PUBLIC OFFICE AND OFFICERS In Gabriel v.

Cornejo, Due process is violated only if an

WHAT IS A PUBLIC OFFICE?
Defiinition
A public office is the right, authority and duty created and
conferred by law, by which for a given period, either fixed by
law or enduring at the pleasure of the appointing power, an
individual is invested with some portion of the sovereign
functions of the government, to be exercised by him for the
benefit of the public. (Mechem)
Purpose and Nature
office is considered property. However, a public office is not
property within the constitutional guaranties of due process.
It is a public trust or agency. As public officers are mere
agents and not rulers of the people, no man has a
proprietary or contractual right to an office. Every officer
accepts office pursuant to law and holds office as a trust for
the people whom he represents.
In Abeja v. Tanada, 267 SCRA 806, public office being
personal, the death of a public officer terminates his right to
occupy the contested office and extinguishes his
counterclaim for damages. His widow and/or heirs cannot
be substituted in the counterclaim suit.

A public office is created to effect the end for which Elements

government has been instituted which is the common good;
not profit, honor, or private interest of any person, family or
class of persons (63 A Am Jur 2d 667)
NATURE:
(1) A public office is a public trust. (Art. XI, Sec. 1, 1987
Consti)
“Public office is a public trust. All government officials
and employees must at all times be accountable to the
people, serve them with utmost responsibility, integrity, loyalty
and efficiency, act with patriotism and justice, and lead
modest lives.”
(1) Must be created either by (a) the Constitution, (b) the
Legislature, or (c) a municipality or other body through
authority conferred by the Legislature;
(2) Must possess a delegation of a portion of the sovereign
power of government, to be exercised for the benefit of the
public;
(3) The powers conferred and the duties discharged must
be defined, directly or impliedly by the Legislature or through
legislative authority;

In City Mayor v CA, 182 SCRA 785, a public officer who
is found to be guilty of “dishonesty, oppression, and
disgraceful and immoral conduct” and “grave misconduct” in
office should thereby be dismissed. To hold otherwise would
be a mockery of a fundamental rule that public office is a
public trust and would render futile the constitutional dictates
on the promotion on morale, integrity, responsiveness,
progressiveness and courtesy in the public office
(2) It is a responsibility and not a right but a privilege given
by the people to public officers to perform the sovereign
functions of the government in order to promote public
interest.
(4) The duties must be performed independently and
without control of a superior power other than the law;
Exception: If the duties are those of an inferior or
subordinate office, created or authorized by the
Legislature and by it placed under the general control of
a superior office or body;
(5) Must have some permanency and continuity
Note: This is not to be applied literally. The Board of
Canvassers is a public office, yet its duties are only for a
limited period of time.

GENERAL RULE: A public office, being a mere privilege Modes of Creation Of Public Office
given by the state, does not vest any rights in the holder of the
office. This rule applies when the law is clear. (1) by the Constitution
EXCEPTION: When the law is vague, the person’s holding of (2) by statute / law
the office is protected and he should not be deprived of his (3) by a tribunal or body to which the power to create the
office. office has been delegated
(3) It is purely personal and not a property. Hence, the right
of the public officer to hold public office is extinguished Public Office v. Public Contract
through his death and could no longer be transferred through
his heirs.
PUBLIC OFFICE PUBLIC CONTRACT

Creation Incident of sovereignty Originates from will of

In Segovia v Noel, it is a fundamental principle that a public contracting parties
office cannot be regarded as the property of the incumbent
and that a public office is not a public contract. Nonetheless, Carrying out of sovereign Obligations imposed only
Object as well as governmental upon the persons who
Act. No. 3107 should be given a prospective effect in the
functions affecting even entered into the contract
absence of legislative intent to the contrary. Although there is persons not bound by the
a vested right to an office, which may not be disturbed by contract
legislation, yet the incumbent has, in a sense, a right to his
office. If that right is to be taken away by statute, the terms Subject Tenure, duration, continuity Limited duration
should be clear. Matter

Scope Duties that are generally Duties are very specific

A public office is not the property of the public officer continuing and permanent to the contract
within the provision of the Constitution against deprivation of
property without due process of law or within an agreement in Where duties The law Contract
a treaty not to impair the property or rights of private are defined
individuals.
Public Officer v. Public Employment
Exceptions:
(1) In quo warranto proceedings relating to the question Public employment is broader than public office. All
as to which of 2 persons is entitled to a public office public office is public employment, but not all public
(2) In an action for recovery of compensation accruing employment is a public office.
by virtue of Generally, a position is a public office when it is created
the public office by law, with duties cast upon the incumbent which involve
the exercise of some portion of the sovereign power, and in
the performance of which the public is concerned. Public
employment is a position which lacks one or more of the
foregoing elements.
HONORARY OFFICE AD HOC OFFICE
- the salary or fee of the - the salary, compensation,
holder is annexed; or fee is annexed;
- the position to such office - it is an an office for profit.
is supposed to be accepted
for the common good.
Scope and Extent of Power of the Legislature
GENERAL RULE: The creation of a public office is primarily
a legislative function.
Exceptions: (1) where the offices are created by the
Constitution;
(2) where the Legislature delegates such power.
Delegation of Power to Create Public Office
Q: What is the effect where an office is created pursuant to
illegally delegated powers?
A: The office would have no existence.
UST v. Board of Tax Appeals
The authority given to the President to "reorganize within
one year the different executive departments, bureaus and
other instrumentalities of the Government" in order to promote
efficiency in the public service is limited in scope and cannot
be extended to other matters not embraced therein.
Therefore, an executive order depriving the Courts of First
Instance of jurisdiction over cases involving recovery of taxes
illegally collected is null and void, as Congress alone has the
"power to define, prescribe and apportion the jurisdiction of
the various courts."
Methods of Organizing Offices
(1) Single-head: one head assisted by subordinates. Swifter
decision and actions but may sometimes be hastily made.
(2) Board System: collegial body in formulating polices and
implementing programs. Mature studies and
deliberations but may be slow in responding to issues
and problems.
Modification and Abolition
GENERAL RULE: The power to create an office
includes the power to modify or abolish it. (i.e., this is
generally a legislative function)
EXCEPTIONS:
(1) Where the Constitution prohibits such modification /
abolition;
(2) Where the Constitution gives the people the power to
modify or abolish the office;
Ocampo v. Secretary of Justice
The legislative power to create a court carries with it the
power to abolish it. When the court is abolished, any
unexpired term is abolished also.
Zandueta v. De la Costa
RULE: When a public official voluntarily accepts an
appointment to an office newly created by law -- which new
office is incompatible with the former -- he will be considered
to have abandoned his former office.
Exception: When the non-acceptance of the new
appointment would affect public interest, and the public official
is thereby constrained to accept.
Estoppel / To deny Existence of Office
Q: When is a public officer estopped from denying that he
has occupied a public office?
A: When he has acted as a public officer, esp. where he
has received
public monies by virtue of his office.
WHO IS A PUBLIC OFFICER?
A public officer is a person who holds public office.
Definition
A public officer is one who performs public functions /
duties of government by virtue of direct provision of law,
popular election, or appointment by competent authority. His
duties involve the exercise of discretion in the performance
of the functions of the government, and are not of a merely
clerical or manual nature. (See Sec. 2 (14), E.O. 292)
Note: For the purpose of applying the provisions of the
Revised Penal Code, employees, agents, or subordinate
officials, of any rank or class, who perform public duties in
the government or in any of its branches shall be deemed as
public officers.
Illustrations:
 In the case of Maniego v. People, a laborer who was in
charge of issuing summons and subpoenas for traffic
violations in a judge's sala was convicted for bribery under
RPC 203. The court held that even temporary performance
of public functions is sufficient to constitute a person as a
public official.
 In the case of People v. Paloma, a sorter and filer of
money orders in the Auditor's Office of the Bureau of Posts
was convicted for infidelity in the custody of documents. The
court pointed out that the sorting and filing of money orders
in the Bureau of Posts is obviously a public function or duty.
In Art 203, RPC, any person who, by direct provision of
law, popular election or appointment by competent authority,
shall take part in the performance of public in the
government of the Phil Islands, or shall perform in said
government or in any of its branches, public duties as an
employee, agent or subordinate official, of any rank or or
class, shall be deemed to be a public officer.
Under Sec 2, RA 3019, the term “public officer” includes
“elective and appointive officials and employees, permanent
or temporary, whether in the classified or exempt service,
receiving compensation, even nominal, from the
government.
Although the National internal Revenue Code authorizes
the Bureau of Internal Revenue to effect a constructive
distraint by requiring any person to preserved the destrained
property, there is no provision constituting such person as
apublic officer by reason of such requirement. The
Sandiganbayan, therefore, has no jurisdiction over the case
involving such person.
In Laurel v. Desierto, April, 12 2002, the SC said that
the most important characteristics which distinguishes an
office from an employment is that the creation and conferring
of an office involves a delegation to the individual of some of
the sovereign functions of government, to be exercised by
him for the benefit of the public, and that the same portion of
the sovereignty of the country, either legislative, executive,
or judicial, attaches, for the time being, to be exercised for
the benefit of the public. Unless the powers so conferred are
of this nature, the individual is not a public officer.
Who are not considered Public Officers?
 Special policemen salaried by a private entity and
patrolling only the premises of such private entity (Manila
Terminal Co. v. CIR);
 Concession forest guards (Martha Lumber Mill v.
Lagradante);
 Company cashier of a private corporation owned by the appointed to an office legally existing. (Norton v.
government (Tanchoco v. GSIS) County of Shelby)

DE JURE DE FACTO
May a Person Be Compelled to Accept Public Office?
Requisites (1) Existence of a de (1) De jure office;
GENERAL RULE: NO. jure office;
EXCEPTIONS:
(2) must possess the (2) Color of right or
legal qualifications general
(1) When citizens are required, under conditions provided by for the office in acquiescence by the
law, to render personal military or civil service (Sec. 4, Art. II, question; public;
1987 Const.);
(3) must be lawfully (3) Actual physical
chosen to such possession of the
(2) When a person who, having been elected by popular office; office in good faith
election to a public office, refuses without legal motive to be NOTE: this is not
sworn in or to discharge the duties of said office (Art. 234, (4) must have qualified absolutely true. An
RPC; Note: the penalty shall be either arresto mayor, or a himself to perform intruder or usurper may
fine not exceeding P 1,000.00, or both) the duties of such ripen into a de facto
office according to officer.
the mode
(3) Principle of “Posse Commitatus” prescribed by law.

No Presumption of Power Basis of Right: he has the lawful Reputation: Has the
Authority right / title to the office possession and performs
the duties under color of
In Villegas v Subido, nothing is better settled in the law right, without being
than that a public official exercises power, not rights. The technically qualified in all
points of law to act
government itself is merely an agency through which the will
of the state is expressed and enforced. Its officers therefore How ousted Cannot be ousted. Only by a direct
are likewise agents entrusted with the responsibility of proceeding (quo
discharging its functions. As such, there is no presumption warranto); not collaterally
that they are empowered to act. There must be a delegation
of such authority, either express or implied. In the absence of Validity of Valid, subject to Valid as to the public until
official acts exceptions (e.g., they such time as his title to
a valid grant, they are devoid of power.
were done beyond the the office is adjudged
scope of his authority, insufficient.
etc.)

