UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW

Administrative Law, Law on Public Officers, and Election Law

Atty. Kris Gargantiel

APEL CASE DIGESTS- DAY 3

NOTE:
1. DO NOT JUST COPY-PASTE FROM NET.
2. MAKE SURE IT IS RECIT READY AND FOLLOW THE REQUIRED FORMAT.
3. UPLOAD/INSERT YOUR CASES ACCORDINGLY. (Please refer to the case
assignment: https://bit.ly/35GmphJ)
4. ARIAL, 11, JUSTIFIED
5. DEADLINE: MARCH 14 (MONDAY); 11:59 PM

FORMAT:
● Doctrine: in relation to the APEL
● Facts
● Issue/s
● Ruling

Public Office

Dario vs. Mison, G.R. No. 81954, 8 August 1989

DOCTRINE:

As a general rule, a reorganization is carried out in “good faith” if it is for the purpose of
economy or to make bureaucracy more efficient

FACTS:

In 1986, Cory Aquino promulgated Proclamation No. 3, which is the mandate of the people to
completely reorganize the government. Two years later, President Aquino promulgated EO 127,
which provides for the reorganization of the Ministry of Finance and along with it the
reorganization of the Bureau of Customs and prescribes a new staffing pattern.

Pursuant to the EO, Mison issued a Memorandum, in the nature of “Guidelines on the
Implementation of Reorganization Executive Orders,” prescribing the procedure in personnel
placement. It also provided that by February 1988, all employees covered by EO 127 and the
grace period extended to the Bureau of Customs by the President on reorganization shall be: a)
informed of their re-appointment, or b) offered another position in the same department or
agency, or c) informed of their termination. Further, those incumbents whose positions are not
carried in the new reorganization pattern, or who are not re-appointed, shall be deemed
separated from the service. A total of 394 officials and employees of the Bureau of Customs
were given individual notices of separation.

Cesar Dario was one of the Deputy Commissioners of the Bureau of Customs until his relief on
orders of Commissioner Mison on January 26, 1988. He questions the legality of his dismissal,
which contends that neither the E.O. nor the staffing pattern proposed by the Secretary of
Finance abolished the office of Deputy Commissioner of Customs, but, rather, increased it to
three. Lastly, he claims that under the Provisional Constitution, the power to dismiss public
officials without cause ended on February 25, 1987, and that thereafter, public officials enjoyed
security of tenure under the provisions of the 1987 Constitution.

ISSUE:

Whether or not reorganization is valid.

RULING:

No. The Court held that the State can still carry out reorganizations provided that it is done in
good faith. As a general rule, a reorganization is carried out in “good faith” if it is for the purpose
of economy or to make bureaucracy more efficient. In that event no dismissal or separation
actually occurs because the position itself ceases to exist. And in that case the security of
tenure would not be a Chinese wall. Be that as it may, if the abolition which is nothing else but a
separation or removal, is done for political reasons or purposely to defeat security of tenure, or
otherwise not in good faith, no valid abolition takes place and whatever abolition is done is void
ab initio. There is an invalid abolition as where there is merely a change of nomenclature of
positions or where claims of economy are belied by the existence of ample funds.

The Court finds that Commissioner Mison did not act in good faith since after February 2, 1987
no perceptible restructuring of the Customs hierarchy - except for the change of personnel - has
occurred, which would have justified (all things being equal) the contested dismissals.

Under E.O. No. 39, the Commissioner of Customs may "appoint all Bureau personnel except
those appointed by the President. Thus, with respect to Deputy Commissioners Cesar Dario
and Vicente Feria, Jr., Commissioner Mison could not have validly terminated them, they being
Presidential appointees.

That Customs employees, under Section 59 of E.O. No. 127 had been on a mere holdover
status does not mean that the positions held by them had become vacant. The occupancy of a
position in a holdover capacity was conceived to facilitate reorganization and would have lapsed
on 25 February 1987 (under the Provisional Constitution), but advanced to February 2, 1987
when the 1987 Constitution became effective. After the said date the provisions of the latter on
security of tenure govern. Petition is hereby granted.
 Buklod ng Kawaning EIIB vs. Zamora, G.R. No. 142801-2, 10 July 2001

Nature: This is a petition for certiorari, prohibition and mandamus seeking the nullification of
Executive Order No. 191 and Executive Order No. 223 on the ground that they were issued by
the Office of the President with grave abuse of discretion and in violation of their constitutional
right to security of tenure.

