Debulgado v CSC - Appointment [GMA of PPA]

[DISQUALIFICATIONS (DEBULGADO V. CSC) – APPOINTMENT (GM OF PPA V. MONSERATE)] PUBOFF

Table of ContentsDebulgado v. CSC..........................................................1

CIVIL SERVICE COMMISSION, petitioner, vs. PEDRO O. DACOYCOY....................................................................2

DANTE V. LIBAN, REYNALDO M. BERNARDO, and SALVADOR M. VIARI, Petitioners, vs. RICHARD J. GORDON.......................................................................5

FELIMON LUEGO, vs. CIVIL SERVICE COMMISSION and FELICULA TUOZO.......................................................12

Regis vs Osmena.........................................................13

TOMAS D. ACHACOSO vs CATALINO MACARAIG and RUBEN D. TORRES.....................................................15

Province of Camsur vs CA, Tito Dato..........................16

GLORIA v. HON. SALVADOR DE GUZMAN, ROSARIO CERILLO, and 20 other ppl.........................................17

PLM v. IAC...................................................................19

Dr. Emily Marohombsar v. Ahmad Alonto Jr. (President of Mindanao State Univ.) and Corazon Batara (1991)....21

MATIBAG v BENIPAYO...............................................22

Padilla v. CSC..............................................................24

CSC vs. SATURNINO DE LA CRUZ [2004]..................25

CIVIL SERVICE COMMISSION V. ENGR. DARANGINA26

Corpuz v. CA Digest By LA Celebrado.........................27

LAPINID V. CSC (1991)...............................................28

General Manager of PPA, and Anino v. Monserate.....30

Debulgado v. CSC26 September 1994Feliciano, J.

Facts:1. Rogelio Debulgado is the incumbent Mayo of San Carlos City, Negros

Occidental.2. He appointed his wife Victoria as General Services Officer of the City

Government.3. Before her promotion, she had been in the service of the City

Government for 32 years.4. Congressman Carmona questioned the appointment.

Issue/Held:1. WON the appointment is valid. NO.

Ratio:1. The prohibitory norm against nepotism in the public service is set out

in Section 59, Book V of the Revised Administrative Code of 1987 (also known as E.O. No. 292).1

1 Sec. 59. Nepotism — (1) All appointments in the national, provincial, city and municipal governmentsor in any branch or instrumentality thereof, including government-owned or controlled corporations, made in favor of a relative of the appointing or recommending authority, or of the chief of the bureau or office, or of the persons exercising immediate supervision over him, are hereby prohibited.As used in this Section the word "relative" and members of the family referred to are those related within the third degree either of consanguinity or of affinity.

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[DISQUALIFICATIONS (DEBULGADO V. CSC) – APPOINTMENT (GM OF PPA V. MONSERATE)] PUBOFFThe prohibition is comprehensive. It refers to “all

appointments” whether original or promotional. Firstly, it explicitly covers "all appointments", without seeking to make any distinction between differing kinds or types of appointments. Secondly, Section 59 covers all appointments to the national, provincial, city and municipal government, as well as any branch or instrumentality thereof and all government owned or controlled corporations. Thirdly, there is a list of exceptions set out in Section 59 itself (persons employed in a confidential capacity, teachers, physicians, and members of the AFP). The list appears to us to be a closed one, at least closed until lengthened or shortened by Congress.

To limit the thrust of the prohibition against nepotism to the appointment issued at the time of initial entry into government service, and to insulate appointments subsequently issued would be to render the prohibition meaningless and toothless.

[G.R. No. 135805. April 29, 1999]

CIVIL SERVICE COMMISSION, petitioner, vs. PEDRO O. DACOYCOY, respondent.

Facts [November 29, 1995] George P. Suan, a Citizens Crime Watch

Vice-President, Allen Chapter, Northern Samar, filed with the Civil Service Commission, Quezon City, a complaint against Pedro O. Dacoycoy, for habitual drunkenness, misconduct and nepotism

Civil Service Regional Office No. 8, Tacloban City, found a prima facie case against respondent and issued the corresponding formal charge against him.

After a formal investigation, the Civil Service Commission promulgated its resolution finding respondent Pedro O. Dacoycoy guilty of nepotism on two counts as a result of the appointment of his two sons, Rito and Ped Dacoycoy, as driver and utility worker, respectively, and their assignment under his immediate supervision and control as the Vocational School Administrator of

Balicuatro College of Arts and Trades, and imposed on him the penalty of dismissal from the service.

[February 25, 1997] respondent Dacoycoy filed a motion for reconsideration; this was denied.

CA: reversed the decision and set aside the decision of the CSCIssue

1. WON Dacoycoy was guilty of nepotism? Yes. The law defines nepotism[9] as follows:

o Sec. 59. Nepotism. (1) All appointments to the national, provincial, city and municipal governments or in any branch or instrumentality thereof, including government owned or controlled corporations, made in favor of a relative of the appointing or recommending authority, or of the chief of the bureau or office, or of the persons exercising immediate supervision over him, are hereby prohibited.As used in this Section, the word relative and members of the family referred to are those related within the third degree either of consanguinity or of affinity.(2) The following are exempted from the operations of the rules on nepotism: (a) persons employed in a confidential capacity, (b) teachers, (c) physicians, and (d) members of the Armed Forces of the Philippines: Provided, however, That in each particular instance full report of such appointment shall be made to the Commission.

Under the definition of nepotism, one is guilty of nepotism if an appointment is issued in favor of a relative within the third civil degree of consanguinity or affinity of any of the following:a) appointing authority;b) recommending authority;c) chief of the bureau or office, andd) person exercising immediate supervision over the

appointee.

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[DISQUALIFICATIONS (DEBULGADO V. CSC) – APPOINTMENT (GM OF PPA V. MONSERATE)] PUBOFF In the last two mentioned situations, it is immaterial who the

appointing or recommending authority is. To constitute a violation of the law, it suffices that an appointment is extended or issued in favor of a relative within the third civil degree of consanguinity or affinity of the chief of the bureau or office, or the person exercising immediate supervision over the appointee.

The circumvention of the ban on nepotism is quite obvious. Unquestionably, Mr. Daclag was a subordinate of respondent Pedro O. Dacoycoy, who was the school administrator. He authorized Mr. Daclag to recommend the appointment of first level employees under his immediate supervision. Then Mr. Daclag recommended the appointment of respondents two sons and placed them under respondents immediate supervision serving as driver and utility worker of the school. Both positions are career positions. The unseen but obvious hand of respondent Dacoycoy was behind the appointing or recommending authority in the appointment of his two sons. Clearly, he is guilty of nepotism.

The Court of Appeals reliance on Debulgado vs. Civil Service Commission, to support its ruling is misplaced. Debulgado never even impliedly limited the coverage of the ban on nepotism to only the appointing or recommending authority for appointing a relative. In Debulgado, we stressed that [T]he basic purpose or objective of the prohibition against nepotism also strongly indicates that the prohibition was intended to be a comprehensive one. The Court was unwilling to restrict and limit the scope of the prohibition which is textually very broad and comprehensive. If not within the exceptions, it is a form of corruption that must be nipped in the bud or bated whenever or wherever it raises its ugly head. As we said in an earlier case what we need now is not only to punish the wrongdoers or reward the outstanding civil servants, but also to plug the hidden gaps and potholes of corruption as well as to insist on strict compliance with

existing legal procedures in order to abate any occasion for graft or circumvention of the law.

2. Who may appeal the decision of the Court of Appeals holding Dacoycoy not guilty of nepotism? It is the CSC itself, not Dacoycoy or George P. Suan, the witness for the government.

The Civil Service Commission has become the party adversely affected by such ruling, which seriously prejudices the civil service system. Hence, as an aggrieved party, it may appeal the decision of the Court of Appeals to the Supreme Court. By this ruling, we now expressly abandon and overrule extant jurisprudence that the phrase party adversely affected by the decision refers to the government employee against whom the administrative case is filed for the purpose of disciplinary action. In other words, we overrule prior decisions holding that the Civil Service Law does not contemplate a review of decisions exonerating officers or employees from administrative charges enunciated in Paredes v. Civil Service Commission; Mendez v. Civil Service Commission; Magpale v. Civil Service Commission; Navarro v. Civil Service Commission and Export Processing Zone Authority and more recently Del Castillo v. Civil Service Commission.

Separate Opinions (with respect to who may appeal; not syllabus issue)

Puno (Concurring)

“As Dacoycoy only impleaded Suan as respondent, the Court of Appeals ordered that the Civil Service Commission should also be impleaded as party respondent. The Court of Appeals then reversed the Commission as it cleared Dacoycoy from the charge of nepotism. The question therefore is whether or not this Court is precluded from reviewing the decision of the Court of Appeals on a petition for certiorari under Rule 45. Again, I submit that this Court has jurisdiction to entertain this review. Indeed, under the Constitution,

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[DISQUALIFICATIONS (DEBULGADO V. CSC) – APPOINTMENT (GM OF PPA V. MONSERATE)] PUBOFFthe jurisdiction of this Court has even been expanded to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government.”“But even without Suan, I submit that the nature of the issue in the case at bar and its impact on the effectiveness of government give the Civil Service Commission the standing to pursue this appeal. The issue in the case at bar is basically a legal one, i.e., the proper interpretation of who can be convicted of nepotism, and undoubtedly, this Court has the authoritative say on how to interpret laws. “

“According to Paredes, Mendez and Magpale, the phrase party adversely affected by the decision refers alone to the respondent government official or employee against whom the administrative case is filed. They excluded from its compass the party complainant whose charge is dismissed. Hence, when the respondent government official or employee is exonerated, the decision is deemed final as the party complainant is precluded from appealing.I find it difficult to agree with the above interpretation which is not only too narrow but is subversive of the essence of our civil service law…The critical question, therefore, is: who has the standing to prevent the violation of this law and protect public interest? I submit that a taxpayer has the standing to bring suit to void nepotic acts for he has an interest that appointments in the civil service shall be made only according to merit and fitness x x x. A taxpayer has a right to good government and good government cannot result from appointments determined by bloodlines…The general rule is that one who has a right to be heard has standing to seek review of any ruling adverse to him. Hence, if a private citizen has the right to file an administrative complaint, he must also have the right to appeal a dismissal of his complaint, unless the law clearly precludes his right of appeal for indubitable policy reasons.”