Rule on Entitled to compensation Entitled to receive

CLASSIFICATION OF PUBLIC OFFICERS Compensatio as a matter of right; compensation only during
n the time when no de jure
The principle of "no work, officer is declared;
no pay" is not applicable
DE FACTO OFFICERS to him. He is paid only for actual
services rendered by him.
A DE FACTO OFFICER is one who has the reputation of
being the officer that he assumes to be, and yet is not a good
officer in point of law (Torres v Ribbo, 81 Phil 44). He must DE FACTO INTRUDER
have acted as an officer for such length of time, under color of
Nature Officer under any of the 4 One who takes
title and under such length of time and under such circumstances discussed possession of an office
circumstances of reputation or acquiescence by the public under Part II (above). and undertakes to act
and the public people, without inquiry, and relying on the officially without any
supposition that he is the officer he assumes to be, to submit authority, either actual or
to or invoke his action. apparent

Basis of Color of right or title to None. He has neither

Q: When is a person a de facto officer? authority office lawful title nor color of
A: Where the duties of the office are exercised under any of right or title to office.
the following circumstances:
(1) Without a known appointment or election, but under such Validity of Valid as to the public until Absolutely void; they can
circumstances of reputation or acquiescence as were "official" acts such time as his title to be impeached at any time
the office is adjudged in any proceeding (unless
calculated to induce people, without inquiry, to submit to insufficient and until he continues to
or invoke his action, supposing him to the be the officer act for so long a time as
he assumed to be; or to afford a presumption of
his right to act)
(2) Under color of a known and valid appointment or election,
Rule on Entitled to receive Not entitled to
but where the officer has failed to conform to some
compensation compensation only during compensation at all.
precedent requirement or condition (e.g., taking an oath the time when no de jure
or giving a bond); officer is declared;