Facts: In 1987, Pres. Aquino issued EO No. 127 establishing the Economic Intelligence and
Investigation Bureau (EIIB). Pres. Aquino later on issued a Memorandum Order establishing
EIIB as the agency of primary responsibility for anti-smuggling operations.

In 2000, Pres Estrada deactivated EIIB and transferred its functions to the Bureau of Customs
and the National Bureau of Investigation. The Presidential Anti-Smuggling Task Force "Aduana”
was created. Then the EIIB personnel were deemed separated from service.

Petitioners contend that the issuance of the afore-mentioned executive orders is: (a) a violation
of their right to security of tenure; (b) tainted with bad faith as they were not actually intended to
make the bureaucracy more efficient but to give way to Task Force "Aduana," the functions of
which are essentially and substantially the same as that of EIIB; and (c) a usurpation of the
power of Congress to decide whether or not to abolish the EIIB.

Issue: Whether or not the President has the authority to reorganize the executive department?

Ruling: The SC held in the affirmative.

Surely, there exists a distinction between the words "deactivate" and "abolish." To "deactivate"
means to render inactive or ineffective or to break up by discharging or reassigning personnel,
while to "abolish" means to do away with, to annul, abrogate or destroy completely. In essence,
abolition denotes an intention to do away with the office wholly and permanently. Thus, while in
abolition, the office ceases to exist, the same is not true in deactivation where the office
continues to exist, albeit remaining dormant or inoperative. Be that as it may, deactivation and
abolition are both reorganization measures.

The general rule has always been that the power to abolish a public office is lodged with the
legislature. This proceeds from the legal precept that the power to create includes the power to
destroy. A public office is either created by the Constitution, by statute, or by authority of law.
Thus, except where the office was created by the Constitution itself, it may be abolished by the
same legislature that brought it into existence.

The exception, however, is that as far as bureaus, agencies or offices in the executive
department are concerned, the President's power of control may justify him to inactivate the
functions of a particular office, or certain laws may grant him the broad authority to carry out
reorganization measures.
In the case of Larin v. Executive Secretary, it was held that the President is authorized to effect
organizational changes including the creation of offices in the department or agency concerned
– the BIR.

Another legal basis of E.O. No. 132 is Section 20, Book III of E.O. No. 292 which states:

'Sec. 20. Residual Powers. – Unless Congress provides otherwise, the President shall exercise
such other powers and functions vested in the President which are provided for under the laws
and which are not specifically enumerated above or which are not delegated by the President in
accordance with law.' (italic ours)

Presidential Decree No. 1772 which amended Presidential Decree No. 1416 expressly granted
the President of the Philippines the continuing authority to reorganize the national government,
which includes the power to group, consolidate bureaus and agencies, to abolish offices, to
transfer functions, to create and classify functions, services and activities and to standardize
salaries and materials.

The EIIB is a bureau attached to the Department of Finance. It falls under the Office of the
President. Hence, it is subject to the President's continuing authority to reorganize.

An examination of the pertinent Executive Orders shows that the deactivation of EIIB and the
creation of Task Force Aduana were done in good faith. It was not for the purpose of removing
the EIIB employees, but to achieve the ultimate purpose of E.O. No. 191, which is economy.
While Task Force Aduana was created to take the place of EIIB, its creation does not entail
expense to the government.

LAUREL vs. DESIERTO

G.R. No. 145368. 12 April 2022

FACTS:
One of the appointed to chair the reconstituted National Centennial Commission (NCC) was
Vice President Salvador H. Laurel. The NCC was characterized as an “ad-hoc body”, the
existence of the Commission “shall terminate upon the completion of all activities related to the
Centennial Celebrations”. Subsequently, Philippine Centennial Expo ’98 Corporation (Expocorp)
was created and Laurel was elected as the Chief Executive Officer.

