EVA MARIE G.

GUTIERREZ Class Notes for 16 June 2011

Law 156 – Part I. The Law on Public Officers and Civil Service Page 1 of 10

I. INTRODUCTION – Concepts and Principles duties as an employee, agent or subordinate official, of any rank or
class, shall be deemed to be a public officer (RPC).
A. Public Office and Public Officers
A public official is an officer of the Government itself, as
1) Definitions distinguished from the officers and employees of
instrumentalities of the government (Gonzales v Hechanova).
A public office is the right, authority, and duty created and This is ordinarily used synonymously with public officer.
conferred by law, by which for a giver period of time, 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 2) Purpose and Nature
him for the benefit of the public (MECHEM; Aparri v. CA).
Public Office, as a Public Trust
A public officer is such an officer as is required by law to be
o Holders regarded as public servants
elected or appointed, who has a designation or title given to
o Holders subject to highest standards of
him by law, and who exercises functions concerning the
public, assigned to him by law (DE LEON, citing AmJur). accountability and service -

ARTICLE XI – ACCOUNTABILITY OF PUBLIC OFFICERS, Section 1.

(14) "Officer" as distinguished from "clerk" or "employee", refers to a
Public office is a public trust. Public officers and employees must,
person whose duties, not being of a clerical or manual nature,
at all times, be accountable to the people, serve them with utmost
involves the exercise of discretion in the performance of the
responsibility, integrity, loyalty, and efficiency; act with patriotism
functions of the government. When used with reference to a person
and justice, and lead modest lives (1987 CONSTITUTION).
having authority to do a particular act or perform a particular
function in the exercise of governmental power, "officer" includes
any government employee, agent or body having authority to do the
act or exercise that function.
Public Office, not Property