“There are other disturbing implication if we do not junk the doctrine of non-reviewability of decisions exonerating government officials from charges of nepotism. For one, the doctrine unduly favors officials charged with nepotism, for while we allow further review of their conviction, we disallow

review of their exoneration, regardless of the errors. This distorted rule contravenes our distaste against nepotism, a practice whose continuance can fatally erode faith in government. For another, perpetuating a nepotic act, an evil that should be extirpated wherever found, can never be the intent of our legislators who crafted our Civil Service Law. For still another, completely cutting off access to judicial review goes against the spirit of the 1987 Constitution expanding the jurisdiction of this Court. Putting up borders of non-reviewability weakens the judiciarys checking power. Indeed, shielding abusive administrative actions and decisions from judicial oversight will ultimately erode the rule of law. “

Romero (Dissenting)

“Section 34, Rule XIV of the Omnibus Rules Implementing Book V of Executive Order No. 292 provides the answer as to who may appear before the Commission, thus:Administrative proceedings may be commenced against a subordinate officer or employee by the following officials and employees:

(a) Secretary of department;(b) Head of Office of Equivalent rank;(c) Head of Local Government Unit;(d) Chief of Agency;(e) Regional Director; or(f) Upon Sworn, Written complaint of Any other Person.

[6] (Underscoring supplied)Consequently, the complaint can either be the Secretary of department,

head of office of equivalent rank, head of a local government unit, chief of agency, regional director or any other person or party. The phrase any other party has been understood to be a complainant other than the head of department or office of equivalent rank or head of local government or chiefs of agencies or regional directors.[7] As further illustrated in Sec. 37 of P.D. No. 807:x x x . A complaint may be filed directly with the Commission by a private citizen against a government official or employee x x x.

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[DISQUALIFICATIONS (DEBULGADO V. CSC) – APPOINTMENT (GM OF PPA V. MONSERATE)] PUBOFFThe respondent, on the other hand, is any subordinate officer or

employee. Nowhere can be found, expressly or impliedly, in Section 34 of Rule XIV of Omnibus Rules Implementing Book V of E.O. No. 292, the Commission as one of the parties, either as complainant or respondent in an administrative case. Logically and by necessary implication, it cannot considered either a complainant or a respondent. Expressio unius est exclusio alterius. The express mention of one person, thing or consequence implies the exclusion of all others.[8] Based on the foregoing, there is no other conclusion but that the Civil Service Commission is not a party to an administrative proceeding brought before it… An aggrieved party in an administrative case is the government employee against whom an administrative complaint is filed. The Civil Service Commission is definitely not a government employee. Neither is it an agency against whom an administrative charge is filed. While it may be argued that, in a sense, the government is an aggrieved party in administrative proceedings before the Commission, it nevertheless is not the aggrieved party contemplated under P.D. No. 807 or the Civil Service Law.

G.R. No. 175352

DANTE V. LIBAN, REYNALDO M. BERNARDO, and SALVADOR M. VIARI, Petitioners, vs.RICHARD J. GORDON, Respondent.

Facts:This is a petition to declare Senator Richard J. Gordon (respondent) as having forfeited his seat in the Senate.Petitioners Dante V. Liban, Reynaldo M. Bernardo, and Salvador M. Viari are officers of the Board of Directors of the Quezon City Red Cross Chapter while

respondent is Chairman of the Philippine National Red Cross (PNRC) Board of Governors.Petitioners allege that:- by accepting the chairmanship of the PNRC, respondent has ceased to be a

member of the Senate as provided in Section 13, Article VI of the Constitution, which reads:

SEC. 13. No Senator or Member of the House of Representatives may 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, during his term without forfeiting his seat. Neither shall he be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected.- The Consti prohibition applies based on Camporedondo v. NLRC, which

held that the PNRC is a GOCC.

- Under Flores v. Drilon, incumbent national legislators lose their elective posts upon their appointment to another government office.

- This is a taxpayer’s suit questioning the unlawful disbursement of funds (salaries/compensation) considering that Gordon is not entitled to his office.

Gordon asserts that:- Petitioners have no standing in this petition. This appears to be a quo

warranto action, however, the petitioners do not claim to be entitled to the Senate office of respondent.

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- Assuming it is QW, the petition is barred by prescription. Section 11, Rule 66 of the Rules of Civil Procedure, the action should be commenced within one year after the cause of the public officer’s forfeiture of office. ICAB, Gordon has been working as a Red Cross volunteer for the past 40 years and was already Chairman when he was elected Senator in May 2004. He was first elected Chairman in 2003 and re-elected in 2005.

- Assuming this is a taxpayer’s suit, petitioners failed to show that they suffered some actual damage or threatened injury. Furthermore, no disbursement of public funds is alleged.

- Assuming this is for declaratory relief, original jurisdiction vests in the RTC.

- Lastly, PNRC is not a GOCC, therefore the Consti prohibition does not apply - volunteer services is neither an office nor employment.

Issues:

1. Whether the Philippine National Red Cross (PNRC) is a government- owned or controlled corporation - NO

2. Whether respondent should be automatically removed as a Senator pursuant to Section 13, Article VI of the Philippine Constitution - NO

Ruling:

PNRC is a Private Organization Performing Public Functions

On 22 March 1947, President Roxas signed Republic Act No. 95, otherwise known as the PNRC Charter. The PNRC is a non-profit, donor-funded, voluntary, humanitarian organization, whose mission is to bring timely, effective, and compassionate humanitarian assistance for the most vulnerable without consideration of nationality, race, religion, gender, social status, or political affiliation. The PNRC provides six major services: Blood Services, Disaster Management, Safety Services, Community Health and Nursing, Social Services and Voluntary Service.1. The Philippines established the PNRC for the purpose contemplated in the

1929 Geneva Convention2. In order to be recognized as a National Society, the PNRC has to be autonomous and must operate in conformity with the Fundamental Principles of the Movement (humanity, impartiality, neutrality, independence, voluntary service, unity, and universality).

2 Convention of Geneva of July 29, 1929 for the Amelioration of the Condition of the Wounded and Sick of Armies in the Field (referred to in this Charter as the Geneva Red Cross Convention)

The PNRC is a member National Society of the International Red Cross and Red Crescent Movement (Movement), which is composed of the International Committee of the Red Cross (ICRC), the International Federation of Red Cross and Red Crescent Societies (International Federation), and the National Red Cross and Red Crescent Societies (National Societies).

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The reason for this autonomy is fundamental. To be accepted by warring belligerents as neutral workers during international or internal armed conflicts, the PNRC volunteers must not be seen as belonging to any side of the armed conflict. In the Philippines where there is a communist insurgency and a Muslim separatist rebellion, the PNRC cannot be seen as government-owned or controlled, and neither can the PNRC volunteers be identified as government personnel or as instruments of government policy. Otherwise, the insurgents or separatists will treat PNRC volunteers as enemies when the volunteers tend to the wounded in the battlefield or the displaced civilians in conflict areas.

2. The Philippine government does not own the PNRC. The PNRC does not have government assets and does not receive any appropriation from the Philippine Congress. The PNRC is financed primarily by contributions from private individuals and private entities obtained through solicitation campaigns organized by its Board of Governors, as provided under Section 11 of the PNRC Charter.3

3 SECTION 11. As a national voluntary organization, the Philippine National Red Cross shall be financed primarily by contributions obtained through solicitation campaigns throughout the year which shall be organized by the Board of Governors and conducted by the Chapters in their respective jurisdictions. These fund raising campaigns shall be conducted independently of other fund drives by other organizations.

3. The government does not control the PNRC.

1.1. Under the PNRC Charter4, only six of the thirty members of the PNRC Board of Governors are appointed by the President.

Of the twenty-four members, eighteen are elected by the chapter delegates, and six are elected by the twenty-four members already chosen — a select group where the private sector members have three-fourths majority. Clearly, an overwhelming majority of four-fifths of the PNRC Board are elected or chosen by the private sector members of the PNRC.

Furthermore, the PNRC Board of Governors, which exercises all corporate powers of the PNRC, elects the PNRC Chairman and all other officers of the PNRC.

4 SECTION 6. The governing powers and authority shall be vested in a Board of Governors composed of thirty members, six of whom shall be appointed by the President of the Philippines, eighteen shall be elected by chapter delegates in biennial conventions and the remaining six shall be selected by the twenty-four members of the Board already chosen. x x x.

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1.2. The PNRC Chairman is not appointed by the President or by any subordinate government official. Thus, the PNRC Chairman is not an official or employee of the Executive branch since his appointment does not fall under Section 16, Article VII of the Constitution. Certainly, the PNRC Chairman is not an official or employee of the Judiciary or Legislature. This leads us to the obvious conclusion that the PNRC Chairman is not an official or employee of the Philippine Government. Not being a government official or employee, the PNRC Chairman, as such, does not hold a government office or employment

Under Section 16, Article VII of the Constitution, the President appoints all officials and employees in the Executive branch whose appointments are vested in the President by the Constitution or by law. The President also appoints those whose appointments are not otherwise provided by law. Under Section 16, the law may also authorize the "heads of departments, agencies, commissions, or boards" to appoint officers lower in rank than such heads of departments, agencies, commissions or boards (Rufino v. Endriga):

Under Section 16, Article VII of the 1987 Constitution, the President appoints three groups of officers. The first group refers to the heads of the Executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in the President by the Constitution. The second group refers to those whom the President may be authorized by law to appoint. The third group refers to all other officers of the Government whose appointments are not otherwise provided by law.