(3) Under color of a known election or appointment, void
because:
(a) the officer was not eligible;
(b) there was a want of power in the electing or
appointing body;
(c) there was a defect or irregularity in its exercise;
such ineligibility, want of power, or defect being unknown
to the public.
(4) Under color of an election or an appointment by or
pursuant to a public, unconstitutional law, before the
same is adjudged to be such.
Note: Here, what is unconstitutional is not the act
creating the office, but the act by which the officer is
He is paid only for actual
services rendered by him.
Q: Can an intruder / usurper ripen into a de facto officer?
A: Yes. With the passage of time, a presumption may be
created in the minds of the public that the intruder has a right
to act as a public officer.
Q: Is good faith a factor in the ripening of intruder status
into de facto status?
A: Yes. HOWEVER, it must be noted that the good faith
must be on the part of
the public; not on the part of the intruder.
Q: What is the de facto doctrine?
A: It is the principle which holds that a person, who, by the
proper authority, is admitted and sworn into office is deemed
to be rightfully in such office until:
(a) by judicial declaration in a proper proceeding he
is ousted therefrom; or
(b) his admission thereto is declared void.
Q: What is the purpose for the doctrine?
A: It is to ensure the orderly functioning of government. The
public cannot afford to check the validity of the officer's title
each time they transact with him.
In Malaluan v COMELEC, Mar 6, 1996, the COMELEC,
finding merit in Evangelista’s appeal from the RTC, ordered
Malaluan to vacate the office of mayor and to pay
Evangelista’s atty’s fees, actual expenses, unearned salary
and other emoluments, obviously considering Malaluan a
usurper, in as much as he was ordered proclaimed only by the
RTC. The SC deemed the award of salaries and other
emoluments improper, holding that Malaluan was not a
usurper but a de facto officer, having exercised the duties of
the elective office under color of election (having been
declared winner by the RTC).
Examples of De Facto Officers
 A judge who continued to exercise his duties after his
appointment was disapproved by the CA according to a
newspaper report, but before receiving the official notification
regarding the rejection of his appointment (Regala v. Judge of
CFI);
 A lawyer instructed by the Acting Provincial Governor to
file an information for homicide, where the latter had no
authority to designate him as assistant fiscal, and where the
DOJ had not authorized him to act as such (People v.
Penesa);
 A third-ranking councilor who is designated to act as
mayor by an officer other than the proper appointing authority
prescribed by law, and lacking the consent of the Provincial
Board (Codilla v. Martinez)
Examples of Those Not Considered as De Facto Officers
 A judge who has accepted an appointment as finance
secretary and yet renders a decision after having accepted
such appointment (Luna v. Rodriguez);
 A judge whose position has already been abolished by
law, and yet promulgates a decision in a criminal case after
the abolition and over the objection of the fiscal (People v. So)
Legal Effect of Acts of De Facto Officers
As regards the officers themselves
GENERAL RULE: A party suing or defending in his
own right as a public officer must show that he is an officer de
jure. It is not sufficient that he be merely a de facto officer.
As regards the public and third persons
GENERAL RULE: The acts of a de facto officer are
valid as to third persons and the public until his title to office is
adjudged insufficient.
Official Acts of De Facto Officers Not Subject to Collateral
Attack
RULE: The title of a de facto officer and the validity of his acts
cannot be collaterally questioned in proceedings to which he
is not a party, or which were not instituted to determine the
very question.
REMEDY: Quo warranto proceedings
Who may file:
(1) The person who claims to be entitled to the office;
(2) The Republic of the Philippines, represented by
(a) the Solicitor-General; or
(b) a public prosecutor
A QUO WARRANTO PROCEEDING is a special civil
action, a demand by the state upon some individuals or
corporations to show by what right they exercise, some right
or privilege appertaining to the state which according to the
Constitution and the laws of the land, they can legally
exercise by virtue of grant or authoryt from the state.
The writ of quo warranto is never directed to an office,
as such, but always against the person (Mendoza v Allas,
392 SCRA 623).
In the case of Tarrosa v Singson, 232 SCRA 555,
Tarrosa has no standing in his capacity as a tax payer in
questioning the legality of the appointment of Singson, as
Governor of BSP. Tarrosa is not a person claiming to be
entitled to said office or position even unlawfully held and
exercised by Singson. Moreover, he failed to prove that he
is entitled to the subject position.
In Nuenes v. Angeles, in this case, there were four (4)
petitioners seeking to oust six (6) Board Members. The
Court held that this could not be done unless all 4 of them
were entitled to the offices of the 6.
Liabilities of De Facto Officers
 The liability of a de facto officer is generally held to be
the same degree of accountability for official acts as that of a
de jure officer.
 The de facto officer may be liable for all penalties
imposed by law for any of the following acts:
(a) usurping or unlawfully holding office;
(b) exercising the functions of public office without lawful
right;
(c) not being qualified for the public office as required
by law.
 The de facto officer cannot excuse his responsibility for
crimes committed in his official capacity by asserting his de
facto status.
CLASSIFICATION OF CIVIL SERVICE
APPOINTMENTS
The purpose of the Civil Service Law is to
professionalize and improve efficiency in performing public
functions. Hence, to promote good governance and integrity
in public office.
In Meram v Edralin, 154 SCRA 238, the court ruled that
the very purpose of the Civil Service Law dictates that
persons who are qualified and next in rank should be given
preferential consideration when filing up a vacated position.
Appointments under the Civil Service Law should be based
on merits and fitness system and NOT on blood ties.
The Civil Service embraces all branches, subdivisions,
instrumentalities, and agencies of the government, including
government owned or controlled corporations with original
charters (Art IX-C, Sec 2(1)).
One of the objectives of the CS Law is to avoid
nepotism.
In Eugenio v. CSC, the ruled that the CSC has no power
to abolish CESB because CESB is created by law (PD 1).
Thus, it can only be abolished by the legislature. In the case
at bar, the Congress had not yet enacted a law abolishing
CESB, therefore, CSC has no authority to abolish CESB.
In Rubenicia v CSC, May 31, 1995, the court ruled that
the CSC has the power to effect changes in the Merit
System and Protection Board (MSPB).
The relocation to the Commission of the functions of the
MSPB relating to the determination of administrative
disciplinary cases were the changes prescribed by the
Commission in its effort to “streamline the operation of the
CSC” which in turn required the “simplification systems,
cutting of red tapes and elimination of an unnecessary
bureaucratic layer”. The previous procedure made it difficult
for cases to be finally resolved within a reasonable period of
time. The change, therefore, was moved by the quite
legitimate objective of simplifying the course that
administrative disciplinary cases be decided at a reasonable
time.
Another reason is that since MSPB is part and parcel of
the internal organization of the Commission, thus, not an
autonomous entity created by law BUT merely attached for
administrative purposes of the CSC.
ELIGIBILITY, which is the term usually used in reference
to the Civil Service Law, refers to the endowment/
requirement / accomplishment that fits one for a public office.
CLASSIFICATION OF CIVIL SERVICE APPOINTMENTS
UNDER PD 807 & EO 292:
(1) Career Service.
This class is characterized by (i) entrance based on merit
and fitness to be determined, as far as practicable by
competitive examinations, or based on a highly technical
qualifications, opportunity for advancement of a higher career
positions, and (ii) security of tenure.
Note: Person appointed to a career service cannot be
removed from office except provided by law and with just
cause.
In Palmera v. CSC, security of tenury means that no
officer or employee in the Civil Service shall be suspended or
removed except for cause provided by law and after due
process.
POSITIONS INCLUDED ARE:
(a) Open career positions – prior qualification in an
appropriate examination is required;
(b) Closed career positions – e.g. scientific or highly
technical in nature;
(c) Career executive service – appointee is required to
possess the appropriate Career Executive Service Officer
(CESO) eligibility. e.g undersecretaries, bureau directors,
etc.;
Two (2) Requisites that must concur to attain security of
tenure:
(i) career executive service eligibility; and
(ii) appointment to the appropriate career executive
service rank.
It must be stressed that the security of tenure of
employees in the career service executive (except 1st and
2nd level employees in the civil service) pertains only to
rank and not to the office or to the position to which may
be appointed. Thus, a career executive service officer
may be transferred or reassigned from one position to
another without losing rank which follows him wherever
he is transferred or reassigned.
Accordingly, where the appointee does not possess
the required career executive service eligibility, his
appointment will not attain permanency.
In Achacoso v Macaraig, 195 SCRA 235, security of
tenure does not lie if the person appointed to a CES position
is ineligible.
CAREER LEVEL:
(1) Professional – person appointed cannot exercise his
discretion. The security of tenure of the person appointed is
with regards to the position.
(2) Sub-professional – the nature of job is technical,
supervisory and scientific. Also, the security of tenure is with
regard to the position.
(3) Career Executive – security of tenure is with regard to
rank.
(d) Career officers (other than those belong to the Career
Executive service) – appointed by the Pres.;
(e) Positions in the AFP, although governed by a separate
merit system;
(f) Personnel of government-owned or controlled
corporations with original charter; and
(g) Permanent laborers, whether skilled, semi-skilled, or
unskilled.
NOTE: General Rule: a non-eligible cannot be appointed to
a position in career service.
Exception: When there is urgency for filing the position
and the vacancy pertains to a non-permanent position.
(2) Non-career Service.
Characterized by: (i) entrance on bases other than
those of the usual tests utilized for the career service, (ii)
tenure limited to a period specified by law, or which is co-
terminous with that of the appointing authority or subject to
his pleasure. Or which is limited to the duration of a
particular project for which purpose the employment was
made.
OFFICERS/EMPLOYEES INCLUDED:
(a) elective officials, and their personal and confidential
staff;
(b) department heads and officials cabinet rank who hold
office at the pleasure of the President, and their
personal and confidential staff;
(c) chairman and members of the commissions and boards
with fixed terms of office, and their personal and
confidential staff;
(iv) Contractual personnel or those whose employment in
government is in accordance with a special contract to
undertake a specific work or job requiring special or
technical skills not available in the employing agency, to
be accomplished within a specific period not exceeding
1 yr, under their own responsibility, with the minimum
direction and supervision; and
(v) emergency and seasonal personnel.
In Montecillo v. CSC, Jun 28, 2001, SC ruled that under
Admin Code of 1987, the CSC is expressly empowered to
declare positions in the Civil Service as primarily
confidential. Hence, the above enumeration is not an
exclusive list. The Commission can supplement this above
enumeration.
In Orcullo v. CSC, May 22, 2001, SC classified the co-
terminous status, as follows: (i) co-terminous with the
project; (ii) co-terminous with the appointing authority; (iii)
co-terminous with the incumbent; and (iv) co-terminous with
the specific period.
CLASSIFICATION OF CIVIL SERVICE APPOINTMENTS
UNDER THE CONSTITUTION:
(1) Competitive positions.
Appointment is based on the merit and fitness system.
(2) Non-competitive positions.
Apointments not based on merits and fitness system.
These are appointments which are usually:
(i) Policy determining – The officer lays down principal or
fundamental guidelines or rules; or formulates a method of
action for government or any of its subdivisions (eg.
Department Heads)
(ii) Primarily confidential – It denotes not only confidence in
the aptitude of the appointee for the duties of the office but
primarily close intimacy which ensures freedom of
intercourse without embarrassment or freedom from
misgivings or of the Philippines upon the recommendation of
the CSC.
In CSC and PAGCOR v Salas, SC laid down two
instances when a position may be considered primarily
confidential, they are as follows: (a) when the President,
upon the recommendation of the CSC, has declared the
position to be primarily confidential; and (b) close intimacy
which ensures freedom of intercourse without embarrassment
or freedom from misgivings or of the Philippines upon the
recommendation of the CSC. Hence, in this case, a position
to as member of the Internal Security Staff is NOT a primarily
confidential because the nature of its functions which the court
found are just routinary duties that do not show close intimacy
with PAGCOR Chairman. Also, the fact that said position is
two positions away from the Chairman.
In Montecillo v. CSC, Jun 28, 2001, SC ruled that under
Admin Code of 1987, the CSC is expressly empowered to
declare positions in the Civil Service as primarily confidential.
Hence, the above enumeration is not an exclusive list. The
Commission can supplement this above enumeration.
In Delos Santos v Mallare, the SC enunciated the
principle of “PROXIMITY RULE”, which is still authoritative
until now, -- that the occupant of a particular position could be
considered a confidential employee if the predominant reason
why he was chosen by the appointing authority was the
latter’s belief that he can share a close intimate relationship
with the occupant which ensures freedom of discussion
without fear of embarrassment or misgivings of possible
betrayals of personal trust and confidential matters of the
state.
In Cadiente v Santos, 142 SCRA 280, the position of a
City Legal Officer is primarily confidential, requiring the utmost
degree of confidence on the part of the Mayor.
In Grino v. CSC, 94 SCRA 450, the position of a Privincial
Attorney is primarily confidential, hence, the removal of
Angela is valid. The power to removed an employee of
primarily confidential position rest upon the person who
possess the power to appoint or the person who appointed
him. But as to the legal staff, the removal is void. The
position of these subordinates are remote from that of the
appointing authority, the element of trust between them is no
longer predominant.
In Santos v. Macaraig, The position of a Philippine
Representative (Ambassador) is primarily confidential.
Hence, no security of tenure attached.
(iii) Highly technical – This requires possession of technical
skill or training in a supreme or superior degree.
In Besa v PNB, the position of legal counsel of the PNB
was declared both primarily confidential and highly technical.
RULE ON GOVERNMENT-OWNED OR ONTROLLED
CORPORATIONS
Officers and employees of a government-owned or
controlled corporations created by special law, with original
charter, are governed by the Civil Service Law.
On the other hand, officer and employees of a GOCC’s
created by a general law, without original charter, are
governed by the Labor Code.
The test to determine what law shall govern is whether or
not the GOCC’s has an original charter.
The following are GOCC’s with original charter:
(1) Boy Scout of the Philippines – created by CA 111 (An Act
to Create a Public Corporation to be known as BSP).
(2) Local Water Districts – created by PD 198
(3) Philippine National Red Cross – created by RA 95
(1) Philippine Postal Corporation – created by RA 7354
GOCC’s without original charter:
(1) Philippine National Construction Corporation – general
law
(2) Philippine Veterans Bank – no charter of its own, a
private corporation.
NOTE: Estoppel applies in GOCC’s – In the case of ZCWD v
Buat, 232 SCRA 589, general rule is that, a water district with
an original charter is a GOCC governed by the CS Law CS
Rules and Regulations. The exception to this rule is that,
when the corporation questioning the jurisdiction participated
actively in the proceedings in NLRC, and in fact, sought
relief therefrom.
QUALIFICATIONS OF LOCAL ELECTIVE
OFFICIAL
QUALIFICATION generally refers to the endowment / act
which a person must do before he can occupy a public
office.
Sec 39, LGC of 1991, provides that:
(a) An elective local official must be:
(i) a citizen of the Philippines;
(ii) a registered voter in the barangay, municipality,
city, or province or, in case of a member of the
sanguniang panlalawigan, sangguniang
panglungsod, or sangguniang bayan, the district
where he intends to be elected;
(iii) a resident therein for at least one year immediately
preceding the day of election; and
(iv) able to read and write.
AGE QUALIFICATIONS
(b) Candidates for the position of governor, vice-governor,
or member of the snagguniang panlalawigan, or mayor,
vice-mayor or member of the sangguniang panglungsod
of highly urbanized cities must be at least twenty-three
years of age on election day.
(c) Candidates for the position of mayor or vice-mayor of
independent component cities, component cities, or
municipalities must be at least twenty-one years of age
on election day.
(d) Candidates for the position of member of the
Sangguniang panglungsod or sangguniang bayan must
be at least eighteen years of age on election day.
(e) Candidates for the position of punong barangay or
member of the sangguniang barangay must at least
eighteen years of age on election day.
(f) Candidates for the sangguniang kabataan must be at
least fifteen years but not more than twenty-one years
of age on election day.
GENERAL RULE: Congress is empowered to prescribe
the qualifications for holding public office, subject to the
following restrictions:
(1) Congress cannot exceed its constitutional powers;
(2) Congress cannot impose conditions of eligibility
inconsistent with constitutional provisions;
(3) The qualification must be germane to the position
("reasonable relation" rule);
(4) Congress cannot prescribe qualifications so detailed as
to practically amount to making an appointment.
(Legislative appointments are unconstitutional and
therefore void for being a usurpation of executive
power.);
(5) Where the Constitution establishes specific eligibility
requirements for a particular constitutional office, the
constitutional criteria are exclusive, and Congress
cannot add to them except if the Constitution expressly
or impliedly gives the power to set qualifications.
Q: What legislative enactments are tantamount to legislative
appointments?
A: (1) Extensions of the terms of office of the incumbents;
(2) The People's Court Act, which provided that the
President could designate Judges of First Instance,
Judges-at-large of First Instance or Cadastral Judges to
sit as substitute Justices of the Supreme Court in treason
cases without them necessarily having to possess the
required constitutional qualifications of a regular Supreme
Court Justice. (Vargas v. Rilloraza);
(3) A proviso which limits the choices of the appointing
authority to only one eligible, e.g. the incumbent Mayor of
Olongapo City (Flores v. Drilon);
(4) A legislative enactment abolishing a particular office and
providing for the automatic transfer of the incumbent
officer to a new office created (contemplated in
Manalang v. Quitoriano);
