pallanan, Sheriff IV, assigned at the
Regional Trial Court (RTC), Branch 36 in
General Santos City.
Atty. Alconera was the counsel for Morito
Rafols, the defendant in an unlawful
detainer case. The court ruled against
Rafols, Alconera filed a Motion for
Reconsideration, which was denied.
Pallanan filed a Motion for Execution,
which the court granted. Hence, Sheriff
Palanan then proceeded to execute the
Motion for execution. Through phone,
Alconera explained to the Sheriff that the
execution is premature because he has a
pending motion for reconsideration. After
having received the order of denying his
motion. Alconera went to the RTC Branch
with his daughter and confronted the
Sheriff. The face-off escalated into a
heated argument caught on video. It was
complainant’s daughter, Shyla Mae
Zapanta, who is coincidentally his office
clerk, who filmed the incident.
Alconera filed a complaint for grave
misconduct against the Sheriff for grave
misconduct before the Supreme Court.
The case was referred to Office of Court
Administrator. He averred that the duty of
a court sheriff in enforcing a writ of
execution is ministerial, and without a
TRO enjoining it, a sheriff is duty bound
to implement it. Subsequently, Pallanan
filed for grave misconduct and violation of
Code of Ethics against Alconera for
allegedly making a threat that there will
be bloodshed if respondent’s party
pushes through with the implementation
of the writ. The court recommended that
the respondent Sheriff be admonished.
Issue: Whether or not respondent can be
held administratively liable for grave
misconduct and false testimony
Held: The Court said that absent a TRO,
an order of quashal, or compliance with
Sec. 19, Rule 70 of the Rules of Court,
respondent sheriff has no alternative but
to enforce the writ. The S.C. did not find
the sheriff guilty of the charge of grave
misconduct. He did not enforce the writ of
execution because there was still a
pending Motion for Reconsideration
before the trial court. S.C. said that
misconduct has been defined as “a
transgression of some established and
definite rule of action, more particularly,
unlawful behavior or gross negligence by
a public officer.” The misconduct is grave
if it involves any of the additional
elements of corruption, willful intent to
v i o l a t e t h e l a w, o r t o d i s r e g a r d
established rules, all of which must be
established by substantial evidence, and
must necessarily be manifest in a charge
of grave misconduct. In this case, there
was no element of misconduct
established against the accused. The
sheriff’s duty in the execution of a writ is
purely ministerial; he is to execute the
order of the court strictly to the letter. He
has no discretion whether to execute the
judgment or not. When the writ is placed
in his hands, it is his duty, in the absence
of any instructions to the contrary, to
proceed with reasonable celerity and
promptness to implement it in accordance
with its mandate. It is only by doing so
could he ensure that the order is
executed without undue delay. This holds
especially true herein where the nature of
the case requires immediate execution.