Under the same Section 16, there is a fourth group of lower-ranked officers whose appointments Congress may by law vest in the heads of departments, agencies, commissions, or boards. x x x

x x x

In a department in the Executive branch, the head is the Secretary. The law may not authorize the Undersecretary, acting as such Undersecretary, to appoint lower-ranked officers in the Executive department. In an agency, the power is vested in the head of the agency for it would be preposterous to vest it in the agency itself. In a commission, the head is the chairperson of the commission. In a board, the head is also the chairperson of the board. In the last three situations, the law may not also authorize officers other than the heads of the agency, commission, or board to appoint lower-ranked officers.

x x x

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The Constitution authorizes Congress to vest the power to appoint lower-ranked officers specifically in the "heads" of the specified offices, and in no other person. The word "heads" refers to the chairpersons of the commissions or boards and not to their members, for several reasons.

1.3. The PNRC is controlled by private sector individuals, particularly the PNRC Board. Decisions or actions of the PNRC Board are not reviewable by the President. The President cannot reverse or modify the decisions or actions of the PNRC Board. Neither can the President reverse or modify the decisions or actions of the PNRC Chairman. This proves again that the office of the PNRC Chairman is a private office, not a government office.

Under Section 17, Article VII of the Constitution,17 the President exercises control over all government offices in the Executive branch. If an office is legally not under the control of the President, then such office is not part of the Executive branch (Rufino v. Endriga):

The power of control means the power to revise or reverse the acts or decisions of a subordinate officer involving the exercise of discretion.

4. The PNRC is not government-owned but privately owned.

The vast majority of PNRC members are private individuals, including students. Under the PNRC Charter, those who contribute to the annual fund campaign of the PNRC are entitled to membership in the PNRC for one year. Any one between 6 and 65 years of age can be a PNRC member for one year upon contributing P35, P100, P300, P500 or P1,000 for the year. Even foreigners, whether residents or not, can be members of the PNRC.

5. The previous ruling in Camporedondo v. NLRC failed to consider the definition of a GOCC under Section 2(13) of the Introductory Provisions of

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the Administrative Code of 19875. In ruling that the PNRC is a GOCC, the simple test used was whether the corporation was created by its own special charter for the exercise of a public function or by incorporation under the general corporation law. Since the PNRC was created under a special charter, the Court then ruled that it is a government corporation.

However, based on the Administrative Code, a GOCC must be owned by the government, and in the case of a stock corporation, at least a majority of its capital stock must be owned by the government. In the case of a non-stock corporation, by analogy at least a majority of the members must be government officials holding such membership by appointment or designation by the government. Under this criterion, and as discussed earlier, the government does not own or control PNRC.

5 SEC. 2. General Terms Defined. – x x x

(13) Government-owned or controlled corporation refers to any agency organized as a stock or non-stock corporation, vested with functions relating to public needs whether governmental or proprietary in nature, and owned by the Government directly or through its instrumentalities either wholly, or where applicable as in the case of stock corporations, to the extent of at least fifty-one (51) percent of its capital stock: Provided, That government-owned or controlled corporations may be further categorized by the Department of the Budget, the Civil Service Commission, and the Commission on Audit for purposes of the exercise and discharge of their respective powers, functions and responsibilities with respect to such corporations.

On the 2nd issue, considering that PNRC is not a GOCC, Section 13, Article VI of the Philippine Constitution does not apply.

Other issues:

The PNRC Charter is Violative of the Constitutional Proscription against the Creation of Private Corporations by Special Law

The 1935 Constitution, as amended, was in force when the PNRC was created by special charter on 22 March 1947. Section 7, Article XIV of the 1935 Constitution, as amended, reads:

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

The subsequent 1973 and 1987 Constitutions contain similar provisions prohibiting Congress from creating private corporations except by general law. Section 1 of the PNRC Charter, as amended, creates the PNRC as a "body corporate and politic," thus:

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SECTION 1. There is hereby created in the Republic of the Philippines a body corporate and politic to be the voluntary organization officially designated to assist the Republic of the Philippines in discharging the obligations set forth in the Geneva Conventions and to perform such other duties as are inherent upon a National Red Cross Society. The national headquarters of this Corporation shall be located in Metropolitan Manila. (Emphasis supplied)

In short, Congress cannot enact a law creating a private corporation with a special charter. Such legislation would be unconstitutional. Only corporations created under a general law can qualify as private corporations.

The Court in Feliciano v. COA gave the rationale for this constitution provision - to ban private corporations created by special charters, which historically gave certain individuals, families or groups special privileges denied to other citizens.

The PNRC was created through a special charter. However, the elements of government ownership and control are clearly lacking in the PNRC. Thus, it cannot be considered a GOCC in the absence of the essential elements of ownership and control by the government. In creating the PNRC as a corporate entity, Congress was in fact creating a private corporation. However, the constitutional prohibition against the creation of private corporations by special charters provides no exception even for non-profit or

charitable corporations. Consequently, the PNRC Charter 6 , insofar as it creates the PNRC as a private corporation and grants it corporate powers, is void for being unconstitutional.

The other provisions of the PNRC Charter remain valid as they can be considered as a recognition by the State that the unincorporated PNRC is the local National Society of the International Red Cross and Red Crescent Movement, and thus entitled to the benefits, exemptions and privileges set forth in the PNRC Charter. The other provisions of the PNRC Charter implement the Philippine Government’s treaty obligations under Article 4(5) of the Statutes of the International Red Cross and Red Crescent Movement, which provides that to be recognized as a National Society, the Society must be "duly recognized by the legal government of its country on the basis of the Geneva Conventions and of the national legislation as a voluntary aid society, auxiliary to the public authorities in the humanitarian field."

6 Thus, Sections 1,28 2,29 3,304(a),31 5,32 6,33 7,34 8,35 9,36 10,37 11,38 12,39 and 1340 of the PNRC Charter, as amended, are void.

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Petitioners Have No Standing to File this Petition

The petition is an action for quo warranto. Based on the allegations in the petition, it is action for usurpation of public office against a public officer who committed an act which constitutes a ground for the forfeiture of his public office.

Sec 1 Rule 66 ROC:

Section 1. Action by Government against individuals. – An action for the usurpation of a public office, position or franchise may be commenced by a verified petition brought in the name of the Republic of the Philippines against:

(a) A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise;

(b) A public officer who does or suffers an act which by provision of law, constitutes a ground for the forfeiture of his office; or

(c) An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act. (Emphasis supplied)

As a rule, QW is commenced by the Government. However, under Sec. 5 Rule 66, an individual may commence such an action if he claims to be entitled to the public office allegedly usurped by another, in which case he can bring the action in his own name. The person instituting quo warranto proceedings in his own behalf must claim and be able to show that he is entitled to the office in dispute, otherwise the action may be dismissed at any stage. In the present case, petitioners do not claim to be entitled to the Senate office of respondent. Clearly, petitioners have no standing to file the present petition.

Petition likewise fails even if treated as a tax payer’s suit as PNRC is a private organization performing public functions.

In sum, we hold that the office of the PNRC Chairman is not a government office or an office in a government-owned or controlled corporation for purposes of the prohibition in Section 13, Article VI of the 1987 Constitution. However, since the PNRC Charter is void insofar as it creates the PNRC as a private corporation, the PNRC should incorporate under the Corporation Code and register with the Securities and Exchange Commission if it wants to be a private corporation.

Nachura Dissent:

PNRC is a GOCC

- Gave a different interpretation of Section 16, Article XII of the Constitution - that since private corporations cannot have special charters, it follows that Congress can create corporations with special charters only if such corporations are government-owned or controlled.

The PNRC was incorporated under R.A. No 95, a special law. Following this logic, it cannot be anything but a GOCC.

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- Upheld the ruling in Camporendondo:

Rather, crucial in the definition of GOCCC is the reference to the corporation being "vested with functions relating to public needs whether governmental or proprietary." When we relate this to the PNRC Charter, as amended, we note that Section 1 of the charter starts with the phrase, "(T)here is hereby created in the Republic of the Philippines a body corporate and politic to be the voluntary organization officially designated to assist the Republic of the Philippines in discharging the obligations set forth in the Geneva Conventions x x x". It is beyond cavil that the obligations of the Republic of the Philippines set forth in the Geneva Conventions are public or governmental in character. If the PNRC is "officially designated to assist the Republic," then the PNRC is, perforce, engaged in the performance of the government’s public functions.

PNRC is, at the very least, a government instrumentality

Administrative Code of 1987 Section 2(10)

(10) Instrumentality refers to any agency of the National Government not integrated within the department framework, vested with special functions or jurisdiction by law, endowed with some if not all corporate powers, administering special funds, and enjoying operational autonomy, usually through a charter. This term includes regulatory agencies, chartered institutions and government-owned or controlled corporations.

The PNRC is vested with the special function of assisting the Republic of the Philippines in discharging its obligations under the Geneva Conventions. It is endowed with corporate powers. It administers special funds—the contributions of its members, the aid given by the government, the support

extended to it by the Philippine Charity Sweepstakes Office (PCSO) in terms of allotment of lottery draws. It enjoys operational autonomy, as emphasized by Justice Carpio himself. And all these attributes exist by virtue of its charter.

The PNRC Charter does not violate the constitutional proscription against the creation of private corporations by special law

Considering that the PNRC is not a private corporation, but a GOCC or a government instrumentality, then its charter does not violate the constitutional provision that Congress cannot, except by a general law, provide for the formation, organization or regulation of private corporations, unless such corporations are owned or controlled by the Government.

The respondent holds twoincompatible officesin violation of the Constitution

Section 13, Article VI of the Constitution explicitly provides that "no Senator or Member of the House of Representatives may hold any other office or employment in the government, or any subdivision, agency or instrumentality thereof, including [GOCCs] or their subsidiaries, during his term without forfeiting his seat."