President Estrada issued an administrative order, creating an ad hoc and independent citizens’
committee to investigate all the facts and circumstances surrounding the Philippine centennial
projects. The committees recommended that a formal complaint and preliminary investigation be
conducted before the Office of the Ombudsman against former NCC and Expocorp chair Laurel
for the alleged violation of the Anti-Graft and Corrupt Practices Act.
Laurel assailed the jurisdiction of the Ombudsman on the grounds that Expocorp was a private
corporation, the National Centennial Commission (NCC) was not a public office, and he, both as
chairman of the NCC and of Expocorp, was not a “public officer” as defined under the Anti-Graft
and Corrupt Practices Act.

ISSUE:
Whether the Office of the Ombudsman has jurisdiction over the case.

RULING:
The Supreme Court ruled in the affirmative.

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, agency
or instrumentality thereof, including government-owned or controlled corporations.

The definition of public officers cited in jurisprudence is that provided by Mechem, a recognized
authority on the subject:

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.

Mechem describes the delegation to the individual of some of the sovereign functions of
government as "[t]he most important characteristic" in determining whether a position is a public
office or not.

The Supreme Court held that the NCC performs executive functions, and the President, upon
whom the executive power is vested, created the NCC by executive order. Since NCC performs
sovereign functions, it is therefore a public office, and Laurel, as its Chair, 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.
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.
Even assuming that Expocorp is a private corporation, petitioner's position as Chief Executive
Officer (CEO) of Expocorp arose from his Chairmanship of the NCC. Consequently, his acts or
omissions as CEO of Expocorp must be viewed in the light of his powers and functions as NCC
Chair.

Public Officers

Azarcon vs. Sandiganbayan, G.R. No. 116033, 26 February 1997

ALFREDO L. AZARCON, petitioner, vs. SANDIGANBAYAN, PEOPLE OF THE PHILIPPINES

and JOSE C. BATAUSA, respondents.
G.R. No. 116033 February 26, 1997

DOCTRINE: The Information does not charge petitioner Azarcon of being a co-principal,
accomplice or accessory to a public officer committing an offense under the Sandiganbayan’s
jurisdiction. Thus, unless petitioner be proven a public officer, the Sandiganbayan will
have no jurisdiction over the crime charged. Article 203 of the RPC determines who are
public officers.
For the purpose of applying the provisions of this and the preceding titles of the book,
any person who, by direct provision of the law, popular election, popular election or
appointment by competent authority, shall take part in the performance of public
functions in the Government of the Philippine 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 classes, shall be deemed to be a public officer.

FACTS:
Petitioner Alfredo Azarcon owned and operated an earth-moving business, hauling "dirt and
ore." His services were contracted by PICOP at its concession in Mangagoy, Surigao del Sur.
Occasionally, he engaged the services of sub-contractors like Jaime Ancla whose trucks were
left at the former's premises.
A Warrant of Distraint of Personal Property was issued by the BIR addressed to Regional
Director Jose Batausa. The said warrant commands the latter to distraint the goods, chattels or
effects and other personal property of Jaime Ancla, a sub-contractor of accused Azarcon and, a
delinquent taxpayer. A Warrant of Ganrnishment was also issued to Azarcon ordering him to
transfer, surrender, transmit and/or remit to BIR the property in his possession owned by
taxpayer Ancla.
Azarcon signed the "Receipt for Goods, Articles, and Things Seized Under Authority of the
National Internal Revenue," assumed the undertakings of the Isuzu dump truck. Subsequently,
he wrote a letter to BIR’s Regional Director for Revenue and states that because Ancla withdrew
from Azarcon the possession of the truck, he wishes to relinquish his responsibilities he may
have over it. The petitioner reported the taking of the truck to the security manager of PICOP,
Mr. Delfin Panelo, and requested him to prevent this truck from being taken out of the PICOP
concession. By the time the order to bar the truck's exit was given, however, it was too late.
However, the BR Regional Director reminded him that while he is in the possession of the truck
owned by Ancla, he voluntarily assumed the liabilities of safekeeping and preserving the unit in
behalf of the Bureau of Internal Revenue.
Regional Director Bautista filed a complaint against Azarcon and Ancla. They were then
charged before the Sandiganbayan with the crime of malversation of public funds or property.
Petitioner filed a motion for reinvestigation and alleged that, among others, he is not a public
officer. Therefore, there is doubt as to why he was being charged with malversation. The motion
was granted and after an reinvestigation, the prosecution officer ordered for the withdrawal of
the information. However, the same was overruled by the Ombudsman.
A motion to dismiss was filed on the ground that Sandiganbayan have no jurisdiction over
Azarcon as he is not a public officer. The motion was denied.
After the presentation of evidence, the Sandiganbayan found Azarcon to be guilty as principal of
Malversation of Public Funds. MR was denied.
Hence, this petition.