(15) "Employee", when used with reference to a person in the public
service, includes any person in the service of the government or
any of its agencies, divisions, subdivisions or instrumentalities.
(ADM. CODE OF 1987, Introductory Provisions).
Art. 203. Who are public officers. — For the purpose of applying the
provisions of this and the preceding titles of this book, any person
who, by direct provision of the law, popular election or appointment
by competent authority, shall take part in the performance of Public Office, not a Contract
public functions in the Government of the Philippine Islands, of
shall perform in said Government or in any of its branches public
o Holder subject to removal or suspension according to
law.
o Holder without vested right in any public office.
o Holder’s right in nature of privilege entitled to
protection.
o Holder’s right personal to him.
o Creates no contractual relation between holder and
the public.
EVA MARIE G. GUTIERREZ
Law 156 – Part I. The Law on Public Officers and Civil Service
o Exists by virtue of some law.
o Generally entitles holder to a compensation.
Security of Tenure in Public Office as property for
purposes of due process
CASE: National Land Titles and Deeds Registration
Administration v. Civil Service Commission (1993);
Campos Jr.
Facts: Violeta Garcia is an LLB graduate and civil service
eligible. She was appointed Deputy Register of Deeds under
permanent status. However, she was later assigned as
Register of Deeds II pursuant to EO 649 which restructured
the Land Registration Commission to NLTDRA on temporary
appointment for not being member of the bar – a new
requirement under EO 649. Upon expiration of her
temporary appointment she was terminated from service.
Ruling of LC: CSC directed Garcia to be restored to her
position as Deputy Register of Deeds II or its equivalent in
the NALTDRA. It held that under the “vested right theory”
the new requirement should not apply to Garcia but only to
new applicants after EO 649 took effect.
Arguments: NALTDRA contends that EO 649 abolished all
existing positions in the LRC and transferred their functions
to the appropriate new offices created by said EO, which
newly created offices required the issuance of new
appointments to qualified office holders. EO 649 applies to
Garcia, and not being a member of the Bar, she cannot be
reinstated to her former position as Deputy Register of
Deeds II.
Issues: WON the new requirement (membership in the Bar)
under the law (EO 649) applies only to new applicants and
Class Notes for 16 June 2011
Page 2 of 10
not to those who were already in the service of the LRC as
deputy register of deeds at the time of the issuance and
implementation of the EO.
Ruling: NO.
The question of whether or not a law abolishes an office is
one of legislative intent about which there can be no
controversy whatsoever if there is an explicit declaration in
the law itself. Sec. 8 of EO 649 mandates that from the
moment the implementing order is issued, all LRC positions
are deemed inexistent.
The abolition of an office within the competence of a
legitimate body if done in good faith suffers from no
infirmity. Two questions therefore arise: (1) was the abolition
carried out by a legitimate body?; and (2) was it done in good
faith?
In the case at bar, the authority of the President to carry out
a valid reorganization in any branch or agency of the
Government is constitutionality granted. As for good faith,
EO 649 was enacted to improve the services and better
systematize the operation of the LRC. A reorganization is
carried out in good faith if it is for the purpose of economy or
to make bureaucracy more efficient.
On the "vested right theory"; there is no such thing as a
vested interest or an estate in an office, or even an absolute
right to hold it. Except constitutional offices which provide
for special immunity as regards salary and tenure, no one
can be said to have any vested right in an office or its salary.
None of the exceptions to this rule are obtaining in this case.
The position which private respondent Garcia would like to
occupy anew was abolished pursuant to EO 649, a valid
EVA MARIE G. GUTIERREZ
Law 156 – Part I. The Law on Public Officers and Civil Service
reorganization measure. There is no vested property right to
be re employed in a reorganized office. Not being a member
of the Bar, the minimum requirement to qualify under the
reorganization law for permanent appointment as Deputy
Register of Deeds II, she cannot be reinstated to her former
position without violating the express mandate of the law.
Legal Basis – Laws and cases cited: 1973 Consti; Dario v
Mison
Distinctions
3) Elements (DE LEON, citing State v Taylor)
1. It is created by the Constitution or by a law or by
some body or agency to which power to create the
office has been delegated;
2. It must be invested with an authority to exercise
some portion of the sovereign power of the State to be
exercised for the public interest;
3. Its powers and functions are defined by the
Constitution, or by law, or through legislative
authority;
4. The duties pertaining thereto are performed
independently, without the control of a superior
power other than law, unless they are those of an
inferior or subordinate officer, created or authorized
by the legislative and placed by it under the general
control of a superior officer or body; and
5. It is continuing and permanent in nature and not
occasional or intermittent.
o Existence of definite tenure, continuance of office
holder, permanence of office – NOT material
Class Notes for 16 June 2011
Page 3 of 10
4) Creation of Public Office
o Generally. An office is created by some constitutional
or statutory provision or by the authority conferred
by it.
o By Congress. Except for such offices as are created
by the Constitution, the creation of public offices is
primarily a legislative function.
o By the President. Power to inactivate or reorganize
bureaus, agencies and offices under the executive
department e.g. President’s continuing power to
reorganize the structure of the OP under the Admin
Code of 1987.
o The power to create an office generally includes the
power to modify and abolish it, and the power to
create and abolish offices carries with it the power to
fix the number of positions and the salaries of
emoluments of the holders thereof and to provide the
funds for the office created. The power is inherently
legislative.
5) Kinds/Classification of public officers/public officers
o As to nature of functions – civil, military
o As to creation – constitutional, statutory
o As to the department of government to which it
belongs – legislative, executive, judicial
o As to branch of government served – national, local
o As to whether exercise of discretion is required –
quasi-judicial, ministerial
o As to compensation – lucrative office/office of
profit/office coupled with interest, honorary office
EVA MARIE G. GUTIERREZ Class Notes for 16 June 2011
Law 156 – Part I. The Law on Public Officers and Civil Service Page 4 of 10