A public office is a public trust. It is created for the interest and the benefit of the people. As such, a holder thereof "is subject to such regulations and conditions as the law may impose" and "he cannot complain of any restrictions which public policy may dictate on his holding of more than one office." It is therefore of no avail to petitioner that the system of government in other states allows a local elective official to act as an elected member of the parliament at the same time. The dictate of the people in whom legal

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sovereignty lies is explicit. It provides no exceptions save the two offices specifically cited in the above-quoted constitutional provision. Thus, while it may be said that within the purely parliamentary system of government no incompatibility exists in the nature of the two offices under consideration, as incompatibility is understood in common law, the incompatibility herein present is one created by no less than the constitution itself.

The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the Constitution must not, however, be construed as applying to posts occupied by the Executive officials specified therein without additional compensation in an ex officio capacity as provided by law and as required by the primary functions of said officials’ office. The reason is that these posts do not comprise "any other office" within the contemplation of the constitutional prohibition but are properly an imposition of additional duties and functions on said officials. x x x

x x x x

x x x x The term ex officio means "from office; by virtue of office." It refers to an "authority derived from official character merely, not expressly conferred upon the individual character, but rather annexed to the official position." Ex officio likewise denotes an "act done in an official character, or as a consequence of office, and without any other appointment or authority other than that conferred by the office." An ex officio member of a board is one who is a member by virtue of his title to a certain office, and without further warrant or appointment. x x x

x x x x

The ex officio position being actually and in legal contemplation part of the principal office, it follows that the official concerned has no right to receive additional compensation for his services in the said position. The reason is that these services are already paid for and covered by the compensation attached to his principal office. x x x

The chairmanship of PNRC is not an ex officio capacity.

Nowhere does it say in the law that a member of the Senate can sit in an ex officio capacity as chairman of the PNRC Board of Governors. Chairmanship of the PNRC Board is neither an extension of the legislative position nor is it in aid of legislative duties. Likewise, the position is neither derived from one being a member of the Senate nor is it annexed to the Senatorial position. Stated differently, the PNRC chairmanship does not flow from one’s election as Senator of the Republic.

The fact that the PNRC Chairman of the Board is not appointed by the President and the fact that the former does not receive any compensation do not at all give the said position an ex officio character such that the occupant thereof becomes exempt from the constitutional proscription on the holding of multiple offices.

Hence, Senator Gordon, in assuming the chairmanship of the PNRC Board of Governors while being a member of the Senate, is clearly violating Section 13, Article VI of the Constitution. While we can only hypothesize on the extent of

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the incompatibility between the two offices—as stated in petitioners’ memorandum, Senator Gordon’s holding of both offices may result in a divided focus of his legislative functions, and in a conflict of interest as when a possible amendment of the PNRC Charter is lobbied in Congress or when the PNRC and its officials become subjects of legislative inquiries. Let it be stressed that, as in Adaza, the incompatibility herein present is one created by no less than the Constitution itself.

IN VIEW OF THE FOREGOING, I vote to GRANT the petition.

FELIMON LUEGO, vs. CIVIL SERVICE COMMISSION and FELICULA TUOZO

By Ron San Juan

Facts:

The petitioner Luegowas appointed Administrative Officer 11, Office of the City Mayor, by Cebu City Mayor Solon. The appointment was described in the space provided for in Civil Service Form No. 33, as “permanent" but the Civil Service Commission approved it as "temporary," subject to the following: (1) final action taken in the protest filed by the private respondent Tuozo and another employee, and (2) that 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.

The Civil Service Commission found the Tuozo better qualified than the Luego for the contested position and, accordingly, directed that Tuozo be appointed

to the position in place of Luego, revoking the latter’s appointment in the process. Tuozo was later on appointed by the new mayor.

Issue #1: Was the appointment of the petitioner temporary or permanent? (Permanent)

The appointment of the petitioner was not temporary but permanent and was therefore protected by Constitution. The appointing authority (Mayor Solon) 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. What was temporary was the approval of the appointment, not the appointment itself. And what made the approval temporary was the fact that it was made to depend on the condition specified therein and on the verification of the qualifications of the appointee to the position.

Issue # 2: Whether or not the is CSC 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? (NO)

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 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. Under the Civil Service Law, the Commissioner is not authorized to curtail the discretion of the appointing official on the nature or kind of the appointment to be extended.

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. Such attestation is required merely as a check to assure compliance with Civil Service Laws.

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[DISQUALIFICATIONS (DEBULGADO V. CSC) – APPOINTMENT (GM OF PPA V. MONSERATE)] PUBOFFAppointment 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. In such cases, the confirmation by that body was then considered part of the appointing process, which was held complete only after such confirmation. No similar arrangement is provided for in the Civil Service Decree.

Significantly, 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.

Issue # 3: What is the correct interpretation of the words “approve” and “disapprove” in Section 9(h), Article V of the Civil Service Decree?7

A full reading of the provision will make it clear that all the Commission is actually allowed to do is check whether or not the appointee possesses the

7 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)

appropriate civil service eligibility or the required qualifications. If he does, his appointment is approved; if not, it is disapproved.

Issue #4: Whether or not the next-in-rank rule8 under the Civil Service Rules was applicable. (NO)

This rule is inapplicable because neither of the claimants is next in rank. Moreover, the 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.

Regis vs OsmenaDavide, Jr. J.Facts:

This is a petition for Mandamus to compel respondents to reinstate petitioner to his former position as driver.

In 1958, petitioner was appointed as driver in the Motorized Division of the Cebu Police Department. In the next 5 years, petitioner was re-appointed as “Driver” or “Driver, Civilian Employee” with increases in salary.

Through a termination letter In 1964, he was removed from his position without prior investigation or hearing. The letter stated: “There being no more need for your service as Driver in the Cebu Police Department, your provisional appointment thereto is hereby terminated “

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%. The position of the petitioner, after his

8 "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."

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[DISQUALIFICATIONS (DEBULGADO V. CSC) – APPOINTMENT (GM OF PPA V. MONSERATE)] PUBOFFremoval, was filled up by the respondent City Mayor with the appointment of Eduardo Gabiana, a non-civil service eligible.

After his removal, he wrote letters to the Office of the President and to the CSC protesting his removal and demanding his reinstatement. He was not reinstated by the time this action was filed.

CFI of Cebu: Dismissed the petition on the ground that petitioner's questioned appointment was temporary in nature and, therefore, terminable at the pleasure of the appointing powerIssue: W/N petitioner’s dismissal was valid? NO.Petitioner: His removal on the ground that there was "no more need for your service" was not real and true but a mere pretext, for after his ouster one Eduardo Gabiana, a non-civil service eligible. In the succeeding budget of the City of Cebu more positions of driver were created His removal was not for cause, and it was done without due process.Petitioner further argues that his last appointment of 7 November 1963 was approved under Section 24(c) of R.A. No. 2260 (Civil Service Act of 1959); therefore, it was a provisional and not a temporary appointment. 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. When he became eligible upon the publication of the results of the exam, the City Mayor should have extended to him a permanent appointment. Respondent: Court did not cite any argument of respondent. Court: 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. R.A. No. 2260, Sec 24 (c) and (d):

(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.

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." 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.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. That there was "no more need" for his service was not a valid and lawful cause.

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[DISQUALIFICATIONS (DEBULGADO V. CSC) – APPOINTMENT (GM OF PPA V. MONSERATE)] PUBOFFWe 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

TOMAS D. ACHACOSO vs CATALINO MACARAIG and RUBEN D. TORRES

FACTS: Tomas D. Achacoso was appointed Administrator of the Philippine Overseas Employment AdministrationIn compliance with a request addressed by the President of the Philippines to “all Department Heads, Undersecretaries, Assistant Secretaries, Bureau Heads,” and other government officials, he filed a courtesy resignation.This was accepted by the President, “with deep regrets.”The Secretary of Labor requested him to turn over his office to the Deputy Administrator as officer-in-charge.he protested his replacement and declared he was not surrendering his office because his resignation was not voluntary but filed only in obedience to the President’s directive.On the same date, respondent Jose N. Sarmiento was appointed Administrator of the POEA, vice the petitioner.Achacoso was informed thereof the following day and was again asked to vacate his office.He filed a motion for reconsideration but this was denied. He then came to this Court for relief.

The petitioner invokes security of tenure against his claimed removal without legal cause. Achacoso contends that he is a member of the Career Service of the Civil Service and so enjoys security of tenure, which is 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 reasonsThe 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

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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.

Province of Camsur vs CA, Tito Dato

Facts: Tito Dato was appointed as Private Agent by governor of Camsur. He was thereafter promoted to Assistant Provincial Warden but since he had no civil service eligibility for the position he was appointed to, he could not be legally extended a permanent appointment. Hence, what was extended to him was a temporary appointment which was renewed annually.In 1974, then Governor Alfelor approved the change in Dato's employment status from temporary to permanent upon the latter's representation that he passed the civil service examination for supervising security guards. Said change of status however, was not favorably acted upon by the Civil Service Commission. So he remained on temporary appointment.On March 16, 1976, Tito Dato was indefinitely suspended by Governor Alfelor after criminal charges were filed against him and a prison guard for allegedly conniving and/or consenting to evasion of sentence of some detention prisoners who escaped from confinement.On March 19, 1976, the CSC communicated to the Governor that the status of private respondent Tito Dato has been changed from temporary to permanent, the latter having passed the examination for Supervising Security Guard. The change of status was to be made retroactive to June 11, 1974, the date of release of said examination. In the meantime, the Sangguniang Panlalawigan, suppressed the appropriation for the position of Assistant Provincial Warden and deleted Tito Dato’s name from the petitioner's plantilla. Tito Dato was subsequently acquitted of the charges against him. Consequently, he requested the Governor for reinstatement and backwages. When his request for reinstatement and backwages was not heeded, he filed an action for mandamus before the Regional Trial Court.