(5) A provision that impliedly prescribes inclusion in a list
submitted by the Executive Council of the Phil. Medical
Association as one of the qualifications for appointment; and
which confines the selection of the members of the Board of
Medical Examiners to the 12 persons included in the list
(Cuyegkeng v. Cruz) ;
POLITICAL QUALIFICATIONS
GENERAL RULE: Political qualifications are not required
for public office.
Exceptions:
(1) Membership in the electoral tribunals of either the
House of Representatives or Senate (Art. VI, Sec.
17, 1987 Const.);
(2) Party-list representation;
(3) Commission on Appointments;
(4) Vacancies in the Sanggunian (Sec. 45, Local
Government Code)
Property Qualifications
In the cases of Maquera v. Borra and Aurea v.
COMELEC, the Supreme Court struck down R.A. 4421 which
required candidates for national, provincial, city and municipal
offices to post a surety bond equivalent to the one-year salary
or emoluments of the position to which he is a candidate,
which shall be forfeited in favor of the govt. concerned if the
candidate fails to obtain at least 10% of the votes cast.
The Supreme Court held that property qualifications are
inconsistent with the nature and essence of the Republican
system ordained in our Constitution and the principle of social
justice underlying the same. The Court reasoned out that:
"Sovereignty resides in the people and all government
authority emanates from them, and this, in turn, implies
necessarily that the right to vote and to be voted shall not
be dependent upon the wealth of the individual concerned.
Social justice presupposes equal opportunity for all, rich
and poor alike, and that, accordingly, no person shall, by
reason of poverty, be denied the chance to be elected to
public office."
Q: When must the qualifications be possessed?
A: Where the time is specified by the Constitution or law: At
the time specified
Where the Constitution or law is silent:
There are 2 views:
(1) qualification must be at the time of commencement of
term or induction into office;
(2) qualification / eligibility must exist at the time of the
election or appointment
* Eligibility is a continuing nature, and must exist throughout
the holding of the public office. Once the qualifications are
lost, then the public officer forfeits the office.
QULIFICATION STANDARS
 Express the minimum requirements for a class of
positions in terms of education , training and experience, civil
service eligibility, physical fitness, and other qualities
required for successful performance. (Sec. 22, Book V, EO
292)
 A statement of the minimum qualifications of a position
which shall include education, experience, training, civil
service eligibility, and physical characteristics and
personality traits required by the job. (Sec. 2, Rule IV,
Omnibus Rules)
 With respect to a particular position, such qualification
standards shall serve as the basis for the determination by
the appointing authority of the degree of qualifications of an
officer or employee (ibid);
 Shall be used as basis for civil service examinations for
positions in the career service, as guides in appointment and
other personnel actions, in the adjudication of protested
appointments, in determining training needs, and as aid in
the inspection and audit of the agencies' personnel work
programs (ibid);
 Shall be administered in such manner as to continually
provide incentives to officers and employees towards
professional growth and foster the career system in the
government service (ibid);
 It shall be the responsibility of the departments and
agencies to establish, administer and maintain the
qualification standards on a continuing basis as an incentive
to career advancement. (Sec. 7, Rule IV, Omnibus Rules)
 Their establishment, administration, and maintenance
shall be the responsibility of the department / agency, with
the assistance and approval of the CSC and in consultation
with the Wage and Position Classification Office (ibid);
 Whenever necessary, the CSC shall provide technical
assistance to departments and agencies in the development
of their qualification standards. (Sec. 5, Rule IV, Omnibus
Rules)
 Shall be established for all positions in the 1st and 2nd
levels (Sec. 1, Rule IV, Omnibus Rules);
DISQUALIFICATIONS OF LOCAL
ELECTIVE OFFICIAL
Sec 40, LGC of 1991, provides that:
The following persons are from running for any elective local
position:
(a) Those sentenced by final judgment for an offense
involving moral turpitude or for an offense punishable by
one year or more of imprisonment, within two years after
serving sentence;
In Dumlao v. COMELEC, 95 SCRA 400, the part pf the
law which provided that mere filing of a criminal information
for disloyalty was prima facie proof of guilt, and thus
sufficient to disqualify a person running for public office, was
held unconstitutional for being contrary to the constitutional
presumption of innocence.
In De Guzman v Zubido, 120 SCRA 443, the court said
that not all violations of national statutes or ordinances are
ground for disqualification to hold appointive or elective
public office. An offense to be considered as a a
disqualification is that the offense should be intrinsically
criminal and of public character. It must be an offense
involving moral turpitude.
(b) Those removed from office as result of an administrative
case;
(c) Those convicted by final judgment for violating the oath of
allegiance to the Republic;
(d) Those with dual citizenship;
In the case of Mercado v. Manzano, 307 SCRA 630 (1999)
the court held that: Dual cit’p is different from dual allegiance
frowned upon by the 1987 Consti. The former arises when,
as a result of the concurrent application of different laws of
two or more states, a person is simultaneously is considered a
national by the said states. Dual cit’p, on the other hand,
refers to the situation in which a person simultaneously owes,
by some positive act, to two or more states. While dual cit is
involuntary, dual allegiance is the result of individual’s volition.
The concern of the framers of the Consti was not with dual cit
per se, but with dual allegiance. Hence, the phrase dual cit’p
in RA No. 7160 must be understood as referring to dual
allegiance. Consequently, persons with mere dual cit’p do not
fall under the disqualification. Unlike those with dual
allegiance, who must, therefore, be subject to the strict
process with respect to the termination of their status, for
candidates with dual cit’p, it would suffice if upon the filing of
their certificate of candidacy, they elect Phil cit’p to terminate
their status as persons with dual cit. Thus , Mercado is
qualified because when he filed his certificate of candidacy,
he elected Phil cit’p and in effect renounced his Amer cit’p.
In Frivaldo v COMELEC, the court said that the
citizenship requirement must be met only on election day.
While the Local Government Code requires one year
residency immediately preceding election day and the
prescribed age on election day, no date is specified for
citizenship. The purpose of the citizenship requirement is to
ensure leaders owing allegiance to no other country. Such
purpose is not thwarted, but instead achieved by construing
the requirement to apply at time of proclamation and at the
start of the term.
In the case of Labo v. COMELEC, Aug 1, 1989, Labo's
first contention is irrelevant. He became an Australian citizen
by virtue of naturalization and not by marriage.
The second argument is specious w/c cannot stand against
the clear provisions of CA No. 63, w/c enumerates the modes
by w/c Phil. citizenship may be lost, and among them are (1)
naturalization in a foreign country; (2) express renunciation of
citizenship; and (3) subscribing to an oath of allegiance to
support the Consti. or laws of a foreign country, all of w/c are
applicable to petitioner. Under Article IV, Section 5, "dual
allegiance of citizen is inimical to the national interest and
shall be dealt with by law."
xxx Even if it be assumed that, as petitioner asserts, his
naturalization was annulled after it was found that his
marriage was bigamous, that circumstance alone did not
automatically restore his Phil. citizenship. His divestiture of
Australian citizenship does not concern us here. That is a
matter between him and his adopted country. What we must
consider is the fact that he voluntarily and freely rejected Phil.
citizenship and willingly and knowingly embraced the
citizenship of another country. The possibility that he may
have been subsequently rejected by Australia does not mean
that he has been automatically reinstated as a Phil. citizen
Phil. citizenship may be reacquired by direct act of congress,
by naturalization or by repatriation. It does not appear that
petitioner has reacquired Phil. citizenship by any of these
methods.
In Aznar v. COMELEC, the court ruled that a person who
both an American And Filipino citizen can validly run for public
office. The act of filing the certificate of candidacy is sufficient
to revoke his American citizenship.
In Bengzon v HRET, the court held: As distinguished from
the lengthy process of naturalization, repatriation simply
consists of taking of an oath of allegiance and registering said
oath in the Local Civil Registrar. Moreover, repatriation
results in the recovery of the original nationality. This means
that, if he was originally a natural born citizen before he lost
his Phil cit., he will be restored to his former status as a
natura-born Fil. As Cruz was not required by law to go
through naturalization proceedings in order to reacquire his
citizenship, he is a natural born Fil. As such, he possessed
all the necessary qualifications to be elected as a member of
the House of Rep.
(e) Fugitives from justice in criminal or non-political cases
here or abroad;
(f) Permanent residents in a foreign country or those who
have acquired the right to reside abroad and continue to
avail of the same right after the effectivity of this code;
and
In the case of Caasi v CA, 191 SCRA 229, the court
said that a candidate for election who is a green card holder
must have waived his status as a permanent resident or
immigrant of a foreign country. His act of filing of candidacy
did not itself constitute a waiver of his status as a permanent
resident or immigrant of the US. The waiver of his green
card should be manifested by some act or acts independent
of and done prior to the filing for candidacy.
(g) The insane or feeble-minded
NOTE: In the case of Lingating v COMELEC, 391 SCRA
629, the ruled that Sec 40, LGC of 1991, does not apply
when the decision has not yet become final. In the case at
bar, the decision of SP has not yet attained finality at the
time of the election due to the timely appeal made by Sulong
which was still unresolved.
HOWEVER, in the case of Reyes v. COMELEC, the
decision has long been final and executorybcause of the
refusal to accept the service of decision. The refusal of the
party counsel to receive a decision may be construed as a
waiver on his part to have a copy of the decision. Indeed the
failure to serve the decision was attributable to petitioner and
his counsel.
The legislature has the right to prescribe
disqualifications in the same manner that it can prescribe
qualifications, provided that the prescribed disqualification do
not violate the constitution.
Aliens Not Eligible to Public Office
This is self-explanatory.
Q: What happens if the qualification is lost which the officer
is holding office?
A: The officer must be terminated. But take note that it is
not automatic. The loss, then becomes the ground for
termination.
Effect of Pardon Upon Disqualification to Hold Public Office
GENERAL RULE: A pardon shall not work the
restoration of the right to hold public office. (Art. 36, Revised
Penal Code)
Exceptions:
(1) Where such right to hold public office is expressly
restored by the terms of the pardon (Art. 36, RPC);
(2) When a person is granted pardon because he did not
commit the offense imputed to him (Garcia v. Chairman,
COA)
Rules governing effects of pardon:
(1) A public official who has been convicted of a crime but
has been pardoned must secure a reappointment before
he / she can reassume his / her former position.
(Monsanto v. Factoran)
Note: Acquittal is the only ground for automatic
reinstatement of a public officer to his / her former position.
(2) Pardon does not exempt the culprit from payment of the
civil indemnity imposed upon him / her by the sentence.
(Art. 36, par. 2, RPC)
(3) A convicted public official who has been pardoned is not
entitled to backpay and other emoluments due to him
during the period of his suspension pendente lite.
(Monsanto v. Factoran)
DOCTRINES LAID BY THE COURT:
In Manalang v. Quitoriano, the court ruled that the
Congress cannot either appoint a public officer or impose
upon the President the duty to appoint any particular person
to an office. The appointing power is the exclusive prerogative
of the President, upon which no limitations may be imposed
by Congress, except those resulting from:
(1) the need of securing the concurrence of the Commission
on Appointments; and
(2) the exercise of the limited legislative power to prescribe
the qualifications to a given appointive office.
In Cuyegkeng v Cruz, SC said that the power of
appointment vested in the President by the Constitution
connotes necessarily a reasonable measure of freedom,
latitude, or discretion in the exercise of the power to choose
appointees.
In Flores v Drilon, where only one can qualify for the
posts in question, the President is precluded from exercising
his discretion to choose whom to appoint. Such supposed
power of appointment, sans the essential element of choice, is
no power at all and goes against the very nature itself of
appointment.
Castaneda v. Yap – Knowledge of ineligibility of a
candidate and failure to question such ineligibility before or
during the election is not a bar to questioning such eligibility
after such ineligible candidate has won and been proclaimed.
Estoppel will not apply in such a case.
In Aquino v COMELEC, court said that in residency of not
less than 1 year prior to the elections for the position of
Congressman. In election law, residence refers to domicile,
i.e. the place where a party actually or constructively has his
permanent home, where he intends to return. To
successfully effect a change of domicile, the candidate must
prove an actual removal or an actual change of domicile.
Here, it was held that leasing a condominium unit in the
district was not to acquire a new residence or domicile but
only to qualify as a candidate.
In Marcos v COMELEC, domicile, which includes the twin
elements of actual habitual residence, and animus manendi,
the intention of remaining there permanently. It was held that
domicile of origin is not easily lost, and that in the absence of
clear and positive proof of a successful change of domicile,
the domicile of origin should be deemed to continue.
ASSUMPTION AND TERM OR TENURE OF OFFICE
Qualification
Appointment and Qualifications to Office Distinguished
Appointment and qualification to office are separate and
distinct things. Appointment is the act of being designated to
a public office by the appointing authority. Qualification is
the act of signifying one's acceptance of the appointive
position. This generally consists of the taking / subscribing /
filing of an official oath, and in certain cases, of the giving of
an official bond, as required by law. (Mechem)
No one can be compelled to accept an appointment.
Lacson v. Romero
The appointment to a government post involves several
steps: (1) the President nominates; (b) the Commission on
Appointments confirms the appointment; and (c) the
appointee accepts the appointment by his assumption of
office. The first 2 steps are mere offers to the post but the
last step rests solely with the appointee who may or may not
accept the appointment.
Borromeo v. Mariano
A judge may not be made a judge of another district
without his consent. Appointment and qualification to office
are separate and distinct things. Appointment is the sole act
of the appointee. There is no power which can compel a
man to accept the office.
Effect of Failure to Qualify
 Failure to qualify is deemed evidence of refusal of the
office.
 It is a ground for removal:
If qualification is a condition precedent:
- Failure to qualify ipso facto is deemed rejection of the
office
If not condition precedent:
- Failure is not ipso facto rejection
 Justifiable reasons for delay in qualifying include
sickness, accident, and other fortuitous events that excuse
delay.
 The Omnibus Election Code provides that the officer
must qualify (i.e., take his oath of office and assume office)
within 6 months from proclamation. Otherwise, the position
will be deemed vacant.
Exception: If the non-assumption of office is due to a
cause beyond his control.
 Qualification is significant because it designates when
security of tenure begins.
Oath of Office
 An oath is an outward pledge whereby one formally
calls upon God to witness to the truth of what he says or to
the fact that he sincerely intends to do what he says.
 Although the law usually requires the taking of an oath,
it is not indispensable. It is a mere incident to the office and
constitutes no part of the office itself. However, the
President, Vice-President and Acting President are required
by the Constitution (Art. VII, Sec. 5) to take an oath or
affirmation before entering into the execution of their office.
Such oath-taking is mandatory.
Q: Who are authorized to administer oaths?
A: (1) Notaries public;
(2) Judges;
(3) Clerks of court;
(4) Secretary of House / Senate;
(5) Secretary of Exec. Departments;
(6) Bureau Directors;
(7) Register of Deeds;
(8) Provincial governors;
(9) City mayors;
(10) Municipal mayors;
 (11) Any other officer in the service of the government of
the Philippines whose appointment is vested in the
President;
(12) Any other officer whose duties, as defined by law or
regulation, require presentation to him of any statement
under oath
Q: Who are obliged to administer oaths in all instances, and
not just in matters of official business?
A: (1) Notaries public;
2 (2) Municipal judges;
3 (3) Clerks of court
Time of Taking the Oath of Office
A public officer must take his oath of office before
entering upon the discharge of his duties.
Requalification
If a public officer is re-elected or re-appointed, he must
take another oath and fulfill the other condition precedents
before assuming office. The oath and other qualifications
made prior to assumption of his previous office will not be
valid for subsequent terms of office.
Giving of Bonds
Persons Required to Give Bonds
Q: Who are the public officers generally required to give a
bond?
A: (1) Accountable public officers or those to whom are
entrusted the collection and custody of public money;
(2) Public ministerial officers whose actions may affect the
rights and interests of individuals.
The bond is in the nature of an indemnity bond rather
than a penal or forfeiture bond.
The bond is also an obligation binding the sureties to make
good the officer’s default. It is required not for the benefit of
the office holder, but for the protection of the public interest
and is designed to indemnify those suffering loss or injury by
reason of misconduct or neglect in office.
Effect of Failure to Give Bond Within the Prescribed Period
If not condition precedent:
- Failure to give bond merely constitutes a ground for
forfeiture of the office; it is not forfeiture of the office ipso
facto.
IF condition precedent:
- Failure to give bond within the prescribed period renders the
office vacant.
Term and Tenure of Office
Term of Office Tenure of Office
Alba v. Evangelista
It is only in those cases in which the office is held at the
pleasure of the appointing power and where the power of
removal is exercisable at its mere discretion that the officer Fixed and definite period of
may be removed without notice or hearing. time during which the officer
may claim to hold the office
as of right.
Power of the Legislature to Fix and Change the Term of Office
RULES:
 Where the term is fixed
by the Constitution: Congress has no power to alter
the term.
However, such term of office can be shortened or
extended
by the vote of the people ratifying a constitutional
amendment.
 Where the term is not fixed:
Congress may fix the terms of officers other than those
provided for in the Const.
Congress has the power to change the tenure of officers
holding offices created by it. However, if the term is
lengthened and made to apply to the incumbents, this could
be tantamount to a legislative appointment which is null and
void.
When Term of Office Dependent Upon “Pleasure of the
President
Congress can legally and constitutionally make the
tenure of certain officials dependent upon the pleasure of the
President. (Alba v. Evangelista)
Where the office is held at the pleasure of the
appointing power and such appointing power can exercise
the power of removal at his mere discretion, the public officer
may be removed without notice or hearing. (Alba v.
Evangelista)
No Vested Interest in Term of Office
Public office is a privilege revocable by the sovereignty
at will. An incumbent cannot validly object to the alteration
of his term since he has no vested right in his office.
(Greenshow v. U.S.)
Term of Office Not Extended by Reason of War
There is no principle, law or doctrine by which the term
may be extended by reason of war. (Nueno, et al. v.
Angeles)
Doctrine of Hold–Over
Q: What is the doctrine of hold-over?
A: A public officer whose term has expired or services have
been terminated is allowed to continue holding his office until
his successor is appointed or chosen and had qualified.
(Mechem)
Purpose of the Hold-Over Rule
Public interest. It is to prevent a hiatus in the
government pending the time when a successor may be
chosen and inducted into office.
TERM TENURE
De Jure De Facto
Period during which the
incumbent actually holds the
office. It may be shorter
than the term.
Holding-Over Rules
(1) Where the law provides for it:
The office does not become vacant upon the expiration of
the term if there is no successor elected and qualified to
assume it. Incumbent will hold-over even if beyond the term
fixed by law.
(2) Where the law is silent:
Unless hold-over is expressly or impliedly prohibited,
incumbent may hold-over.
(3) Where the Constitution limits the term of a public officer
and
does not provide for hold-over:
Hold-over is not permitted.
Commencement of Term of Office
RULES:
(1) Where the time is fixed:
The term will begin on the specified date.
(2) Where no time is fixed:
The term will generally begin on the date of the election
or the appointment.
COMMENCEMENT OF OFFICIAL
RELATION
(a) Election
(b) Appointment
(c) Others:
(i) Succession by operation of law;
(ii) Direct provision of law, e.g. ex-oficio officers
Election: Selection or designation by a popular vote
Appointment
Q: Distinguish between designation and appointment.
Nature of Appointing Power Definition
The power to appoint is intrinsically an executive act
involving the exercise of discretion. (Concepcion v. Paredes)
The power and prerogative to a vacant position in the civil
service is lodged with the appointing authority.
Extent of
Powers
Discretion of Appointing Official Security of
tenure?
 Discretion, if not plenary, at least sufficient, should thus When deemed
be granted to those entrusted with the responsibility of abandonment
administering the officers concerned, primarily the department of prior office
heads. They are in the most favorable position to determine
who can best fulfill the functions of the office thus vacated.
Unless, therefore, the law speaks in the most mandatory and
peremptory tone, considering all the circumstances, there
should be, as there has been, full recognition of the wide
scope of such discretionary authority. (Reyes v. Abeleda)
 Appointment is an essentially discretionary power and
must be performed by the officer in which it is vested
according to this best lights, the only condition being that the
appointee should possess the qualifications required by law.
(Lapinid v. CSC)
 The only function of the CSC is to review the appointment
in the light of the requirements of the Civil Service Law, and
when it finds the appointee to be qualified and all other legal
requirements have been otherwise satisfied, it has no choice
but to attest to the appointment. It cannot order the
replacement of the appointee simply because it considers
another employee to be better qualified. (Lapinid v. CSC)
 To hold that the Civil Service Law requires that any
vacancy be filled by promotion, transfer, reinstatement,
reemployment, or certification in that order would be
tantamount to legislative appointment which is repugnant to
the Constitution. The requirement under the Civil Service
Law that the appointing power set forth the reason for failing
to appoint the officer next in rank applies only in cases of
promotion and not in cases where the appointing power
chooses to fill the vacancy by transfer, reinstatement,
reemployment or certification, not necessarily in that order.
(Pineda v. Claudio)
 The CSC is not empowered to change the 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 all the legal requirements are
satisfied, the CSC has no choice but to attest to the
appointment. (Luego v. CSC)
 Appointment is a political question.
 Where the palpable excess of authority or abuse of
discretion in refusing to issue promotional appointment
would lead to manifest injustice, mandamus will lie to compel
the appointing authority to issue said appointments.
(Gesolgon v. Lacson)
Q: When does an appointment take effect?
A: Immediately upon its issuance by the appointing
authority. (Rule V, Sec. 10, Omnibus Rules).
When Appoint Becomes Complete, Final and Irrevocable
GENERAL RULE: An appointment, once made, is
irrevocable and not subject to reconsideration.
Qualification: Where the assent, confirmation, or
approval of some other officer or body is needed before the
appointment may be issue and be deemed complete.
Exceptions: (1) When the appointment is an absolute nullity
DESIGNATION APPOINTMENT
Imposition of additional Selection of an individual
duties upon an existing to occupy a certain public
office office by one authorized
by law to make such
selection
Limited Comprehensive
No. Yes.
Assumption of a Assumption of a 2nd
designated position is not appointive position is
deemed abandonment of usually deemed
the 1st position abandonment of the first
office.
(Mitra v. Subido);
(2) When there is fraud on the part of the appointee
(Mitra v. Subido);
(3) Midnight appointments
A completed appointment vests a legal right. It
cannot be taken away EXCEPT for cause, and with previous
notice and hearing (due process).
CLASSIFICATION OF APPOINTMENT
(1) (a) Permanent appointment – extended to a person
possessing the requisite qualifications, including the
eligibility required, or for the position, and thus
 protected by the constitutional guarantee of security of
tenure; and
(b) Temporary Appointment – is an acting appointment.
It is extended to one who may not possess the requisite
qualifications or eligibility required by law for the
position, and is revocable at will, without the necessity
of just cause or a valid investigation.
In the case of Province of Camarines Sur v CA, July 14,
1995, the court held that “the acquisition of the appropriate
civil service eligibility by the temporary appointee will not ipso
facto convert the temporary appointment into a permanent
one; a new appointment is necessary.
In Achacoso v Macaraig, 195 SCRA 235, it was held that
an appointment to a position in the Service of the Civil Service
does not necessarily mean that the appointment is a
permanent one and that the appointee entitled to security of
tenure. Where the person does not possess the qualifications
for the position, the appointment is temporary and may be
terminated at will.
In Romualdez III v CSC, 197 SCRA 168, the acceptance
by the petitioner of a temporary appointment resulted in the
termination of official relationship with his former permanent
position. When then temporary appointment was not
renewed, the petitioner had no cause to demand
reinstatement thereto.
A mere designation does not confer security of tenure, as
the person designated occupies the position only in acting
capacity (Sevilla v. CA). This was reiterated in Gloria v de
Guzman, Oct 6, 1996, where it was held that private
respondents’ assignment as Coordinator of Extension
Services (CES) at PSCA was a mere designation; thus, not
being a permanent appointment, the designation to the
position cannot be the subject of a case for reinstatement.
In Orcullo v CSC, May 22, 2001, where the employment
is qualified by the phrase “unless terminated sooner”, it is
clear that even if the employment is co-terminous with the
project, the employee nevertheless serves at the pleasure of
the appointing authority.
However, where the temporary appointment is for a fixed
period, the appointment may be revoked only at the expiration
of the period, o, if revocation is made before such expiration,
the same has to be for a valid and just cause.
Provisional appointment is one which may be issued ,
upon prior authorization of the CSC, to a person who has not
qualified in an appropriate examination but who otherwise
meets the requirements for appointment to a regular position,
whenever a vacancy occurs and filing thereof is necessary in
the interest of the service and there is no appropriate register
of eligibles at the time of the appointment.
OTHER PERSONNEL ACTIONS
(1) PROMOTION – is a movement from one position to
another with increase in duties and responsibilities as
authorized by law and usually accompanied by an increase in
pay.
(i) Next-in-rank Rule.
The person next in rank shall be given preference in
promotion when the position immediately above his is
vacated. But the appointing authority still exercises
discretion and is not bound by this rule, although he is
required to specify the special reason or reasons for not
appointing the officer next-in-rank
This means that the one who is next-in-rank is given
only preferential consideration for promotion; but it does
not necessarily follow that he alone and no one else can
be appointed .
(ii) Automatic Reversion Rule.
Sec 13, Omnibus Rules Implementing Bk V, EO
292 States: “All appointments involved in a chain of
promotions must be submitted simultaneously for the
approval by the Commission. The disapproval of the
appointment of a person proposed to a higher position
invalidates the promotion of those in the lower positions
and automatically restores them to their former
positions. However, the affected persons are entitled to
appointments.”
(2) APPOINTMENT THROUGH CERTIFICATION – is
issued to a person who has been selected from the list of
qualified persons certified by the CSC from an appropriate
register of eligibles, and who meets all the qualifications
prescribed for the position.
(3) TRANSFER – is a movement from one position to
another which is of equivalent rank, level or salary without
break in service. Under current CS Rules and Regulations,
transfer may be imposed as an administrative penalty.
An uncontested transfer violates security of tenure. A
transfer that results in promotion or demotion, advancement
or reduction, or a transfer that aims to lure the employee
away from his permanent position, cannot be done without
the employee’s consent.
Indeed, no permanent transfer can take place unless
the officer or employee is first removed from the position
held, and then appointed to another position.
But in the case of Quisumbing v Judge Gumban, 193
SCRA 520, the appoinment of respondent Yap being that of
District Supervisor at large, she could be assigned to any
station, as she is not entitled to stay permanently at any
specific station.
(4) REINSTATEMENT – is technically the issuance of a
new appointment, which is essentially discretionary
discretionary; such exercise of the discretionary power
cannot be controlled even by the courts, as long as it is
properly exercised by the appointing authority.
Any person who has been permanently appointed to a
position in the career service and who has, through
delinquency or misconduct, been separated therefrom, may
be reinstated to a position in the same level for which he is
qualified.
In Gloria v Judge de Guzman, the court said that private
respondent’s subsequent acquisition of the appropriate civil
service eligibility is no reason to compel petitioner to
reappoint him. Acquisition of civil service eligibility is not the
sole factor for reappointment. Still to be considered 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,
considering that the position of Board Secretary II is primarily
confidential. Reappointment to such position is an act which
is discretionary on the part of the appointing authority; it
cannot be the subject of an application for a writ of
mandamus.
(5) DETAIL – is the movement of an employee from one
agency to another without the issuance of an appointment,
and shall be allowed only for a limited period in the case of
employees occupying professional, technical and scientific
positions. It is temporary in nature.
(6) REASSIGNMENT – An employee may be reassigned
from one organizational unit to another in the same agency
provided that such reassignment shall not involve a
reduction in rank, status or salary.
Reassignment is recognized as a management
prerogative vested in the Civil Service Commission and, for
that matter, in any department or agency embraced in the
Civil Service. It does not constitute removal without cause.
 Reassignment should have a definite date or duration. In
Padolina v Fernandez, the court said that the lack of specific
duration of the reassignment was tantamount to a floating
assignment, thus a diminution in status or rank. Resps were
deprive of emoluments, thus diminution in compensation.
Also, it removes supervision over 41 employees, thus
diminution in status.
In Fernandez v Sto Tomas, there was no violation of
security of tenure when there is no change in rank, status and
salary to their newly assigned stations. They also retained
their positions as Dir IV and V.
NOTE: Security of tenure in CES is acquired with respect to
rank, not to the position.
(7) REEMPLOYMENT – names of persons who have been
appointed permanently to a position to a career service and
who have been separated as a result of a reduction in force
and/or reorganization, shall be entered in a list from which
selection for employment shall be made.
(2) (a) Regular appointment – is one made by the President
while Congress is in session after the nomination is
confirmed by the Commission on Appointments and
continues until the end of the term.
Q: What are the steps in the appointing Process?
A: (1) Nomination by the president;
(2) Concurrence by the ConA; and
(3) Issuance of the appointment by the President.
(b) Ad-interim Appointment – is one made while
Congress is not in session. Before confirmation by the
Commission on Appointments, is immediately effective,
and ceases to be valid if disapproved by or bypassed by
the Commission on Appointments upon the next
adjournment of the Congress.
An ad-interim appointments a permanent appointment,
and is being subject to confirmation does not alter its
permanent character.
STEPS IN THE APPOINTING PROCESS:
(1) Appointment by the appointing authority;
(2) Issuance of the commission; and
(3) Acceptance by the appointee.
Q: What are the positions can the President nominate and
appoint with the consent of the Commission on
Appointments?
A: (1) Heads of the executive departments (Art. VII, Sec.
16, 1987 Const.);
(2) Ambassadors (ibid);
(3) Other public ministers and consuls (ibid);
(4) Officers of the armed forces from the rank or colonel
or naval captain (ibid);
(5) Other officers whose appointments are vested in him
by the Constitution (ibid), including Constitutional
Commissioners (Art. IX-B, Sec. 1 (2) for CSC; Art.
IX-C, Sec. 1 (2) for COMELEC; Art. IX-D, Sec. 1 (2)
for COA).
Q: Who can the President appoint without the need for CA
approval?
A: All other officers of the government whose appointments
are not otherwise provided for by law;
 Those whom he may be authorized by law to appoint;
 Members of the Supreme Court;
Note: To be appointed from a list of at least 3
nominees prepared by the Judicial and Bar Council (Art.
VIII, Sec. 9, 1987 Const.)
 Judges of lower courts;
Note: To be appointed from a list of at least 3
nominees prepared by the Judicial and Bar Council (Art.
VIII, Sec. 9, 1987 Const.)
 Ombudsman and his deputies
Note: To be appointed from a list of at least 6
nominees prepared by the Judicial and Bar Council, and
from a list of 3 nominees for every vacancy thereafter
(Art. XI, Sec. 9, 1987 Const.)
Q: Does the President have the power to make
appointments when
Congress is in recess?
A: Yes. However, such appointments shall be effective only
until:
(1) disapproval by the Commission on Appointments; or
(2) the next adjournment of the Congress (Sec. 16, Art.
VII, 1987 Const.)
Q: What is the effectivity of appointments extended by an
Acting President?
A: Such appointments shall remain effective unless revoked
by the elected President within 90 days from his assumption
or reassumption of office. (Sec. 14, Art. VII, 1987 Const.)
NOTE: Where the appointment is to the career service of
the Civil Service, attestation by the CSC is required. Such
appointment is not deemed complete until attestation/
approved by the CSC.
Without favorable certification or approval of the CSC,
no title to the office can yet be deemed to be permanently
vested in favor of the appointee, and the appointment
revoked or withdrawn by the appointing authority.
Q: When appointment becomes complete?
A: An appointment becomes complete only when the last
act required of the appointing power is performed: until the
process is completed, the appointee can claim no vested
right in office nor claim security of tenure.
In Aquino v CSC and Uy v CA, it was held that when the
appointing authority has already exercised hi power of
appointment, the Commission cannot revoke the same on
the ground that another employee is better qualified, for that
will constitute an encroachment on the discretion vested in
the appointing authority. The Commission may not and
should not substitute its judgment for that of the appointing
authority.
TERMINATION OF OFFICIAL RELATIONS
(1) Expiration of Term or Tenure of Office
(a) End of a fixed term
Upon the expiration of the officer’s term, unless he
is authorized by law to hold over, his rights, duties and
authority as a public officer must be ipso facto
terminated.
(b) End of Pleasure where one holds office at pleasure
of appointing authority
(c) Loss of confidence in primarily confidential
employment
(2) Reaching the age limit; Retirement
(3) Bona fide abolition of office
(4) Abandonment of office
(5) Acceptance of an incompatible office
(6) Resignation
(7) Resignation
(8) Removal for cause
(9) Temporary appointments’ termination
(10) Recall
(11) Impeachment
(12) Prescription of right to office
(13) Death
(14) Conviction of crime where disqualification is an accessory
penalty
(15) Filing of certificate of candidacy
(16) Performance of act or accomplishment of purpose for
which the office was created
Expiration of Term or Tenure of Office
End of Fixed
Term
End of Pleasure Where One Holds office at Pleasure of
Appointing Authority
Alba v. Evangelista
President can validly terminate tenure of Vice Mayor of
Roxas City as the office was created at the pleasure of the
President. What is involved here is not the question of
removal, or whether legal cause should precede or not that of
removal. What is involved here is the creation of an office and
the tenure of such office, which has been made expressly
dependent upon the pleasure of the President.
Fernandez v Ledesma
The Charter of Basilan City provides that the President
shall appoint and may remove at his discretion any of the
city’s officers, including its Chief of Police, with the exception
of the municipal judge, who may be removed only according
to law. The legislative intent is to make continuance in office
dependent upon the pleasure of the President. Congress has
the power to vest such power of appointment. Further, “A
public office is the right for a given period, either fixed by law
or enduring at the pleasure of the creating power.” Alba v.
Evangelista states that the replacement is not removal, but an
expiration of tenure, which is an ordinary mode of terminating
official relations. What is involved is not removal, or whether