o According to legality of title to the office – de jure, de Department. A public office may be created through any of
facto the following modes: (1) by the Constitution (fundamental
(DE LEON) law), (2) by law (statute duly enacted by Congress), or (3) by
authority of law. Congress can delegate power to create
CASES positions and it has vested the President power to reorganize
executive agencies and redistribute functions.
Secretary of DOTC v Mabalot (1998); Buena
In the instant case, the creation and the establishment of
Facts: DOTC Secretary Garcia issued Memo Order No. 96-
LTFRB-CAR Regional Office was made pursuant to the third
735 directing LTFRB to transfer the functions of LTFRB-CAR
mode – by authority of law, which could be decreed by EO
to DOTC-CAR pending the creation of a Regular Franchising
issued by the President or an order of an administrative
Regulatory Office. Mabalot filed a petition for certiorari and
agency pursuant to Sec. 17, Book V of the Adm. Code of
prohibition with prayer for TRO against DOTC. Lower court
1987. The assailed orders were made pursuant to AO 26
issued a TRO enjoining the implementation of the Memo.
directing various departments to establish regional offices in
Thereafter, Secretary Lagdameo issued Dept. Order No. 97-
the CAR. Thus the act is valid because it is as if the
1025 establishing DOTC-CAR as regional office of LTFRB in
establishment of LTFRB-CAR was done by the President.
CAR subject to the direct supervision and control of LTFRB
Central Office, for purposes of economy and effective Moreover, the President has continuing authority to
coordination. reorganize the National Government for a valid purpose
which includes the DOTC to which it has direct control and
Ruling of LC: RTC declared both administrative issuances
supervision; in turn, the DOTC Secretary exercises
null and void.
administrative supervision and control over the LTFRB.
Arguments: Mabalot argues that a transfer of the powers
Legal Basis – Laws and cases cited: Adm. Code of 1987 Sec.
and functions of the LTFRB Regional Office to a DOTC
17 Book V and Sec. 20 Book II; Sec. 17, Art. VII, Consti;
Regional Office or the establishment of the latter as an
Larin v Executive Secrectary
LTFRB Regional Office is unconstitutional for being an
undue exercise of legislative power.