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[DISQUALIFICATIONS (DEBULGADO V. CSC) – APPOINTMENT (GM OF PPA V. MONSERATE)] PUBOFFIssue: Whether or not Tito Dato was a permanent employee of petitioner Province of Camarines Sur at the time he was suspended and therefore entitled to reinstatement and backwagesHeld: No. Private respondent does not dispute the fact that at the time he was appointed Assistant Provincial Warden in 1974, he had not yet qualified in an appropriate examination for the aforementioned position. Such lack of a civil service eligibility made his appointment temporary and without a fixed 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 supervising security guard examination, did not ipso facto convert his temporary appointment into a permanent one. In cases such as the one at bench, what is required is a new appointment since a permanent appointment is not a continuation of the temporary appointment — these are two distinct acts of the appointing authority.The Court has defined the parameters within which the power of approval of appointments shall be exercised by the Civil Service Commission. In Luego v. Civil Service Commission, the Court ruled that CSC has the power to approve or disapprove an appointment set before it. It does not have the power to make the appointment itself or to direct the appointing authority to change the employment status of an employee. The CSC can only inquire into the eligibility of the person chosen to fill a position and if it finds the person qualified it must so attest. If not, the appointment must be disapproved. The duty of the CSC is to attest appointments and after that function is discharged, its participation in the appointment process ceases. In the case at bench, CSC should have ended its participation in the appointment of private respondent on January 1, 1974 when it confirmed the temporary status of the latter who lacked the proper civil service eligibility. When it issued the foregoing communication on March 19, 1976, it stepped on the toes of the appointing authority, thereby encroaching on the discretion vested solely upon the latter.

GLORIA v. HON. SALVADOR DE GUZMAN, ROSARIO CERILLO, and 20 other ppl

J. Hermosisima, Jr. G.R. No. 116183October 6, 1995

Digest by Aaron Valdez

FACTS: Private respondents were employees of the Philippine Air Force College of Aeronautics (PAFCA), where the Board of Trustees is vested with authority to appoint officials and employees of the college. The Board of Trustees issued a resolution which decreed that all faculty/administrative employees shall be subject to the required civil service eligibilities in accordance with the civil service law. Such resolution caused the Board of Trustees to issue temporary appointments to respondents because they failed to meet qualification standards for their respective positions.

One of these appointees was Rosario Cerillo, who was appointed Board Secretary II, through a letter from the CSC which emphasized appointments were good and renewable only up to 1992. PAFCA relieved Cerillo because of loss of trust and confidence but was designated as Coordinator for Extension Services.

RA 7605 converted PAFCA into a state college known as the Philippine State College of Aeronautics (PSCA), with the Board of Trustees as the governing body. On December 7, 1992, Col. Julian Loleng, the OIC, informed private respondents they shall be deemed separated upon the expiration of their appointments. Private respondents filed a case for mandamus and reinstatement with the Pasay RTC against DECS Secretary Armand Fabella (replaced by petitioner Ricardo Gloria) to fill up positions in the Board of Trustees.

Petitioners answered that mandamus will not lie to compel reinstatement because reappointment is discretionary on the appointing power and that

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[DISQUALIFICATIONS (DEBULGADO V. CSC) – APPOINTMENT (GM OF PPA V. MONSERATE)] PUBOFFrespondents failed to exhaust administrative remedies. Respondent Judge De Guzman ordered the reinstatement of Rosario Cerillo.

ISSUES: Whether or not the reinstatement of Cerillo could have been the subject of mandamus proceedings – NOCerillo was dismissed because of loss of confidence. The dismissal was not contested nor appealed from by Cerillo. Her dismissal as Board Secretary II could not have been the subject of the petition for mandamus and reinstatement filed before De Guzman. Cerillo'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.

Even granting Cerillo could be validly reinstated as "Coordinator for Extension Services", her reinstatement 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 an inexistent position. This could be the reason 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. 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.

Whether or not reinstatement was proper in respect to Cerillo’s former position as Board Secretary II – NO

Ms. Cerillo had been dismissed from this position for loss of confidence. She did not contest the dismissal possibly because the position of Board Secretary II is primarily confidential and the Board of Trustee found her to be wanting in faithfulness and integrity dismissed her for that reason alone. She accepted the dismissal and when designated as Coordinator for Extension Services, she indicated acceptance by performing acts called for by the designation.

The fact that Cerillo passed the requisite Civil Service Examination after the termination of her temporary appointment is no reason to compel her reappointment. Acquisition of civil service eligibility is not the sole factor for reappointment; other considerations are: performance, degree of education, work experience, training, seniority, and, more importantly, whether or not the applicant enjoys the confidence and trust of the appointing power. The position of Board Secretary II, by its nature, is primarily confidential, requiring "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." 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.

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. Such exercise of the discretionary power of appointment cannot be controlled even by the Court as long as it is exercised properly by the appointing authority.

Whether or not private respondents were properly terminated - YES

The termination of the services of private respondents was proper and legal, it being the consequence of the Board of Trustees' power to appoint. Either the employees' contracts lapsed or their temporary appointments were abrogated by circulars from the Civil Service Commission. This is a necessary consequence of the transition from the Philippine Air Force College of Aeronautics (PAFCA) to the Philippine State College of Aeronautics (PSCA).

There was no termination to speak of. Termination presupposes an overt act committed by a superior officer. At most, Col. Julian (Loleng) gave notice to the petitioners of the expiration of their respective contracts. Petitioners

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[DISQUALIFICATIONS (DEBULGADO V. CSC) – APPOINTMENT (GM OF PPA V. MONSERATE)] PUBOFFappointment or employment simply expired either by its very own terms, or because it may not exceed one year, and because the PAFCA was dissolved and replaced by the PSCA. The notice given by Loleng to the petitioners seems to have been misunderstood by them as an act of dismissal which belongs to the Board of Trustees alone.

Whether or not private respondents are entitled to attorney’s fees – NO

There was merit in the petition, which bars respondents from claiming AF. Further, this was not discussed nor justified in the body of the assailed decision.

PLM v. IACGR No. L-65439 / 13 Nov 1985 / J. Gutierrez Jr. FACTS

Dr. Hernani Esteban was a permanent employee in the government service for 25 years. He was officially connected with the Philippine College of Commerce (now PUP) as it's VP for academic affairs. The BOT abolished the position of VPAA but he continued teaching at the said college until his transfer to the Pamantasan ng Lungsod ng Maynila (PLM) upon invitation of its president, Dr. Consuelo Blanco.

Dr. Esteban was initially extended an ad interim appointment as the VP for Administration in 1973 by Dr. Blanco.

The secretary of the Pamantasan handed him a 'Notification of Confirmation of Temporary Appointment' making his appointment extend until 30 Jun 1974. This was subsequently renewed by the secretary two more times until 1975.

In June 1975 Dr. Esteban received the same notification of renewal of his temporary appointment until 1976, but in July of the year he discovered that he was not included in the list of employees recommended for permanent appointments. He wrote to Dr. Blanco

requesting the conversion of his temporary appointment to a permanent one considering his two and a half years of service.

Dr. Blanco answered unfavorably to his request for reasons unmentioned in the case.

He received on August a 'Notification of Ad Interim Appointment' that he was appointed as Professor III, and further designated him as Director of the Institute of Continuing Education and Community Service. A few days later Dr. Blanco issued a memorandum terminating his appointment as VP for Administration. His appointment effective until June 1976 has been withdrawn before it could be confirmed by the Pamantasan Board of Regents.

Dr. Esteban appealed to the CSC for the protection of his tenure at the Pamantasan.

CSC to the MSB - sadyang magulo dahil walang katapusang MR

On 9 Oct 1975 the CSC ruled that the appointment was of a temporary nature and thus may be terminated at any time at the discretion of the appointing official.

On MR the CSC reversed saying that Dr. Esteban was fully qualified for the position of VP for Administration and certified him for appointment under permanent status.

On MR by the Pamantasan, the CSC then said that the certification should not be interpreted as directing the reinstatement of Dr. Esteban (confusing said the court)

MR by Dr. Esteban of this order was denied, but he asked for another review of his termination after the denial, and also asked for payment of his salaries. The Commission referred the payment of salaries to the university treasurer but again modified its resolution and said that the president did not have any authority to extend an ad interim appointment as only the Board of Regents was empowered to do that under the University Charter. Both parties again filed MRs.

In 1978 PD 1409 created a Merit Systems Board in the CSC to hear and decide cases on personnel matters. The Board required the Pamantasan

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[DISQUALIFICATIONS (DEBULGADO V. CSC) – APPOINTMENT (GM OF PPA V. MONSERATE)] PUBOFFto submit its complete records in appoitnment and termination of Dr. Esteban as VP for Administration.

The Pamantasan did not submit a copy of Board Reso 485 passed 20 June 1973 confiring the ad interim appointments of several academic and non-academic personnel of said university, including Dr. Esteban effective 21 May 1973. The Commissioner directed the Pamantasan to submit any document directly showing that Dr. Esteban was appointed in a permanent capacity, but despite the existence of this resolution, the Pamantasan replied that "we cannot find any document…"

Because of this failure the Commission concluded that his appointment as VP for Administration was approved as permanent. It cited Governemnt of the Philippine Islands vs Martinez that when a party has possession or power to produce the best evidence and withholds it, the presumption is the evidence is withheld for some sinister motive and production with thwart the evil or fraudulent purpose. The Commission declared his termination as illegal and directed the payment of full backwages.

The Pamantasan filed an MR and submitted for the first time Board Reso 485. The Commission denied the MR and said that upon confirmation of the Board the ad interim appointment became permanent.