ISSUE:
Whether or not the Sandiganbayan has jurisdiction over the Azarcon.

RULING:
NO, Sandiganbayan has no jurisdiction over the petitioner.
According to PD 1606, as amended by PD 1861 provides that Sandiganbayan has jurisdiction
over public officers and employees in relation to their office, including those employed in
government-owned or controlled corporations. It can also have jurisdiction over private
individual when the complaint charges the private individual either as a co-principal, accomplice
or accessory of a public officer or employee who has been charged with a crime within its
jurisdiction.
In the present case, Azarcon is not a public officer.
The Information does not charge petitioner Azarcon of being a co-principal, accomplice or
accessory to a public officer committing an offense under the Sandiganbayan's jurisdiction.
Thus, unless petitioner be proven a public officer, the Sandiganbayan will have no jurisdiction
over the crime charged. Article 203 of the RPC determines who are public officers:
 Who are public officers. — For the purpose of applying the provisions of this and the
preceding titles of the book, any person who, by direct provision of the law, popular
election, popular election or appointment by competent authority, shall take part in
the performance of public functions in the Government of the Philippine 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 classes, shall be deemed to
be a public officer.
Thus,to be a public officer, one must be —
1. Taking part in the performance of public functions in the government, or
Performing in said Government or any of its branches public duties as an
employee, agent, or subordinate official, of any rank or class; and
2. That his authority to take part in the performance of public functions or to perform
public duties must be —
a. by direct provision of the law, or
b. by popular election, or
c. by appointment by competent authority.
The Court ruled that the signing the receipt for the truck constructively distrained by the BIR,
commenced to take part in an activity constituting public functions, he obviously may not be
deemed authorized by popular election. His designation as a custodian of distrained property
does not qualifies as appointment by direct provision of law, or by competent authority. While the
BIR had authority to require Petitioner Azarcon to sign a receipt for the distrained truck, the
NIRC did not grant it power to appoint Azarcon a public officer. The BIR's power authorizing a
private individual to act as a depositary cannot be stretched to include the power to appoint him
as a public officer. This is in consonance with Article 222 of the RPC which provides:
Officers included in the preceding provisions. — The provisions of this chapter shall
apply to private individuals who, in any capacity whatever, have charge of any
insular, provincial or municipal funds, revenues, or property and to any administrator
or depository of funds or property attached, seized or deposited by public authority,
even if such property belongs to a private individual.
The language of the foregoing provision is clear. A private individual who has in his charge any
of the public funds or property enumerated therein and commits any of the acts defined in any of
the provisions of Chapter Four, Title Seven of the RPC, should likewise be penalized with the
same penalty meted to erring public officers. Nowhere in this provision is it expressed or implied
that a private individual falling under said Article 222 is to be deemed a public officer.
 Galero vs. CA, G.R. No. 151121, 21 July 2008

Facts:

Geocadin was officially assigned at the Napocor, supervising the security guards of four
stations. He was established to be the Station Commander of all the security guards assigned at
the PPA-PMO. As Acting Station Commander of Port Police Division, petitioner was the
immediate superior of Geocadin whose duty was to supervise the security guards and to certify
to the truth of the entries they made in their DTRs. The payment of the security guards’ salaries
was based on the DTRs they prepared as certified by petitioner. Geocadin’s DTRs submitted to
Napocor and PPA show that he was reporting for duty at the two offices at the same time, which
is physically impossible.

The Office of the Ombudsman finds petitioner guilty of Dishonesty for falsifying official
documents, and was dismissed from service. The CA affirmed the Ombudsman’s decision.

Issue:

Whether the CA gravely erred in affirming the findings of the Ombudsman.

Ruling:

While not totally exonerating petitioner from the charges filed against him, a
modification of the nature of petitioner’s administrative liability as well as the penalty that
was correspondingly imposed, is in order. The only basis of petitioner’s liability for dishonesty,
etc., was the presumed collusion between him and Geocadin. This stemmed from the unproven
fact that Geocadin was a ghost employee and that petitioner was receiving part of his
(Geocadin) salary. There was nothing in the record which establishes petitioner’s
collusion or conspiracy with Geocadin to defraud the government. Petitioner can be held
administratively liable only for simple neglect of duty --- not for dishonesty, for falsification of
official document, or for causing undue injury to the government.