Issues: WON Memo Order No. 96-735 and Dept. Order No. Preclaro v Sandiganbayan (1995); Kapunan
97-1025 are valid administrative issuances.
Facts: DOST employed Engr. Claro Preclaro  under a
Ruling: YES. written contract of services as Project Manager so supervise
the construction of one of its buildings. Preclaro was
The President through his duly constituted political agent
accused and convicted of graft and corruption by the
and alter ego, the DOTC Secretary in the present case - may
legally and validly decree the reorganization of the
EVA MARIE G. GUTIERREZ
Law 156 – Part I. The Law on Public Officers and Civil Service
Sandiganbayan for soliciting a chunk of the contractor’s
profit.
Arguments: Preclaro appeals by insisting Sandiganbayan
has no jurisdiction over him since he is not a public officer
as defined under RA 3019 because he was neither elected
nor appointed to a public office. Rather, he is just a private
individual hired on a contractual basis for a particular
project and for a specified period.
Issue: WON Preclaro is a public officer putting him under
the coverage of RA 3019 and the jurisdiction of
Sandiganbayan
Ruling: YES.
The definition in Sec. 2 (b) of RA 3019 is not restrictive as
indicated by the word “includes”. The terms "classified,
unclassified or exemption service" were the old categories of
positions in the civil service which have been reclassified
into Career Service and Non-Career Service by PD 807
providing for the organization of the CSC and by the Adm.
Code of 1987. Non-Career service includes contractual
personnel.
Petitioner falls under the non-career service category
(formerly termed the unclassified or exemption service) of the
Civil Service and thus is a public officer as defined by Sec.
2(b) of the Anti-Graft & Corrupt Practices Act (R.A. No.
3019).
The fact that petitioner is not required to record his working
hours or did not take an oath of office became unessential
considerations in view of the provisions of the law.
Class Notes for 16 June 2011
Page 5 of 10
Maniego v People (1951); Bengzon
Facts: Feliciano Maniego y Catu was a laborer charged with
issuing summons and subpoenas for traffic violations. He
had also been permitted to write motions for dismissal of
prescribed traffic cases against offenders without counsel,
and to submit them to the Court for action, without passing
through the regular clerk. He was accused and convicted of
bribery for accepting P10 in exchange for fixing a case of a
traffic violator.
Arguments: Accused appeals claiming that he is not a public
officer within the meaning of RPC and he was merely
exercising public functions (in connection to which he was
charged and convicted) temporarily.
Issue: WON under the circumstances of the case, the
accused is considered a public officer thus completing the
elements of the offense charged (RPC, Art. 210 – Direct
bribery).
Ruling: YES.
Petitioner is a public officer within the meaning of Art. 203
RPC, which includes all persons "who, by direct provision of
law, popular election or appointment by competent
authority, shall take part in the performance of public
functions in the Philippine Government, or shall perform in
said government or any of its branches, public duties as an
employee, agent or subordinate official or any rank or class."
That definition is quite comprehensive, embracing as it does,
every public servant from the highest to the lowest. For the
purposes of the Penal Code, it obliterates the standard
distinction in the law of public officers between "officer" and
"employee".
EVA MARIE G. GUTIERREZ
Law 156 – Part I. The Law on Public Officers and Civil Service
Also, for purposes of punishing bribery, the temporary
performance of functions is sufficient to constitute a person
a public official. The accused, although originally assigned to
the preparation of summons and subpoenas, had been
allowed in some instance to prepare motions for dismissal of
traffic cases.
Laurel v Desierto (2002); Kapunan
Facts: Former VP Salvador Laurel was named chairman of
the National Centennial Commission and by virtue of which
he became the Executive Officer of Expocorp, a corporation
organized to undertake the Freedom Ring Project in
connection to the centennial celebration. In 1999, Senate
investigations ensued on the allegations of graft and
corruption against Salvador (and others) as NCC and
Expocorp head. The Blue Ribbon Committee recommended
further investigation and filing of appropriate cases by the
Ombudsman. Ombudsman took cognizance.
Arguments: Laurel sought the dismissal of the case against
him by contending that NCC is not a public office and he, as
chairman of NCC and Expocorp is not a public officer as
defined under the Anti-Graft and Corrupt Practices Act (RA
3019).
Issues: (1) WON NCC is a public office; (2) WON
chairmanship in the NCC and Expocorp makes petitioner
Laurel a public officer within the meaning of RA 3019.
Ruling: (1) YES; (2) YES.
The Ombudsman has the power to investigate any
malfeasance, misfeasance and non-feasance by a public
officer or employee of the government, or of any subdivision,
Class Notes for 16 June 2011
Page 6 of 10
agency or instrumentality thereof, including government-
owned or controlled corporations. However, since the law did
not provide who “public officers” are, the Court adopted the
definition of public officers in jurisprudencemas provided by
Mechem: A public office is the right, authority and duty,
created and conferred by law, by which, for a given period,
either fixed by law or enduring at the pleasure of the
creating power, an individual is invested with some portion
of the sovereign functions of the government, to be exercised
by him for the benefit of the public. The individual so
invested is a public officer.
The characteristics of a public office, according to Mechem,
include the delegation of sovereign functions, its creation by
law and not by contract, an oath, salary, continuance of the