The Courts, finally

Pamantasan filed a petition for certiorari with the CFI. The CFI reversed the CSC and adopted the earlier ruling holding that Dr. Esteban's appointment was invalid (no authority by the president) though he may be considered a de facto VP up to the date the commission ruled that his appointment was temporary.

On appeal, the IAC reversed the trial court, and ordered his reinstatement with full backwages.

ISSUE W/N Dr. Esteban's appointment is temporary. NO

o But IAC decision modified, instead of full backwages, just 5 years, as is "just and equitable".

RATIO

Dr. Esteban had been extended several ad-interim appointments. But under Philippine law, the term ad interim does not mean the usual "for the meantime". But that is not the meaning under Philippine law. 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 BOR which is originally vested by the University Charter with the power of appointment, is unable to act.

In Summers v. 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.' 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."

Not only is the appointment in question an ad interim appointment, but the same is also a confirmed ad interim appointment. In its Board Reso 485 the Pamantasan BOR verified Dr. Esteban's appointment without condition nor limitation as to tenure.

The Pamantasan argues that all the notices of appointments and renewals were temporary with fixed commencement and termination dates "unless sooner terminated". However, the IAC correctly held that 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

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[DISQUALIFICATIONS (DEBULGADO V. CSC) – APPOINTMENT (GM OF PPA V. MONSERATE)] PUBOFF If Dr. Esteban'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.

Further supporting Dr. Esteban's stand is the list of permanent personnel which was submitted to the Commission by the university president for recognition of their permanent status by the Commission. The permanent status of private respondent's appointment as VP for Administration was recognized by the CSC in its first Indorsement

Quote:

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.

Dr. Emily Marohombsar v. Ahmad Alonto Jr. (President of Mindanao State Univ.) and Corazon Batara (1991)

FACTS

(1) Petitioner is a career employee of Mindanao State University for 27 years. Prior to the controversy, she served as Vice President of External Affairs.

(2) Jan 1989 – Petitioner’s position was merged with the Office of the Vice Chancellor and she was “appointed” as Vice Chancellor by the President (respondent Alonto) in an ACTING CAPACITY.

a. The MSU Board of Regents confirmed this designation in a resolution.

b. Substantially all junior officers under the President were likewise reassigned and designated merely in acting capacities.

(3) Petitioner refused the offer of a different permanent position offered by the President and chose to stay with the Office of the Vice Chancellor. The President replaced her with respondent Corazon Batara.

(4) Petitioner challenges her removal from the position.(5) Side issue: there was a motion to cite the President in contempt

(denied by SC).

ISSUE: WON petitioner can be removed from her position without cause (i.e. was her right to security of tenure violated?)

SC: Security of Tenure violated. Petitioner to be reinstated to her position as Vice Chancellor and made permanent until the end of her three year term or until her tenure is otherwise validly terminated.

General Rule: A bona fide appointment in an acting capacity is essentially temporary and revocable in character and the holder of such appointment may be removed without hearing or cause. Also, a person who accepts such appointment waives the right to invoke security of tenure as a ground for assailing his removal.

Exception: Where the appointment is not bona fide, i.e. it was intentionally made to circumvent the petitioner’s right to security of tenure. The court draws analogy with the rule that the head of office cannot arbitrarily convert

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[DISQUALIFICATIONS (DEBULGADO V. CSC) – APPOINTMENT (GM OF PPA V. MONSERATE)] PUBOFFpermanent positions into confidential items so he can freely fire or hire at his discretion. (Piñero v. Hechanova)

The Court may validly inquire into the true nature of an acting appointment to determine if it is bona fide.

IN THIS CASE: Circumstances surrounding her appointment point to an attempt to violate right to security of tenure

(1) MSU Code of Governance Sec 40.5 par 22 grants the President the power to designate officers in an acting capacity but only for a period of less than one year in this case, it was indefinite.

(2) BoR had to confirm the appointment this indicates that it was an ad interim appointment made permanent by the confirmation, and not merely a designation of OIC which does not require BoR approval.

(3) Substantially all officers suffered the same fate. “to hold the sword of Damocles over the head of all MSU employees and officers”.

Another Argument from Respondent: Petitioner was already in the position of PROFESSOR VI. This precludes her from becoming permanent at the Vice Chancellor position.

(1) SC response: Comparing to Tapales v. President and BoR of University of the Philippines The fact that one is a permanent professor does not detract from the permanent nature of an ADMINISTRATIVE POSITION. Especially if confirmed by the Board of Regents, as was the case here.

Finally: The fact that she turned down an offer for a different permanent position from the President does not support the latter’s case because (a) the position offered was in effect a demotion even from her prior Vice President position (b) she cannot be compelled to accept it (c) there is no showing of any interest of the service that would be served by forcing it upon her.

MATIBAG v BENIPAYOFACTS

1. 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 However, the Commission on Appointments did not act on said appointments.

2. 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.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

3. 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. The Office of the President submitted their appointments for confirmation to the Commission on Appointments. They took their oaths of office anew

4. 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 petitione

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[DISQUALIFICATIONS (DEBULGADO V. CSC) – APPOINTMENT (GM OF PPA V. MONSERATE)] PUBOFF5. On April 16, 2001, 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, which states in part:

6. 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.

7. Petitioner claims that the ad interim appointments ofBenipayo, 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.

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 appointment prohibited by Section 1 (2), Article IX-C of the Constitution—NO

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.

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.

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. 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.

2. 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;--NO

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

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[DISQUALIFICATIONS (DEBULGADO V. CSC) – APPOINTMENT (GM OF PPA V. MONSERATE)] PUBOFFcannot 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.

3. 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;

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

The COMELEC Chairman is the official expressly authorized by law to transfer or reassign COMELEC personnel. The person holding that office, in a de jure capacity, is Benipayo. The COMELEC en banc, in COMELEC Resolution No. 3300, approved the transfer or reassignment of COMELEC personnel during the election period. Thus, 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.

Padilla v. CSC

FACTS: Remedios Padilla (Padilla) assumed the permanent position of Clerk II in

the Ministry of Labor and Employment and was thereafter promoted to the position of Labor Development Assistant, assuming her new position without waiting for the approval of the Civil Service Commission (CSC).

The CSC disapproved Padilla's appointment on the ground that she failed to meet the eligibility requirement for the position.

The Officer-in-Charge of the Institute of Labor and Manpower Studies, sought reconsideration of CSC's ruling, pointing out Padilla's satisfactory performance, which was denied.

Padilla resigned from the service for personal reasons and took the Career Service Examination (Professional Level), after passing which, she re-applied at the Department of Labor and Employment (DOLE) and was appointed as Casual Research Assistant.

Following the effectivity of Republic Act (RA) No. 6758 (Salary Standardization Act of 1989), casual items were abolished and Padilla was offered the position of Clerk II, which she declined.

Padilla was appointed Casual Clerk III, after the expiration of which, she was no longer given any position.

Padilla appealed her alleged termination as casual employee to the CSC, which dismissed the same for having been filed out of time.

Padilla filed a letter-complaint addressed to Department of Justice, which was forwarded to the CSC, which dismissed the same.

The Court of Appeals ruled that the CSC had the power to revoke the appointment of a public officer whose qualification did not meet the minimum requirements of the law.

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[DISQUALIFICATIONS (DEBULGADO V. CSC) – APPOINTMENT (GM OF PPA V. MONSERATE)] PUBOFFISSUE: Whether or not Padilla’s termination was legal.

HELD: Yes.

RATIO: Padilla voluntarily resigned after having occupied the permanent position of

Clerk II before the disapproval of her appointment for Labor Development Assistant, a higher permanent position.

After returning to the service, she occupied casual positions only, despite passing the eligibility requirement for a permanent position.

Like removal for just cause, voluntary resignation results in the abdication of all present and future rights accorded to an employee and in the severance of all work-related ties between the employer and the employee.

When she returned to work for the Department of Labor and Employment (DOLE), the same was not a continuation of her previous service but the start of a new work slate.

Padilla could no longer demand from DOLE her reinstatement to a permanent position as she was never unjustly removed.

When Padilla re-applied for, and was offered the position of Casual Research Assistant and later Casual Technical, she readily and unqualifiedly accepted the said offer, and, having accepted the position of a casual employee, she should have known that she had no security of tenure and could thus be separated from the service anytime.

After finishing her contract as a Casual Technical, DOLE offered to her the permanent position of Clerk II, for which the Selection Board deemed her qualified, but she declined the offer in favor of another casual position as Casual Clerk III.

On the ground of estoppel, Padilla is barred from asserting her right to a permanent position.

CSC vs. SATURNINO DE LA CRUZ [2004]

facts

Saturnino de la Cruz is an employee of the Air Transportation Office as Chief Aviation Safety Regulation Officer.

Prior thereto, he was a Check Pilot II in the Air Transportation Office (ATO).

Annabella A. Calamba of the Aviation Security Division of the ATO formally filed with the DOTC her protest against the promotional appointment of respondent claiming that he did not meet the four-year supervisory requirement for said position.

DOTC Sec: protest without merit. Calamba appealed the decision of the DOTC Sec to the CSC-NCR. CSC-NCR: recalled the approval of respondents appointment

issueWON Saturnino met the minimum experience requirements as of the date of the protestees appointment to the contested position. YES.

ratio The contested position requires

o four years of work experience in position/s involving management o AND/OR four years of experience in planning, organizing,

directing, coordinating and supervising the enforcement of air safety laws, rules and regulations pertaining to licensing, rating and checking of all airmen and mechanics and regulation of the activities of flying schools

The use of the term and/or means that the word and and the word or are to be used interchangeably. The use of the disjunctive term or in this controversy connotes that either the standard in the first clause or that in the second clause may be applied in determining whether a prospective applicant for the position under question may qualify.

Respondent would indeed lack the required years of work experience to qualify for the contested position if the managerial standards in the first clause above were to be strictly followed. But, the work already rendered by respondent in the ATO at the time of his appointment was well within the supervisory standard in the second clause.