legal cause should precede such removal, but the creation of
an office and the tenure of such office, which has been made
expressly dependent upon the pleasure of the President.
Loss of Confidence in Primarily Confidential
Employment
Hernandez v. Villegas
Even officers and employees of the civil service
occupying primarily confidential positions are subject to the
constitutional safeguard against removal or suspension
except for cause.
Official and employees holding primarily confidential
positions continue only for so long as confidence in them
endures. The termination of their official relation can be
justified on the ground of loss of confidence because in that
case, their cessation from office involves no removal but
merely the expiration of the term of office.
Ingles v. Mutuc
The statement that an officer holding a position which is
primarily confidential in nature is “subject to removal at the
pleasure of the appointing power” is inaccurate. Such
statement (a mere obiter in the case of De los Santos v.
Mallare), if detached from the context of the decision in said
case, would be inconsistent with the constitutional command
to the effect that “no officer or employee in the Civil Service
shall be removed or suspended except for cause as provided
by law,” and it is conceded that one holding in the government
a primarily confidential positions is “in the Civil Service.”
This should not be misunderstood as denying that the
incumbent of a primarily confidential position holds office at
the pleasure only of the appointing power. It should be noted
however, that when such pleasure turns into displeasure, the
incumbent is not “removed” or “dismissed” from office - his
“term” merely “expires” in much the same way as an officer,
whose right thereto ceases upon expiration of the fixed term
for which he had been appointed or elected is not and cannot
be deemed “removed” or “dismissed” therefrom, upon the
expiration of said term. The main difference between the
former - the primarily confidential officer - and the latter is
that the latter’s term is fixed or definite, whereas that of the
former is not pre-fixed but indefinite, at the time of his
appointment or election, and becomes fixed and determined
when the appointing power expresses its decision to put an
end to the services of the incumbent. When this event takes
place, the latter is not “removed” or “dismissed” from officer -
his term has merely expired.
Gray v. De Vera
President appointed Gray as Board secretary of the
People’s Homesite and Housing Corporation but was later
terminated through a board resolution due to loss of
confidence. SC reversed ruling that Gray’s appointment was
a permanent one. Although the President, EO 99, declared
the position of secretary to the board of a government
corporation “primarily confidential in nature,” it does not
follow that a board secretary whose appointment was
permanent may be removed from office without a formal
charge specifying the ground for removal and without giving
him an opportunity to be head. Such removal was illegal
since there was no lawful cause for removal.
By declaring that the position is primarily confidential in
nature, the President intended that the position be filled by
an appointee of unquestioned honesty and integrity. The act
of Gray in reporting the board’s act of mismanagement and
misconduct was in consonance with the honesty and
integrity required for the position.
Cariño v. ACCFA
SC reversed termination of lawyers who were appointed
as permanent employees of ACCFA. That petitioners’
positions are primarily confidential is immaterial. The
Constitution merely excepts primarily confidential positions
from the coverage of “the rule requiring appointments in the
civil service to be made on the basis of merit and fitness as
determined from the competitive exams,” but does not
exempt such positions from the operation of the principle
that no officer or employee in the civil service shall be
removed or suspended except for cause as provided by law,
which recognizes no exception.
Reaching the Age Limit;
Retirement
Conditions for Entitlement to Retirement
Benefits
(R.A. No. 8291)
a) he has rendered at least fifteen (15) years of service;
b) he is at least sixty (60) years of age at the time of
retirement; and
c) he is not receiving a monthly pension benefit from
permanent total disability.
Compulsory Retirement
Unless the service is extended by appropriate
authorities, retirement shall be compulsory for an employee
at least sixty-five (65) years of age with at least fifteen (15)
years of service; Provided that if he has less than fifteen (15)
years of service, he may be allowed to continue in the
service in accordance with existing civil service rules and
regulations.
Retirement
Benefits
the lump sum payment defined in RA No.
8291 payable at the time of retirement
plus an old-age pension benefit equal
to the basis monthly pension payable
monthly for life, starting upon
expiration of the give-year (5)
guaranteed period covered by the
lump sum; or
(2) cash payment equivalent to eighteen (18) months of his
basic monthly pension plus monthly pension for life
payable immediately with no five-year (5) guarantee.
Beronilla v GSIS
The compulsory retirement of government officials and
employees upon reaching the age of 65 years is founded on
public policy which aims by it to maintain efficiency in the
government service and, at the same time, give to the retiring
public servants the opportunity to enjoy during the remainder
of their lives the recompenses for their long service and
devotion to the government, in the form of a comparatively
easier life, freed from the rigors, discipline and the exacting
demands that the nature of their work and their relations with
their superiors as well as the public would impose on them.
UP Board of Regents v. Auditor General
A BOR resolution extended the services of a UP
professor for another year. In the same year, he reached the
age of 65. The Auditor General questioned the legality of the
resolution arguing that the services rendered after the
compulsory retirement age were illegal and that he was not
entitled to compensation. SC upheld Auditor General ruling
that as government employees, UP professors are
compulsorily covered by the Retirement Law which creates a
uniform retirement system for all members of the GSIS.
Rabor v. CSC
At the age of 55, Rabor was hired as a government
employee at the Davao City Mayor’s Office in 1978. In 1991,
he was advised to apply for retirement. He was already 68
years old with 13 years of service. He requested that his
services be extended in order that he may complete the 15-
year service requirement. This was denied and Rabor claimed
that the doctrine enunciated in Cena v. CSC should be
applied in his case.
SC ruled that the Cena doctrine is not applicable. CSC
Memo Circular No. 27, s. of 1990 cited in the decision in Cena
v. CSC, provides that “any request for the extension of service
of compulsory retirees to complete the 15-year service
requirement for retirement shall be allowed only to permanent
appointees in the career service who are regular GSIS
members, and shall be granted for a period not exceeding one
(1) year.” Cena further stated that the authority to grant the
extension was a discretionary one vested in the head of the
agency concerned. To reiterate, the head of the government
agency concerned is vested with discretionary authority to
allow or disallow extension of service of an employee who has
reached 65 years old without completing 15 years of
government service; this discretion to be exercised
conformably with CSC Memo Circular No. 27, s. of 1990.
Bona Fide Abolition of Office
 As a general rule, absent some Constitutional prohibition,
Congress may abolish any office it creates without
infringing upon the rights of the officer or employee
affected.
 To consider an office abolished, there must have been an
intention to do away with it wholly and permanently.
 Termination by virtue of the abolition of the office is to be
distinguished from removal. There can be no tenure to a
non-existent office. After the abolition, there is in law no
occupant. In case of removal, there is an office with an
occupant who would thereby lose his position. It is in that
sense that from the standpoint of strict law, the question
of any impairment of security of tenure when there is an
abolition of office does not arise. The right itself
disappeared with the abolished office as an accessory
following the principal.
Busacay v. Buenaventura
Busacay was laid off as toll collector when the bridge was
destroyed. However, the bridge was later reconstructed and
opened to the public with a new collector being appointed.
Busacay was ordered reinstated by the SC. To consider an
office abolished, there must have been an intention to do
away with it wholly and permanently. In the case at bar,
there was never any thought of not rebuilding the bridge.
The collapse of the bridge did not work to destroy but only to
suspend the position of toll collector thereon, and upon its
reconstruction and re-opening, the collector’s right to the
position was similarly and automatically restored.
Manalang v. Quitoriano
The National Employment Service was established by
R.A. No. 761 in lieu of the Placement Bureau. Quitoriano
was appointed as NES Commissioner in spite of the
recommendation of the Labor secretary to appoint Manalang
who was the incumbent Director of the Placement Bureau.
SC held that appoint of Quitoriano was valid. A removal
implies that the office still exists. R.A. No. 761, creating NES,
expressly abolished the Placement Bureau and, by
implication, the office of the Director of the Placement
Bureau. Had Congress intended the NES to be a mere
enlargement of the Placement Bureau, it would have
directed the retention, not the transfer, of qualified personnel
to the NES. Manalang has never been NES Commissioner
and thus could not have been removed therefrom.
Abolition Must Be in Good
Faith
As well settled to the rule that the abolition of an office
does not amount to an illegal removal or separation of its
incumbent is the principle that, in order to be valid, the
abolition must be made in good faith, not for personal or
political reasons, and not implemented in violation of law.
Briones v. Osmeña
Briones and Rosagaran were employees in the Office of
the City Mayor since 1937 and 1940, respectively, In 1956,
the City created 35 new positions and abolished 32, of which
the positions of Briones and Rosagaran were included.
Consequently, the two were terminated. SC held that the
termination was not valid. While abolition does not imply
removal of the incumbent, this rule is true only where the
abolition is made in good faith. In other words, the right to
abolish cannot be used to discharge employees in violation
of the Civil Service law nor can it be exercised for personal
or political reasons.
Facundo v. Pabalan
There is no law which expressly authorizes a municipal
council to abolish the positions it has created. However, the
rule is well-settled that the power to create an office includes
the power to abolish it, unless there are constitutional or
statutory rules providing otherwise. But the office must be
abolished in good faith.
Cruz v. Primicias
As well settled as the rule that the abolition of an office
does not amount to an illegal removal of its incumbent is the
principle that, in order to be valid, the abolition must be
made in good faith. Where the abolition is made in bad faith,
for political or personal reasons, or in order to circumvent the
constitutional security of tenure of civil service employees, it
is null and void. In the case at bar, while 22 positions were
abolished, 28 new positions with higher salaries were
simultaneously created. No charge of inefficiency is lodged
against petitioners. In truth and in fact, what respondents
sought to achieve was to supplant civil service eligibles with
men of their choice, whose tenure would be totally
dependent upon their pleasure and discretion.
Reorganizati
on
Reorganization occurs where there is an alteration of
the existing structure of government offices or units therein,
including the lines of control, authority and responsibility
between them to promote greater efficiency, to remove
redundancy of functions, or to effect economy and make it
more responsive to the needs of their public clientele. It may
result in the loss of one’s position through removal or
abolition of office. Reorganization of the government may be
required by law independently of specific constitutional
authorization. But in order to be valid, it must also be done in
good faith.
Board of Directors of PCSO v. Alandy
Alandy was the incumbent Assistant General Manager of
the PCSO. In 1954, Resolution No. 314 was passed to
reorganize the PCSO. The position of Assistant General
Manager was converted to General Field Supervisor to which
Alandy was appointed. However, in 1955, the position of
Assistant General Manager was again created through
Resolution No. 422 and a different person was appointed to
the position. SC invalidated the new appointment and
reinstated Alandy to his position as PCSO Assistant General
Manager. What occurred here is that the position of Assistant
General Manager was not abolished but was merely
converted to another position. As such, the conversion merely
caused the giving of additional functions to Alandy, who still
held the position of Assistant General Manager.
Dario v. Mison
In pursuance of its reorganization policy, Pres. Aquino
issued EO 127 in 1987 which provided for the reorganization
of the Bureau of Customs. Pursuant to EO 127,
Commissioner Mison terminated a total of 310 employees.
Upon appeal, the CSC ordered the reinstatement of 283
employees which was upheld by the SC. The dismissal are
not valid. There is no dispute that pursuant to the Freedom
Constitution and the various executive orders issued by Pres.
Aquino, the different departments of government were
authorized to carry on reorganization programs. But the
nature and extent of the power to reorganize were
circumscribed by the source of the power itself. The
Reorganization process is made up of two stages. The first
stage, which was effected pursuant to Proclamation 3,
allowed removals “not for cause,” and it ended on 02 February
1987. On the other hand, the second stage is a continuing
one from 02 February 1987 pursuant to the 1987 Constitution.
The 1987 Constitution requires that removal “not for cause”
must be a result of reorganization. Such removals must also
pass the test of good faith, a test obviously not required under
the first stage which was envisioned as a purgation.
A reorganization is carried out in good faith if it is for the
purpose of economy or to make the bureaucracy more
efficient. Good faith, as a component of reorganization under
a constitutional regime, is judged from the facts of each case.
In the case at bar, there was lack of good faith. Mison’s
argument that the reorganization is progressive would be valid
only if it was pursuant to Proclamation 3. However, in spite of
her immense revolutionary power, Pres. Aquino still
promulgated EO 17 which established safeguards against the
propensity that accompany reorganizations and established
the rule that dismissals should be based on findings of
inefficiency, graft and unfitness to render public service.
Assuming then that the reorganization in the first stage was
progressive and still valid, such dismissals as ordered by
Mison would still have to comply with the terms set down in
EO 17.
Rubenecia v. CSC
SC upheld power of the CSC to transfer jurisdiction over
administrative appeals from the Merit Systems Protection
Board to the CSC en banc itself. The 1987 Administrative
Code made clear that the MPSB was intended to be an office
of the CSC like any other of the other 13 offices in the CSC. In
other words, the MPSB was a part of the internal structure
and organization of the CSC. It was not an autonomous entity
created by law and merely attached for administrative
purposes to the CSC. Thus, it was a proper subject of
organizational change which the CSC is authorized to
undertake under the present Civil Service law. The resolution
merely re-allocated to the CSC itself the functions of the
MPSB relating to the determination of administrative
disciplinary cases to “streamline the operation of the CSC.” It
did not purport to abolish the MPSB nor to effect the
termination of the relationship of public employment between
CSC and any of its officers or employees.
Abandonment of Office
 A public office may become vacant ipso facto by
abandonment and non-user. When an office is once
abandoned, the former incumbent cannot legally
repossess it even by forcible re-occupancy.
 Abandonment must be total and absolute, and must be
under such circumstances as clearly to indicate an
absolute relinquishment thereof. Moreover, the officer
should manifest a clear intention to abandon the office
and its duties. Abandonment by reason of acceptance of
another office, in order to be effective and binding, must
spring from and be accompanied by deliberation and
freedom of choice, either to keep the old office or
renounce it for another. Temporary absence is not
sufficient.
Summers v. Ozaeta
Summers, a cadastral judge, assumed office as CFI
judge due to an ad interim appointment. However, the ad
interim appointment was disapproved and Summers now
seeks to be reappointed as cadastral judge. SC held that
Summers’ voluntary acceptance of the position of CFI judge
amounted to a waiver of his right to hold the position of
cadastral judge during the term fixed and guaranteed by the
Constitution. He accepted and qualified for the position of
judge-at-large by taking the oath of office of judge-at-large,
and not merely of an “acting” judge-at-large. The situation is
one wherein he cannot legally hold two offices of similar
category at the same time.
Zandueta v. Dela Costa
When a public official accepts an appointment to an
office newly created or reorganized by law which new office
is incompatible with his former office, qualifies for the
position, takes the necessary oath, and executes acts
inherent in the newly created office, he will be considered to
have abandoned the office he was occupying by virtue of his
former appointment and he cannot question the
constitutionality of the law by virtue of which he was
appointed.
Floresca v. Quetulio
Floresca’s refusal to assume his pre-war post as Justice
of the Peace and his subsequent acceptance of other
employments without any pretense on his part that he
simultaneously continued to perform the functions of the
Justice of the Peace, clearly show deliberate abandonment
of the latter office.
Ortiz v. De Guzman
Ortiz allowed three years to elapse since he was ousted
from office without having taken any steps to reclaim his
former office. SC held that he cannot ask for reinstatement.
A public employee who voluntarily abandons his office for a
long time is estopped from asking for reinstatement. In order
to constitute an abandonment of office, it must be total, and
under such circumstances as to clearly indicate an absolute
relinquishment. Temporary absence is not sufficient where
no statute fixes the period beyond which the absence must
continue. In all cases, the officer should manifest a clear
intention to abandon the office and its duties. Yet, this
intention may be inferred from his conduct. If his acts and
statements are such as to clearly indicate absolute
relinquishment, a vacancy will be thereby created and no
judicial determination is necessary. When once abandoned,
the former incumbent cannot legally repossess the office.
Madrid v. Auditor General
One claiming the right to a position in the civil service
must institute the proper proceeding within one year from the
date of separation, otherwise he is deemed to have
abandoned his office or even acquiesced or consented to his
removal, and thus is not entitled to seek reinstatement. The
rationale is to inform the Government of the rightful holder of
the office and to prevent payment of salary to both
claimants.
Magana v. Auditor General
Having accepted the benefits accruing from the abolition
of his office, he is estopped from questioning its validity or
deemed to have waived the right to contest the same.