position, scope of duties, and the designation of the position
as an office.
NCC is a public office because it performs executive
functions by implementing the policies set forth in the
Constitution regarding history and cultural heritage thus
satisfying an important element of public office: the
delegation of sovereign functions. It also follows that he is a
public officer.
That petitioner allegedly did not receive any compensation
during his tenure is of little consequence. A salary is a
usual but not a necessary criterion for determining the
nature of the position. It is not conclusive. The salary is a
mere incident and forms no part of the office. Where a
salary or fees is annexed, the office is provided for it is a
naked or honorary office, and is supposed to be accepted
merely for the public good. Hence, the office of petitioner as
NCC Chair may be characterized as an honorary office, as
opposed to a lucrative office or an office of profit, i.e., one to
EVA MARIE G. GUTIERREZ
Law 156 – Part I. The Law on Public Officers and Civil Service
which salary, compensation or fees are attached. But it is a
public office, nonetheless.
Neither is the fact that the NCC was characterized by E.O.
No. 128 as an “ad-hoc body” make said commission less of a
public office.
Other notes: Torio v Fontanilla not applicable; Court adopted
ruling in In Re Corliss.
Fernandez v Sto. Tomas (1995); Feliciano
Facts: Repondents Patricia Santo Tomas and Ramon
Ereneta, Jr., Chairman and Commissioner, respectively of
Civil Service Commission issued Resolution No. 94-3710
which made several changes in the organization of CSC
Central Office. Among them is the merger of the OCSS
[Office of Career Systems and Standards], the OPIA [Office of
Personnel Inspection and Audit] and the OPR [Office of
Personnel Relations], to form the RDO [Research and
Development Office].
Petitioner Fernandez who was then serving as Director of
OPIA, was assigned as Regional Director of Regional V while
Petitioner de Lima who was then serving as Director of OPR
was assigned to Region III. Petitioners instituted present
Petition (Certiorari, Prohibition and Mandamus with TRO).
Issues raised: (1) WON respondents validly issued the
assailed Resolution; (2) WON it violated petitioners’
constitutional right to security of tenure.
Ruling:
Class Notes for 16 June 2011
Page 7 of 10
(1) YES. The Adm. Code of 1987 provides for the
organization of the CSC while the Resolution re-arranged the
administrative units with the goal of streamlining operations
and improving delivery of service. These changes in internal
organization were rendered necessary by, on the one hand,
the decentralization and devolution of the Commission's
functions effected by the creation of 14 Regional Offices and
95 Field Offices of the Commission throughout the country,
to the end that the Commission and its staff may be brought
closer physically to the government employees that they are
mandated to serve. It appears that the two petitioners were
the most qualified to act as Regional Directors to where they
were assigned. Hence it appears that CSC was moved by
legitimate considerations.
Moreover, the Adm. Code allows CSC to make internal
changes in its organization, which is precisely what
happened in this case. The Congress, by enumerating the
offices in the Adm. Code did not mean to freeze the
organization but in fact delegated to CSC the power to
reorganize itself.
(2) NO. Firstly, appointments to the staff of the Commission
are not appointments to a specified public office but rather
appointments to particular positions or ranks. Petitioners
are appointed to specific positions but not to specific
stations. Taking this along with the prerogative of the
Commission under the Adm. Code to make reassignments,
petitioners’ re-assignment did not involve any violation of the
constitutional right of petitioners to security of tenure
considering that they retained their positions of Director IV
and would continue to enjoy the same rank, status and
salary at their new assigned stations which they had enjoyed
at the Head Office of the Commission in Metropolitan Manila
as required by the law. Petitioners had not, in other words,
EVA MARIE G. GUTIERREZ
Law 156 – Part I. The Law on Public Officers and Civil Service
acquired a vested right to serve at the Commission's Head
Office.
Secondly, the above conclusion is compelled not only by the
statutory provisions relevant in the instant case, but also by
a long line of cases decided by this Court in respect of
different agencies or offices of government.
o DECS v CA (1990) – Secondary Principal II
o Fernando et al v Sto. Tomas et al (1994) – Mediators-
Arbiters in the NCR
o Quisumbing v Gumban (1967) – District Supervisor
o Miclat v Ganadem (1960) - Welfare Officer Incharge,
Division of Urban, Rural and Community
Administration, Social Welfare Administration
o Sta. Maria v Lopez (1970) – transfer of the Dean,
College of Education, University of the Philippines to
the Office of the President, UP not allowed.
Segovia v Noel (1925); Malcolm
Facts: Vicente Segovia was appointed justice of peace of
Dumanjug, Cebu which he continuously occupied until
reaching the age of 65 when he was ordered by the Secretary
of Justice to vacate the office according to the new law Act
No. 3107. Since then, Pedro Noel, the auxiliary justice of the
peace has acted as justice of the peace for the municipality
of Dumanjug.
Segovia instituted a quo warranto proceedings in the CFI of
Cebu to to inquire into the right of Pedro Noel to occupy the
office of justice of the peace, to oust the latter therefrom, and
to procure reinstatement as justice of the peace of
Dumanjug. To this complaint, Pedro Noel interposed a
Class Notes for 16 June 2011
Page 8 of 10
demurrer on the ground that it did not allege facts sufficient
to constitute a cause of action, because Act No. 3107 was
constitutional and because Mr. Segovia being sixty-five years