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[DISQUALIFICATIONS (DEBULGADO V. CSC) – APPOINTMENT (GM OF PPA V. MONSERATE)] PUBOFF Rapisora vs. CSC the rule that appointees must possess the prescribed

mandatory requirements cannot be so strictly interpreted as to curtail an agencys discretionary power to appoint, as long as the appointee possesses other qualifications required by law.

The power to appoint is in essence discretionary on the part of the proper authority. In Salles vs. Francisco, et al., in the appointment or promotion of employees, the appointing authority considers not only their civil service eligibilities but also their performance, education, work experience, trainings and seminars attended, agency examinations and seniority. The appointing authority has the right of choice which he may exercise freely according to his best judgment, deciding for himself who is best qualified among those who have the necessary qualifications and eligibilities. The final choice of the appointing authority should be respected and left undisturbed. Judges should not substitute their judgment for that of the appointing authority.

There is no reason to disapprove the appointment of respondent as Chief of the Aviation Safety Regulation Office considering that he is fully qualified and evidently the choice of the appointing authority. Between the Commission and the appointing authority, we sustain the latter.

But even assuming for the sake of argument that respondent failed to meet the experience requirement to qualify for the contested position, we are still inclined to uphold the CAs approval of respondents appointment. Petitioner itself has, on several occasions, allowed the appointment of personnel who were initially lacking in experience but subsequently obtained the same.

CIVIL SERVICE COMMISSION V. ENGR. DARANGINA - Buenaventura

FACTS:

1. Engineer Darangina was a development management officer V in the Office of Muslim Affairs (OMA).

2. He was extended a temporary promotional appointment as Director III, Plans and Policy Services.

3. CSC approved the temporary appointment.

4. New OMA Executive Director terminated the appointment, ground: Not Career Executive Service Eligible.

5. CSC disaprroved the appointment of the replacement who was also not eligible, and granted that the Darangina should be paid backwages until the expiration of his 1 yr temporary appointment.

6. 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 his term upon his replacement, there is no longer any remaining term to be served. Administrative Code of 1987Book V Title I Subtitle A Chapter 5Section 27.

Employment Status. – Appointment in the career service shall be permanent or temporary. (1)Permanent Status. A permanent appointment shall be issued to a person who meets all the requirements for the position to which he is being appointed, including appropriate eligibility prescribed, in accordance with the provisions of law, rules and standards promulgated in pursuance thereof.

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[DISQUALIFICATIONS (DEBULGADO V. CSC) – APPOINTMENT (GM OF PPA V. MONSERATE)] PUBOFF(2)Temporary Appointment. In the absence of eligible persons and it becomes necessary in the public interest to fill a vacancy, a temp appointment shall be issued to a person who meets all the requirements for the position to which he is being appointed except the appropriate civil service eligibility: Provided, that such temporary appointment shall not exceed 12 mos., but the appointee may be replaced sooner if a qualified civil service eligible becomes available.

Corpuz v. CA Digest By LA CelebradoAtty. David B. Corpuz vs.Court of Appeals, and Movie and Television Review and Classification Board

G.R. No. 123989 | January 26, 1998 | 1st Div. | Davide, Jr., J.

FACTS:

CORPUZ was appointed as the MTRCB’s Legal Counsel (approved by CSC and designated as Attorney V under the Salary Standardization Law).

MTRCB passed Resolution No. 8-1-91 entitled “An Act to Declare the Appointments of the Administrative and Subordinate Employees of this Board as Null and Void.” This noted that the past and present Chairmen of the MTRCB had failed to submit for approval the appointments of administrative and subordinate employees to the MTRCB9 before forwarding them to the CSC; thus, considered invalid and MTRCB made the holding of these positions in a holdover capacity in the meantime.

9 Section 16. Organization Patterns; Personnel. -- The Board shall determine its organizational structure and staffing pattern. It shall have the power to suspend or dismiss for cause any employee and/or approve or disapprove the appointment, transfer or detail of employees. It shall appoint the Secretary of the Board who shall be the official custodian of the records of the meetings of the Board and who shall perform such other duties and functions as directed by the Board.

Then, Mendez was appointed MTRCB Chairman. New members of the Board were likewise appointed. She was informed about Resolution No. 8-1-91. An Ad Hoc Committee composed of MTRCB members was then constituted to look into the appointments extended by former Chairman Morato. The Committee resolved to recommend to the MTRCB the approval of the appointments, except that of CORPUZ and seven others.

CORPUZ filed a complaint with the CSC requesting a formal investigation and hearing.

Mendez stated that she discovered that the appointments extended by Morato were not submitted to the MTRCB for approval; hence to cure the defect, she submitted the appointments to the MTRCB.

Afterwards, CSC promulgated a resolution granting the MTRCB authority to fill up positions vacated in the agency due to appointments which were not submitted to the MTRCB for approval.

However, in another Resolution, the CSC ruled in favor of CORPUZ, because his appointment was signed by then Chair. Morato, as the duly authorized signatory of MTRCB appointments. All the appointments signed by Mr. Morato in his capacity as MTRCB Chairman are presumed to have been made after complying with all the legal requirements including the Board approval, whether express or implied.

In the meantime, CORPUZ became a permanent employee of the Ombudsman.

The MTRCB filed petition for certiorari. The Court of Appeals declared null and void the said resolution of the CSC, since the appointment of CORPUZ was not approved by the MTRCB. CORPUZ’s motion for reconsideration is also denied by CA.

ISSUE:

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[DISQUALIFICATIONS (DEBULGADO V. CSC) – APPOINTMENT (GM OF PPA V. MONSERATE)] PUBOFFWON CORPUZ’s appointment is valid? (NO)

HELD:NO. There are two stages in the process of appointing MTRCB personnel, other than its Secretary, namely: (a) recommendation by the Chairman which is accomplished by the signing of the appointment paper10; and (b) approval or disapproval by the MTRCB of the appointment.It is long settled in the law of public offices and officers that where the power of appointment is absolute, and the appointee has been determined upon, no further consent or approval is necessary, and the formal evidence of the appointment, the commission, may issue at once. Where, however, the assent or confirmation of some other officer or body is required, the commission can issue or the appointment may be complete only when such assent or confirmation is obtained. In either case, the appointment becomes complete when the last act required of the appointing power is performed. Until the process is completed, the appointee can claim no vested right in the office nor invoke security of tenure. Hence, in the case of CORPUZ, since the last act required for the completion of his appointment, viz., approval by the MTRCB itself, was not obtained, as a matter of fact, the MTRCB ultimately disapproved it, his appointment ceased to have effect, if at all, and his services were properly terminated.

10 Pursuant to Section 2 of P.D. No. 1986, the MTRCB is composed of a Chairman, a Vice-Chairman and thirty (30) members, all appointed by the President of the Philippines. Section 5 thereof enumerates the following functions, powers and duties of the Chairman as the Chief Executive Officer of the MTRCB, to wit:(a) Execute, implement and enforce the decisions, orders, awards, rules and regulations issued by the BOARD;(b) Direct and supervise the operations and the internal affairs of the BOARD;(c) Establish the internal organization and administrative procedures of the BOARD, and recommend to the BOARD the appointment of the necessary administrative and subordinate personnel; and(d) Exercise such other powers and functions and perform such duties as are not specifically lodged in the BOARD.

The tolerance, acquiescence or mistake of the proper officials resulting in non-observance of the requirements of law or rules to complete the appointment does not render the requirements ineffective and unenforceable.A public official or employee who assumed office under an incomplete appointment is merely a de facto officer for the duration of his occupancy of the office for the reason that he assumed office under color of a known appointment which is void by reason of some defect or irregularity in its exercise. Undeniably, under the facts here, CORPUZ was such a de facto officer.

LAPINID V. CSC (1991)

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 Facts:

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[DISQUALIFICATIONS (DEBULGADO V. CSC) – APPOINTMENT (GM OF PPA V. MONSERATE)] PUBOFFPetitioner Renato M. Lapinid was appointed by the Philippine Ports Authority to the position of Terminal Supervisor at the Manila International Container Terminal on October 1, 1988. This appointment was protested on December 15, 1988, by private respondent Juanito Junsay, who reiterated his earlier representations with the Appeals Board of the PPA on May 9, 1988, for a review of the decision of the Placement Committee dated May 3, 1988. He contended that he should be designated terminal supervisor, or to any other comparable position, in view of his preferential right thereto.

After a careful review of the records of the case, the Commission finds the appeal meritorious. It is thus obvious that Protestants Junsay (79.5) and Villegas (79) have an edge over that of protestees Lapinid (75) and Dulfo (78).

Foregoing premises considered, it is directed that Appellants Juanito Junsay and Benjamin Villegas be appointed as Terminal Supervisor (SG 18) vice protestees Renato Lapinid and Antonio Dulfo respectively who may be considered for appointment to any position commensurate and suitable to their qualifications, and that the Commission be notified within ten (10) days of the implementation hereof.

Decision:

Only recently, in Gaspar v. Court of Appeals,[2] this Court said:

The only function of the Civil Service Commission in cases of this nature, according to Luego, is to review the appointment in the light of the requirements of the Civil ServiceLaw, 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 Civil Service Commission. Every particular job in an office calls for both formal and informal qualifications. Formal qualifications such as age, number of academic units in a certain course, seminars attended, etc., may be valuable but so are such intangibles as resourcefulness, team spirit, courtesy, initiative, loyalty, ambition, prospects for the future, and best interests of the service. Given the demands of a certain job, who can do it best should be left to the Head of the Office concerned provided the legal requirements for the office are satisfied. The Civil Service Commission cannot substitute its judgment for that of the Head of Office in this regard

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[DISQUALIFICATIONS (DEBULGADO V. CSC) – APPOINTMENT (GM OF PPA V. MONSERATE)] PUBOFFAppointment is a highly discretionary act that even this Court cannot compel. While the act of appointment may in proper cases be the subject of mandamus, the selection itself of the appointee - taking into account the totality of his qualifications, including those abstract qualities that define his personality - 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 to review under the Constitution and the applicable laws.