____________________________________________________________________________

The powers, functions and duties of the Ombudsman are set forth in Section 15(3) of
Republic Act No. 6770 (R.A. 6770) otherwise known as the "Ombudsman Act of 1989" which
substantially restates Section 13(3), Article XI of the 1987 Constitution, thus:

SEC. 15. Powers, Functions and Duties. – The Office of the Ombudsman shall have the
following powers, functions and duties:

xxxx

(3) Direct the officer concerned to take appropriate action against a public officer or employee at
fault or who neglects to perform an act or discharge a duty required by law, and recommend his
removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith;
or enforce its disciplinary authority as provided in Section 21 of this Act; Provided, That the
refusal by any officer without just cause to comply with an order of the Ombudsman to remove,
suspend, demote, fine, censure or prosecute an officer or employee who is at fault or who
neglects to perform an act or discharge a duty required by law shall be a ground for disciplinary
action against said officer.

The restrictive interpretation of the word "recommend" had long been rejected by this
Court for being inconsistent with the wisdom and spirit behind the creation of the Office
of the Ombudsman. Instead, to be faithful to the constitutional objective, the word has been
construed to mean that the implementation of the Ombudsman’s order of dismissal,
suspension, etc., is mandatory but shall be coursed through the proper officer.

Although the Constitution lays down the specific powers of the Ombudsman, it likewise
allows the legislature to enact a law that would grant added powers to the Ombudsman.
To be sure, the provisions of R.A. 6770, taken together, reveal the manifest intent of the
lawmakers to bestow the Office of the Ombudsman full administrative disciplinary
authority. Specifically, it is given the authority to receive complaints, conduct investigations,
hold hearings in accordance with its rules of procedure, summon witnesses and require the
production of documents, place under preventive suspension public officers and employees
pending an investigation, determine the appropriate penalty imposable on erring public officers
or employees as warranted by the evidence, and necessarily, impose the said penalty. Clearly,
the Office of the Ombudsman was given teeth to render this constitutional body not merely
functional but also effective.

Luspo vs. People, G.R. No. 188487, 14 February 2011

FACTS:
Acting on a report of the COA regarding disbursement irregularities for combat, clothing, and
individual equipment (CCIE) in Regions VII and VIII, North Capital Command, the PNP
Inspector General (OIG), conducted an investigation.

The Office of the Directorate for Comptrollership issued two (2) Advices of Sub-Allotment
(ASAs), each amounting to Five Million Pesos (₱5,000,000.00), purportedly for the purchase of
CCIE for the North CAPCOM.

The ASAs were approved by Director Guillermo Domondon, Chief Director of ODC, and signed
by Police Superintendent Van Luspo. The ASAs were issued without an approved personnel
program from the Directorate for Personnel. Upon receipt of the ASAs, Montano directed
Duran, the Chief of Regional Finance Service Unit, to prepare and draw 100 checks of
₱100,000.00 each, for a total of ₱10,000,000.00. The checks were payable to four enterprises,
each to receive 25 checks. All enterprises were owned and operated by Margarita Tugaoen
(Private Person).
On the basis of the foregoing findings, the Office of the Special Prosecutor (OSP) filed
complaints for Malversation of Public Funds under Article 217 of the Revised Penal Code
against Nazareno (Director General), Domondon (Director for Comptrollership), Montano
(Chief Comptroller), Tugaoen, and Pedro Sistoza (Director Sistoza), Regional Director, North
CAPCOM. The OSP approved the resolution of the OMB-AFP, with the modification that the
proper offense to be charged was violation of Section 3(e) of R.A. No. 3019. Although the
investigative report did not mention Luspo’s (Director for Comptrollership) criminal or
administrative liability, the OMB-AFP included him in the charge since his signature appeared on
the questioned ASAs.