old had automatically ceased to be justice of the peace.
CFI Cebu denied the demurrer.
Issue: Whether Act No. 3107 which provides, that justices of
the peace and auxiliary justices of the peace shall be
appointed to serve until they have reached the age of sixty-
five years, should be given retroactive or prospective effect.
Ruling: Following sound canon of statutory construction
that a statute operates prospectively only and never
retroactively, unless the legislative intent to the contrary is
made manifest either by the express terms of the statute or
by necessary implication; Act 3107 should be given
prospective effect only, and so is not applicable to justices of
the peace and auxiliary justices of the peace appointed
before Act No. 3107 went into force.
The rule applies with reference to public offices. Though
there is no vested right in an office, which may not be
disturbed by 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 should be clear in which the purpose is stated.
Dario v Mison (1989); Sarmiento
Facts: When President Aquino came into power, she
proceeded to reorganize the government, upon which Mison,
the Commissioner of Customs sent notices of termination to
394 Custom officials. Some sought reinstatement from CSC
which the latter granted to 279 of them while the others
went directly to SC. Mison also filed a petition questioning
EVA MARIE G. GUTIERREZ
Law 156 – Part I. The Law on Public Officers and Civil Service
the decision of the CSC. RA 6656 was also passed, providing
that all officers and employees who are found by CSC to
have been separated in violation of this Act, shall be
reappointed or reinstated. The validity of this law was also
put into question.
Issue: All parties agree on the validity of the reorganization
per se, leaving the question only on its the nature and
extent.
Ruling: Invariably, transition periods are characterized by
provisions for "automatic" vacancies. They are dictated by
the need to hasten the passage from the old to the new
Constitution free from the "fetters" of due process and
security of tenure.
At this point, we must distinguish removals from
separations arising from abolition of office (not by virtue of
the Constitution) as a result of reorganization carried out by
reason of economy or to remove redundancy of functions. In
the latter case, the Government is obliged to prove good
faith. In case of removals undertaken to comply with clear
and explicit constitutional mandates, the Government is not
hard put to prove anything, plainly and simply because the
Constitution allows it.
The present Constitution does not provide for automatic
vacancies; removals not for cause must be resulting from
reorganization which passed the test of good faith.
RA 6656 does not run counter to the transitory provisions of
the new Constitution on removal not for cause (Sec. 16, Art.
18 Consti); it is constitutional.
Class Notes for 16 June 2011
Page 9 of 10
Melecio-Herrera, dissenting: Sec. 16, Art. 18 Consti
recognizes that reorganization pursuant to Proc. 3 may be
continued during the transition period.
Mathay v CA (1999); Ynares-Santiago
Facts: During his term as Mayor of Quezon City, Mr. Brigido
R. Simon appointed private respondents to positions in the
Civil Service Unit (“CSU”) of the local government of Quezon
City. Civil Service Units were created pursuant to PD 51.
However PD 51 was never published in the Official Gazette.
CSC issued Memorandum Circular No. 30, directing all Civil
Service Regional or Field Offices to recall, revoke and
disapprove within one year from issuance of the said
Memorandum, all appointments in CSUs created pursuant
to PD 51 on the ground that the same never became law.
Among those affected by the revocation of appointments are
private respondents in these three petitions.
For Quezon City CSU employees, the effects of the circular
were temporarily cushioned by the enactment of City
Ordinance No. NC-140, Series of 1990, which established
the Department of Public Order and Safety (“DPOS”). Mayor
Simon remedied the situation by offering private
respondents contractual appointments which he renewed,
and then renewed once more by Mayor Mathay. Upon the
expiry of the appointments however Mayor Mathay refused
to renew them further.
On appeal, CSC ordered the automatic reinstatement of the
respondents to DPOS pursuant the QC Ordinance.
Ruling: Section 3 of the said Ordinance is invalid for being
inconsistent with B.P. 337 (old LGC) for it directs the
EVA MARIE G. GUTIERREZ Class Notes for 16 June 2011
Law 156 – Part I. The Law on Public Officers and Civil Service Page 10 of 10

absorption of the personnel of the defunct CSU into the new

DPOS. The Ordinance refers to personnel and not to
positions. Hence, the city council or sanggunian, through
the Ordinance, is in effect dictating who shall occupy the
newly created DPOS positions. However, a review of the
provisions of B.P. 337 shows that the power to appoint rests
exclusively with the local chief executive and thus cannot be
usurped by the city council or sanggunian through the
simple expedient of enacting ordinances that provide for the
“absorption” of specific persons to certain positions.

By ordering petitioner to “reinstate” private respondents

pursuant to Section 3 of the Ordinance, the Civil Service
Commission substituted its own judgment for that of the
appointing power. This cannot be done. In a long line of
cases,[11] we have consistently ruled that the Civil Service
Commission’s power is limited to approving or disapproving
an appointment. It does not have the authority to direct
that an appointment of a specific individual be made. Once
the Civil Service Commission attests whether the person
chosen to fill a vacant position is eligible, its role in the
appointment process necessarily ends. The Civil Service
Commission cannot encroach upon the discretion vested in
the appointing authority.