9.

Tomali v Civil Service Commission

FACTS:
On July 1, 1990, Mona A. Tomali was appointed Development
Management Officer II (DMO II) in the Office on Muslim Affairs (OMA).
She assumed the duties and functions of the office on November 1,
1990, while the appointment had not yet been transmitted to the
Civil Service Commission (CSC) for approval.
On July 16, 1991, the new Director of the OMA, Dr. Ali Basir
Lucman, revoked the previous incomplete appointment of Tomali
and appointed Rocaina M. Lucman as DMO II.
On July 29, 1991, Tomali sent a letter addressed to OMA
protesting her replacement. Tomalis appeal was dismissed.
Tomali reiterated her protest but was again denied by the
Merit Systems Protection Board (MSPB).
The MSPB held that, by virtue of Sec. 11, Rule V, of the
Omnibus Rules Implementing Book V of Executive Order No. 292,
Administrative Code of 1987, an appointed not submitted
before the CSC is incomplete.
That being so, the proper appointing authority, in this case,
the OMA Executive Director may, in the exercise of sound discretion,
cancel or revoke the said incomplete appointment and appoint
another person. Tomali then appealed to the CSC, which dismissed
the appeal for lack of merit.

appointee, and the appointment can still be recalled or withdrawn by

the appointing authority.
Until an appointment has become a completed act, it would
likewise be precipitate to invoke the rule on security of tenure.
The tolerance, acquiescence or mistake of the proper
officials, resulting in the non-observance of the pertinent
rules on the matter does not render the legal requirement
ineffective and unenforceable. The employee, whose
appointment was not approved, may only be considered a de
facto officer.
10. Flores v Drilon
FACTS:
The constitutionality of Sec. 13, par. (d), of R.A. 7227,
otherwise known as the "Bases Conversion and Development Act of
1992," under which respondent Mayor Richard J. Gordon of Olongapo
City was appointed. Chairman and Chief Executive Officer of the
Subic Bay Metropolitan Authority (SBMA), is challenged in this case.
Paragraph (d) reads
(d) Chairman administrator The President shall appoint a
professional manager as administrator of the Subic Authority
with a compensation to be determined by the Board subject
to the approval of the Secretary of Budget, who shall be the
ex oficio chairman of the Board and who shall serve as the
chiefexecutive officer of the Subic Authority:

ISSUE:
WON Tomali was validly replaced?

Provided,
from the
Olongapo
executive

HELD:
Yes. Compliance with the legal requirements for an
appointment to a civil service position is essential in order to make it
fully effective.
Without the favorable certification or approval of the
Commission, in cases which such approval is required, no title to the
office can yet be deemed to be permanently vested in favor of the

however, That for the first year of its operations

effectivity of this Act, the mayor of the City of
shall be appointed as the chairman and chief
officer of the Subic Authority.

ISSUE:
WON Mayor Gordons acts as the CEO of SBMA are null and
void?
HELD:

No. Although his appointment as CEO of the SBMA pursuant to

a legislative act that contravenes the Constitution cannot be
sustained, his acts as an SBMA official are not necessarily null and
void.
He may be considered a de facto officer, under color of
a known election or appointment, void because the officer
was not eligible, or because there was a want of power in the
electing or appointing body, or by reason of some defect or
irregularity in its exercise . . . [or] under color of an election,
or appointment, by or pursuant to a public unconstitutional
law, before the same is adjudged to be such. (State v Caroll)
11. Menzon v Petilla
FACTS:
1988, by virtue of the fact that no Governor had been
proclaimed in the province
of Leyte, the Secretary of Local
Government Santos designated the Vice-Governor, Petilla as Acting
Governor of Leyte.
Menzon, a senior member of the Sanggunian Panlalawigan
was also designated by Secretary Luis Santos to act as the ViceGovernor for Leyte. Petitioner took his oath of office before Senator
Romulo.
The legality of the appointment of petitioner to act as the
Vice-Governor of Leyte was questioned before the Undersecretary of
the Dept. of Local Government.
Undersecretary Rubillar stated that since B.P. 337 has no
provision relating to succession in the Office of the Vice-Governor in
case of temporary vacancy, the appointment of petitioner is not
necessary since the Vice-Governor who is temporarily performing
the functions of the Governor, could concurrently assume the
functions of both offices.
As a result of the Undersecretarys communication, the
Sanggunian Panlalawigan issued Resolution No. 505 where it held
invalid the appointment of the petitioner as acting Vice-Governor of
Leyte.

Petitioner was paid his salary as acting Vice-Governor of

Leyte in the amount of P17,710.00 for the actual service as ViceGovernor.
ISSUES/s:
(1) WON there was a Vacancy?
(2) WON the Sec. of Local Govt has the authority to make
temporary appointments?
HELD:
(1)
Yes. There is vacancy when there is no person lawfully
authorized to assume and exercise at present the duties of the
office.
Applying the definition to this case, it can be readily seen
that the office of the Vice-Governor was left vacant when the duly
elected Vice-Governor Petilla was appointed as acting Governor.
There is no satisfactory showing that Petilla,
notwithstanding his succession to the Office of the Governor,
continued to simultaneously exercise the duties of ViceGovernor. The nature of the duties of a Provincial Governor
call for a full-time occupant to discharge them.
(2)
Yes. The Local Government Code is silent on
the mode of succession in the extent of a temporary vacancy in
the Office of the Vice-Governor. However, the silence of the law
must not be understood to convey that a remedy in law is
wanting.
There was a necessity for the appointment of acting
Vice-Governor. For about 2 years after the elections,
there had been no permanent Governor. If no
designation was made, there would be disruptions and
delays in the delivery of basic services to the people and
in the proper management of the affairs of the local
government.

Also, the petitioners right to be paid the salary attached to

the Office of the Vice Governor is indubitable.
Even granting that the Secretary of Local Government
possesses no power to appoint the petitioner, at the very
least, the petitioner is a DE FACTO officer entitled to
compensation.
There is no denying that the petitioner assumed the Office of
the Vice Governor under a color known appointment.
He
exercised the duties for a long period of time. He was acclaimed
as such by the people of Leyte.

Upon the principle of public policy on which the de

facto doctrine is based, it would be unfair to now deny
him the salary due to him for the services he actually
rendered.