The anti-graft court found sufficient evidence inculpating Luspo, Duran, Montano, and
Tugaoen for conspiring and confederating with one another to deprive the government/PNP of
₱10 million, viz.:

Accused Luspo issued the two (2) ASAs without the authority from the Directorate for
Comptrollership nor from the Chief PNP. These ASAs eventually became the basis in the
drawing of the one hundred checks signed by accused Duran and Montano that effected the
release of the funds intended for the purchase of CCIE items to accused Tugaoen. These series
of acts spelled nothing but conspiracy which showed their common design in achieving their one
common goal to the damage and prejudice of the government.

Adopting the observations of the Ombudsman (AFP), the Sandiganbayan elaborated:

The swiftness of how the supposed transaction of CCIE items at North CAPCOM was
consummated at a record time of two (2) days from the issuance of the ASAs to the
encashment of the checks which normally take weeks if not months (with all
programming/requisition, the bidding process, series of deliveries, and inherent red tapes) only
indicates signs of deep-rooted conspiracy.

ISSUE: Whether the Sandiganbayan’s finding that the petitioner was guilty of the offense of
violation of Section 3(e) of R.A. 3019 was not supported by evidence on record.

RULING: It bears emphasis that the charge against Luspo’s co-accused Domondon consisted
of the same omissions. Both offered similar documentary and testimonial pieces of evidence for
their exoneration, but the same were appreciated only in Domondon’s favor. The
Sandiganbayan shelved Luspo’s claim that he was authorized by Domondon to sign the ASAs in
the former’s behalf, and tagged the same as self-serving and unsubstantiated.

We disagree with the Sandiganbayan. A perusal of the records at our and the
Sandiganbayan’s wherewithal reveals the contrary and had the trial court expanded the range of
its probing, it would not have arrived at divergent conclusions regarding the two accused.

Generally, factual findings of the anti-graft court are conclusive upon the Supreme Court, except
where: (1) the conclusion is a finding grounded entirely on speculation, surmise and
conjectures; (2) the inference made is manifestly mistaken; (3) there is grave abuse of
discretion; (4) the judgment is based on misapprehension of facts and the findings of fact
of the Sandiganbayan are premised on the absence of evidence and are contradicted by
evidence on record.

The last instance attends in the instant case. Clear and unmistakable is the fact that Domondon
issued a Memorandum delegating to Luspo and a certain Osia the authority to sign for him
(Domondon) and on his behalf, allotments for personal services in the amount not exceeding
Five Million Pesos (₱5,000,000.00), and in his absence, the amount of ₱20,000,000.00. This
was, in fact, the hammer that drove the nail and linked Domondon to the conspiracy theory
advanced by the prosecution.

As previously mentioned, the Sandiganbayan absolved Domondon of any liability in the

issuance of the ASAs by virtue of the Delegation of Authority and Schedule of Delegation issued
by Nazareno, authorizing him (Domondon) to charge CCIE to "personnel services 01," and to
release funds therefor, irrespective of amount, without need for a prior request program from the
Directorate of Personnel. The Sandiganbayan also took judicial notice of the OMB Order dated
December 15, 1998 and Memorandum dated June 9, 1999 of the OMB’s legal counsel in
Criminal Case No. 20191, stating that Domondon committed no prohibited act in authorizing the
issuance of the ASAs for RECOM since GHQ-AFP Circular No. 8 allowed the charging of CCIE
to either the Personal Services Fund or Maintenance and Other Operating Expense Fund.

The Sandiganbayan ruled that these pieces of evidence debunked the prosecution’s allegation
that the ASAs were charged against Personal Services Fund without the necessary realignment
authority from the DBM. As such, the court negated Domondon’s culpability for the crime
charged. We see no reason to treat Luspo differently because the authority delegated by
Nazareno to Domondon inevitably passed down to the latter’s sub-delegate, Luspo.

Hence, the conviction of Van Luspo is REVERSED and SET ASIDE.

NOTES regarding discretionary and/ministerial duties of public officers:

The OSP questions the validity of the sub-delegation, arguing that Domondon cannot further
delegate an already delegated task. The contention is untenable.

Public officers exercise discretionary and/or ministerial duties. A duty is discretionary if the
officer is allowed to determine how and when it is to be performed and to decide this matter one
way or the other and be right either way. It is not susceptible to delegation because it is imposed
by law as such, and the public officer is expected to discharge it directly and not through the
intervening mind of another.