Villegas v. Subido
Villegas did not abandon his office as mayor of the City of
Manila when he assumed the position of Director of NAWASA
because he had been merely designated in an acting capacity
and was not appointed to the said position.
some authorities, no acceptance is necessary to render
a resignation effective, especially when the resignation
is unconditional and purports to take effect immediately.
Indeed, it may be provided by statute that the
resignation of a public officer is to take effect at the time
of filing it.

Tan v. Gimenez  However, many other cases take the view that to be
The fact that, during the time his appeal was pending and effective, the resignation must be accepted by
was thus deprived of his office and salary, an employee competent authority. Without acceptance, the
sought employment in another branch of the government does resignation is nothing and the officer remains in office.
not constitute abandonment of his former position. (63 Am Jur 2d., sec. 163)

Acceptance of an Incompatible Office  NOTE: Two (2) elements are necessary to constitute an
effective acceptance:
intention to relinquish office coupled with actual
 He who, while occupying one office, accepts another
relinquishment; and
office incompatible with the first, ipso facto absolutely
acceptance of resignation.
vacates the first office. That the second office is inferior to
the first does not affect the rule. And even though the title
Gonzales v. Hernandez
to the second office fails as where election is void, the
Gonzales filed a letter of resignation the pertinent
rule is still the same, nor can the officer then regain the
portion of which reads: “ x x x subject to the result of my
possession of his former office to which another has been
appeal with the Civil Service Board of Appeals, and to the
appointed or elected.
provisions of the Resolution of the Cabinet on July 17,
1939.” SC held that Gonzales, although his conditional
 If the law or Constitution as an expression of public policy
resignation was unconditionally accepted, cannot be
forbids the acceptance by a public officer of any other
considered as having resigned from office. There was no
office other than that which he holds, it is not a case of
resignation to speak of. To constitute a complete and
incompatibility but of legal prohibition.
operative act of resignation, the officer or employee must
show a clear intention to relinquish or surrender his position.
Incompatibility of offices exists where:
In the case at bar, there was no such intention as Gonzales’
(a) There is conflict in such duties and functions so
resignation was subject to the result of his appeal.
that the performance of the duties of one
interferes with the performance of the duties of
Ortiz v. COMELEC
another, as to render it improper for
Petitioner’s separation from the government as a result
considerations of public policy for one person to
of the reorganization ordained by former Pres. Aquino may
retain both.
not be considered a resignation within the law’s
(b) One is subordinate to the other and is subject in
contemplation. Resignation is defined as the act of giving up
some degree to its supervisory powers for in
or the act of an officer by which he declines his office and
such situation where both are held by the same
renounces the further right to use it. To constitute a complete
person, the design that one acts as a check on
and operative act of resignation, the officer or employee
the other would be frustrated.
must show a clear intention to relinquish his position
(c) The Constitution or the law itself, for reasons of
accompanied by the act of relinquishment and its
public policy, declares the incompatibility even
acceptance by competent and lawful authority. Based on the
though there is no inconsistency in the nature
facts, petitioner’s resignation lacks the element of clear
and functions of the offices.
intention to surrender his position. We cannot presume such
intention from the letter he sent placing himself at the
Exceptions to the Rule on Holding of Incompatible Offices
disposal of the President. He did not categorically state that
he was unconditionally giving up his position. It should be
(a) Where the officer cannot vacate the first office by his own
good to note that said letter was actually a response to
act, upon the principle that he will not be permitted to thus
Proclamation No. 1 of Pres. Aquino calling all appointive
do indirectly what he could not do directly, as where the
public officials to offer their “courtesy resignation.”
law requires the approval of the provincial board before a
municipal official can resign.
 A “courtesy resignation” cannot properly be interpreted
(b) First office is held under a different government from that
as resignation in a legal sense. It just manifests the
which conferred the second.
submission of a person to the will of the political
(c) Officer is expressly authorized by law to accept another
authority.
office.
(d) Second office is temporary.
NOTE: Courtesy resignation is not allowed in (1) career
positions and (2) non-career positions with security of
Resignation tenure (i.e. local elective officials).