WHEREFORE, the petition is GRANTED. The Resolutions of the respondent Civil ServiceCommission dated February 14, 1990, May 25, 1990, August 17, 1990, and October 19, 1990, are REVERSED and SET ASIDE. The temporary restraining order dated December 13, 1990, is made PERMANENT. No costs.

General Manager of PPA, and Anino v. MonserateFacts:

- Julieta Monserate started as Bookkepper II in the Port Management Office, Iloilo PPA

- She was promoted to Cashier II and then to Finance Officer- In 1988, Monserate applied for the permanent position of Manger II

(SG-19) of the Resource Management Division- Dumlao, the General Manager of PPA, appointed Monserate; CSC

approved her appointment- Ramon Anino, who ranked 2nd to respondent as per the Comparative

Data Sheet, filed an appeal/petition with the PPA Appeals Board, protesting Monserate’s appointment

- The said board sustained the protest, and rendered ineffective Monserate’s appointment based on “(1) CSC MC No. 5-1988, par 3; (2) CSC MC No. 10-1986, par a, 1.2 and par b; and (3) Civil Service Eligibility” all of which were without further explanation

- She received a PPA Special Order which indicated that Anino was Manager II and not her

- Monserate filed with the PPA Manager an appeal/request for clarification, questioning her replacement, claiming that thte proceedings before the Appeals Board were irregular

o There was no notice of hearingo She was not furnished the Resolution of the Appeals Board,

nor the copy of the protesto She was not informed of the reasons behind her replacemento Their Port Manager in Iloilo, who was then an official member

of the Board, was not included in the proceedings- Monserate received another PPA Special Order, reassigning her to

Administrative Officer (SG-15), which was Anino’s former position, and was lower than her previous position as Finance Officer (SG-16), prior to her botched appointment

- Due to the inaction of the General Manager, she filed with the CSC precautionary appeal, manifesting that she was yet to receive a copy of the Appeals Board resolution

- Thereafter, she received a copy of her appointment as Admin Officer, which she has since been discharging the functions thereof; she likewise learned that the General Manager had just issued Anino’s appointment (both in contrast to the Special Orders)

- In 1989, Monserate filed an appeal formally protesting against Anino’s appointment, and the propriety of the Appeals Board resolution

- After 6 years, CSC dismissed her appeal:

"It is well-established rule that an appointment, although approved by this Commission, does not become final until the protest filed against it is decided by the agency or by the Commission. Although Monserate had already assumed the position of RMD Manager II, the appointing authority may still withdraw the same if a protest is seasonably filed. This is

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[DISQUALIFICATIONS (DEBULGADO V. CSC) – APPOINTMENT (GM OF PPA V. MONSERATE)] PUBOFFcovered by Section 19, Rule VI of the Omnibus Rules implementing EO 292 x x x.

"Monserate's claim that she is more qualified than Anino is not relevant to the issue before this Commission. In cases of protest filed or appealed to the Commission, the main question to be resolved is whether or not the appointee meets the qualification standard. x x x. The Commission will not disturb the choice of the appointing authority as long as the appointee meets the qualification prescribed for the position in question."

- Monserate appealed to the CA which sustained her appeal:o PPA Appeals Board resolution was not supported by evidenceo Irregularity in the issuance of the resolution (lack of proper

notice)o Reassignment from Manager II to Admin Officer was a

demotion violative of her right to security of tenure and due process

- In 1997, Anino retired from the government service- General Manager and Anino’s arguments:

o No demotion; demotion is in the nature of an administrative penalty; since there was no such charge and conviction, there is no demotion

o Displacement was due to the aftermath of PPA reorganizationo Her appointment as Manager II did not become final until the

protest filed against her was favorably decided in her favor by CSC, citing Admin Code, sec 19

o Head of agency, being the appointing authority, is the one most knowledgeable to decide who can best perform the functions of the office; he/she has a wide latitude of choice subject only to the condition that the appointee should possess the qualifications required by law

Issue (1):

w/n Monserate’s right to due process was violated

Holding and Ratio: Yes.

The PPA reorganization in 1988 has nothing to do with her demotion. It was precisely because of the reorganization that Monserate applied for Division Manager II. The comparative data sheet, accomplished by the PPA Reorganization Task Force, shows that she ranked first from among 6 contenders. It was only after such reorganization, and in fact nothing else but by virtue of the Resolution sustaining Anino’s protest that she got demoted.

Moreover, the dispositive portion of the said Resolution appears irregular. It “upholds” the appointment of Anino, when in fact, Anino was yet not appointed as Manager II at that time; it was Monserate who was appointed. In any case, Anino’s official appointment was not issued until 2 months after the said resolution. The PPA Appeals Board could not uphold an appointment which did not yet exist.

Equally questionable are the grounds for sustaining the protest. The enumeration is incomprehensible for lack of discussion by the Board to enable Monserate to know the reasons for her demotion. CA was correct in nullifying the resolution of the Appeals Board for lack of evidence and proper notice:

“Of the CSC MC No. 5, the petitioner had no pending administrative or criminal case at the time of her appointment as Manager. x x x.

"With respect to the CSC MC No. 10, Par. A (1.2) and Par. B, the processing, review, evaluation and recommendation of her appointment as Manager II, passed several committees created by the PPA. x x x. Moreover, she had a 1.9 average performance rating compared to the private respondent who only got 2.03. x x x.

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[DISQUALIFICATIONS (DEBULGADO V. CSC) – APPOINTMENT (GM OF PPA V. MONSERATE)] PUBOFF"On eligibility, she has a Career Service Professional eligibility while the private respondent only has a First Grade Civil Service Eligibility.

"She added that she was not aware of any proceeding on her demotion as a Division Manager. As a matter of fact, it was only upon her initiative sometime during the latter part of November, 1988 that she was able to obtain a copy of the August 11, 1988 Resolution of the Appeals Board. The resolution sustained the private respondent's appointment as Division Manager even if on August 11, 1988, he was not yet extended any appointment. As a matter of fact, he was appointed only on October 1, 1988 (should be October 21, 1988).

"Furthermore, she said that the resolution of the PPA Appeals Board appears irregular, if not null and void. She was never notified of any proceeding; she was not furnished either a copy of the resolution. What she received instead was a Special Order dated September 29, 1988 already ordering her demotion. She was not at all given the opportunity of defending herself before the Appeals Board.

"x x x.

"In the case now before us, the petitioner did not receive or was not given a copy of the August 11, 1988 Resolution of the Appeals Board. She did not even know that she was demoted until after she received a copy of the the Special Order No. 479-88."

Substantial and procedural irregularities attended Monserate’s demotion. It is a patent violation of her constitutional rights to security of tenure and due process.

In Aquino v. CSC, “once an appointment is issued and the moment the appointee assumes a position in the civil service under a completed appointment, he acquires a legal, not merely equitable, right (to the position) which is protected not only by statute, but also by the constitution, and cannot

be taken away from him either by revocation of the appointment, or by removal, except for cause, and with previous notice and hearing.”

Concededly, the appointing authority has a wide latitude of discretion in the selection and appointment of qualified persons to vacant positions in the civil service. However, the moment the discretionary power of appointment is exercised and the appointee assumed the duties and functions of the position, such appointment cannot anymore be revoked by the appointing authority and appoint another in his stead, except for cause. Here, no iota of evidence was ever established to justify the revocation.

Thus, CA merely restored her appointment to said position; position never became vacant since her demotion was void. Consequently, Anino’s appointment to a non-vacant position in the civil service is null and void ab initio.

Re: Anino’s incumbency:

Anino is nonetheless considered a de facto officer during the period of his incumbency. A de facto officer is one who is in possession of an office and who openly exercises its functions under color of an appointment or election, even though such appointment or election may be irregular.

Re: backwages:

In Monroy vs. Court of Appeals, a rightful incumbent of a public office may recover from a de facto officer the salary received by the latter during the time of his wrongful tenure, even though he (the de facto officer) occupied the office in good faith and under color of title. A de facto officer, not having a good title, takes the salaries at his risk and must, therefore, account to the de jure officer for whatever salary he received during the period of his wrongful tenure.

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[DISQUALIFICATIONS (DEBULGADO V. CSC) – APPOINTMENT (GM OF PPA V. MONSERATE)] PUBOFFIn the later case of Civil Liberties Union vs. Executive Secretary, SC allowed a de facto officer to receive emoluments for actual services rendered but only when there is no de jure officer, thus:

"x x x in cases where there is no de jure officer, a de facto officer who, in good faith, has had possession of the office and has discharged the duties pertaining thereto, is legally entitled to the emoluments of the office, and may in appropriate action recover the salary, fees and other compensations attached to the office."

GR: Where there is a de jure officer, a de facto officer, during his wrongful incumbency, is not entitled to the emoluments attached to the office, even if he occupied the office in good faith.

HOWEVER, rule cannot be applied squarely on the present case in view of its peculiar circumstances. Monserate had assumed under protest the position of Administrative Officer which position she currently holds. Since then, she has been receiving the emoluments, salary and other compensation attached to such office. While her assumption to said lower position and her acceptance of the corresponding emoluments cannot be considered as an abandonment of her claim to her rightful office (Division Manager), she cannot recover full backwages for the period when she was unlawfully deprived thereof. She is entitled only to backpay differentials (difference between the salary rates for the positions of Manager II and Administrative Officer) for the period starting from her assumption as Administrative Officer up to the time of her actual reinstatement to her rightful position as Division Manager. The same must be paid by petitioner Anino corresponding from the time he wrongfully assumed the contested position up to the time of his retirement on November 30, 1997.

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Documents

Debulgado v CSC - Appointment [GMA of PPA]