 A resignation of a public officer need not be in any

particular form, unless some form is prescribed by Removal For Cause
statute. Ordinarily, it may either be in writing or by parol.
The conduct of an employee may properly be regarded
No officer or employee of the civil service shall be
as constituting a resignation from the position held by
removed or suspended except for cause provided by law
him. However, to constitute a complete and operative
(Sec. 2(3), Art. IX, 1987 Constitution).
resignation of public office, there must be an intention to
relinquish a part of the term, accompanied by the act of
relinquishment. Grounds For Removal From
Office
 The right of a public officer to resign is well recognized,
even where it is provided than an officer may hold over  For Presidential appointees, Prof. Barlongay states that
until election and qualification of a successor. The right is there is no specific law providing for the grounds for
sometimes recognized or secured by constitution or their removal. Determination of grounds is just a matter
statute. of practice and by analogy, the grounds used for non-
presidential appointees are made applicable.
 The views in the various jurisdictions are conflicting in
regard to what constitutes acceptance of a resignation
and whether an acceptance is required. According to
 For civil service officials and employees, see Sec. 46,
Book V, E.O. No. 292 which provides for at least 30
grounds for disciplinary action.
 For local elective officials, Sec. 60 of the Local
Government Code provides for the grounds where an
elective local official may be disciplined, suspended or
removed from office.
Misconduct need not be “in office” in case of appointive
officers.
Misconduct must be “in office” in case of elective
officers.
Nera v. Garcia
Under the Revised Administrative Code, the rule in
preventive suspension provides that a Bureau Chief may
suspend, with the approval of the head of the department, any
subordinate officer or employee if he is charged with
dishonesty, oppression or grave misconduct or neglect in the
performance of duty. The same words are expressed in the
civil service law. From these provisions, suspension was
proper even if the dishonest act was not in the performance of
his duty since under the Revised Administrative Code and the
Civil Service Law, dishonesty was not qualified by the phrase
“in the performance of duty.”
Ochate v. Ty Deling
The SC held that the facts alleged in the administrative
charge, as substantiated by the affidavits of the complainants,
do not justify the administrative proceedings instituted against
the petitioner and his suspension by the governor. The
alleged libel imputed to the mayor was not such misconduct
even if the term “misconduct in office” be taken in its broadest
sense. The radio broadcast in which the objectionable
utterances were made had nothing to do with his official
functions and duties as a mayor.
Misconduct committed during a prior term, not a ground
for dismissal
Pascual v. Provincial Board
The SC held that the weight of authority follows the rule
which denies the right to remove one from office because of
misconduct during a prior term. Offenses committed or acts
done during a previous term are generally held not to furnish
cause for removal and this is especially true where the
Constitution provides that the penalty in proceedings for
removal shall not extend beyond the removal from office and
disqualification from holding office for the term for which the
officer was elected and appointed. The underlying theory is
that each term is separate from other terms and that re-
election to office operates as a condonation of the officer’s
previous misconduct to the extent of cutting off the right to
remove him therefore.
Aguinaldo v. Santos
SC held that Aquinaldo should not be removed from
office. His re-election to the position of Governor of Cagayan
has rendered the administrative case pending before it moot
and academic.
Offenses committed or acts done, during a previous term
are generally not held to furnish cause for removal. The Court
should never remove a public officer for acts done prior to his
present term of office. To do otherwise would be to deprive
the people of their right to elect their officers. When the people
have elected a man to office, it must be assumed that they did
this with knowledge of his life and character, and that they
disregarded or forgave his fault or misconduct, if guilty of any.
It is not for the court, by reason of such fault or misconduct, to
practically overruled the will of the people.
The rule then is that a public officer cannot be removed
for administrative misconduct committed during a prior term,
since his reelection to office operates as a condonation of the
officer’s previous misconduct to the extent of cutting off the
right to remove him therefore. This rule, however, is not
applicable to criminal cases pending against the petitioner for
acts he may have committed during the failed coup.
Transfer from One Position to Another May or May Not
Constitute
Violation of Security of Tenure
 A transfer is a movement from one position to another
which is of equivalent rank, level, or salary without break
in service involving the issuance of an appointment.
 It shall not be considered disciplinary when made in the
interest of public service, in which case, the employee
concerned shall be informed of the reasons therefore. If
the employee believes that there is no justification for
the transfer, he may appeal to the SC.
 The transfer may be from one department or agency to
another or from one organizational unit to another in the
same department or agency; Provided, however that
any movement from the non-career service to the career
service shall not be considered a transfer.
Lacson v. Romero
Lacson was appointed provincial fiscal of Negros
Oriental by the President. However, three years after,
another person was appointed to the same position while
Lacson was nominated to the position of provincial fiscal of
Tarlac. Lacson never accepted the appointment and did not
assume the duties of said office. The SC held that Lacson
has the right to occupy the office of provincial fiscal of
Negros Oriental as he neither accepted nor assumed the
office of provincial fiscal of Tarlac and no one can compel his
to do so.
The intended transfer of Lacson to Tarlac, if carried out
without the approval of Lacson, would be equivalent to a
removal from his office in Negros Oriental. The reason is that
a fiscal is appointed for each province and Lacson could not
legally hold and occupy the two posts of fiscal of Tarlac and
Negros Oriental simultaneously. Therefore, to be a fiscal of
Tarlac must mean his removal from office in Negros.
Since the transfer in the case at bar is considered a
removal, such should be for cause in order for the other
person to legally occupy the office in Negros. There was no
cause for Lacson’s removal. He therefore remains as fiscal
of Negro.
Termination of Temporary
Appointment
Quitiquit v. Villacorta
The appointment being temporary in character, the
same can be terminated at pleasure by the appointing
power.
Ferrer v. de Leon
One holding an office in a temporary capacity may be
ousted at anytime with or without cause.
What Determines Character of
Appointment
Hojilla v. Marino
The controlling factor in determining the character of the
appointment is the appointment itself. Even if a position is
permanent, if the appointment is made temporary, the
appointment is determinative. What is determinative is not
the nature of the office (permanent or temporary), but the
nature of the appointment.
 One appointed to a position of another who was illegally
suspended or dismissed, holds it in temporary capacity
and must yield to the latter. The reason for this is that
there was no valid termination.
Recall
 The Congress shall enact a local government code
which shall provide for a more responsive and
accountable local government structure instituted
through a system of decentralization with effective
 mechanisms of recall, initiative and referendum …(Sec.  Performance of act or accomplishment of purpose
3, Art. X, 1987 Constitution) renders office functus officio.

 Procedure for recall is provided in Sections 69-75 of the

Local Government Code.

Garcia v. COMELEC
SC upheld initiation of recall through the Preparatory
Recall Assembly. Recall is a mode of removal of a public
officer by the people before the end of his term of office. The
people’s prerogative to remove a public officer is an incident
to their sovereign power, and in the absence of constitutional
restraint, the power is implied in all government operations.
There are two reasons why a Preparatory Recall Assembly is
allowed: (1) to diminish the difficulty of initiating recall through
direct action of the people; (2) to cut down on expenses.
Moreover, the Constitution does not provide for any
particularly mode of initiating recall elections. Initiation by the
Preparatory Recall Assembly may be considered as initiation
of recall by the people, although done indirectly through
representatives. In any event, the composition of the
Preparatory Recall Assembly is politically neutral, so loss of
confidence cannot be said to be inspired by difference in
political party affiliation.

Prescription of Right to Office

Unabia v. City Mayor

No reinstatement is possible in the case at bar. Even if
the removal was void for lack of cause, Unabia filed his
petition for reinstatement with the CFI after a delay of one
year and fifteen days. Any person claiming a right to a position
in the civil service is required to file his petition for
reinstatement within one year, otherwise he is deemed to
have abandoned his office. Reason is public policy and
convenience, stability in the public service.

NOTE: The one-year period is the prescriptive period to

claim public office (whether through quo warranto or
otherwise). The one-year period presupposes judicial action,
not administrative action.
Filing of Certificate of Cnadidacy

 Sec. 66 of the Omnibus Election Code states that any

person holding appointive public offices or positions,
including active AFP members, is considered ipso facto
resigned from office by the mere filing of certificate of
candidacy.

 Only the moment and act of filing are considered. Once

the certificate is filed, the seat is forever forfeited and
nothing, save a new election or appointment, can restore
the ousted official.

Note: The following provisions have been repealed

by Sec. 14 of R.A. 9006 (Fair Election Act of
2001):

 Sec. 67 of B.P. 881 which states that any

elective official, whether national or local,
running for any office OTHER than one which he
is holding in a permanent capacity, except for
President and Vice President, shall be
considered ipso facto resigned from office by the
mere filing of a certificate of candidacy.

 The first proviso of Sec. 11 of R.A. 8436

which states that "Any elective official, running
for any officer other than one which he is holding
in a permanent capacity, except for President
and Vice-President, shall be considered ipso
facto resigned upon the start of the campaign
period."

Performance of an Act or Accomplishment of Purpose for

which the Office was Created