On the other hand, a ministerial duty is one that requires neither the exercise of official
discretion nor judgment. It connotes an act wherein nothing is left to the discretion of the person
executing it. It is practically a mechanical act; hence, what can be done by the delegate may be
sub-delegated by him to others. Based on the foregoing yardstick, was the task delegated by
Nazareno to Domondon discretionary or ministerial?
A reading of the significant provisions of the "Delegation of Authority" discloses that the duty
delegated to Domondon was merely ministerial. Verily then, the duty delegated by Nazareno to
Domondon was the ministerial duty of signing ASAs to effect the release of funds. Being merely
ministerial, Domondon was allowed to sub-delegate, as he did sub-delegate, the task to his
subordinate, Luspo. As such, the signature affixed by Luspo to the ASAs had the same effect as
if it was made by Nazareno himself.

Therefore, Luspo, in the same manner as Domondon, had satisfactorily adduced evidence of
good faith to overturn and repudiate the imputation of evident bad faith against him. He
committed no prohibited act in signing and issuing the assailed ASAs because there is ample
documentary and testimonial evidence showing that Luspo was duly authorized by Domondon
to release personal services funds by signing ASAs on the latter’s behalf.

Camarines Norte vs. Gonzales, G.R. No. 185740, 23 July 2013

DOCTRINE: Congress has the power and prerogative to introduce substantial changes in the
provincial administrator position and to reclassify it as a primarily confidential, non-career
service position.

All permanent officers and employees in the civil service, regardless of whether they belong to
the career or non-career service category, are entitled to security of tenure; they cannot be
removed from office except for cause provided by law and after procedural due process. Serving
at the confidence of the appointing authority, the primarily confidential employee's term of office
expires when the appointing authority loses trust in the employee.

FACTS: Gonzales was appointed as the provincial administrator of Camarines Norte by then
Governor Padilla, Jr. It was in a permanent capacity. Governor Pimentel sent Gonzales a
memorandum directing her to explain why no administrative charges should be filed against her.
An Ad Hoc Investigation Committee found her guilty. Governor Pimentel adopted the Ad Hoc
Investigation Committee's recommendation and dismissed Gonzales. Gonzales appealed and
the CSC found Gonzales guilty of insubordination and suspending her for six months.

Governor Pimentel reinstated Gonzales but terminated her services the next day for lack of
confidence. The CSC directed Gonzales' reinstatement. According to the CSC, Gonzales has
acquired a vested right to her permanent appointment as provincial administrator and is entitled
to continue holding this office despite its subsequent classification as a coterminous position.

Gonzales wrote the CSC alleging that Governor Typoco, Jr., Camarines Norte's incumbent
governor, refused to reinstate her. The CSC ordered Gonzales' reinstatement to the provincial
administrator position, or to an equivalent position. Thus, the petitioner, through Governor
Typoco, filed a petition for review before the CA, seeking to nullify the CSC's Resolution. The
CA supported the CSC's ruling.

ISSUES:

1. Whether Congress has re-classified the provincial administrator position from a career
service to a primarily confidential, non-career service position;
2. Whether Gonzales has security of tenure over her position as provincial administrator of
the Province of Camarines Norte.

RULING: We find the petition meritorious.

1. Congress has reclassified the provincial administrator position as a primarily confidential,

non-career position. Congress' reclassification of the provincial administrator position in
RA 7160 is a valid exercise of legislative power that does not violate Gonzales' security
of tenure.

The creation of the provincial administrator position under the old LGC used to be a
prerogative of the Sangguniang Panlalawigan. RA 7160 also amended the qualifications
for the provincial administrator position. RA 7160 made the provincial administrator
position coterminous with its appointing authority, to emphasize the close relations that
the provincial administrators' functions have with the office of the governor.

The nature of a position may change by law according to the dictates of Congress. The
right to hold a position, on the other hand, is a right that enjoys constitutional and
statutory guarantee, but may itself change according to the nature of the position.

In the current case, Congress, through RA 7160, did not abolish the provincial
administrator position but significantly modified many of its aspects.

Gonzales' permanent appointment as provincial administrator prior to the enactment of

RA 7160 is immaterial to her removal as provincial administrator. For purposes of
determining whether Gonzales' termination violated her right to security of tenure, the
nature of the position she occupied at the time of her removal should be considered, and
not merely the nature of her appointment at the time she entered government service.

2. Executive Order No. 503 does not grant Gonzales security of tenure in the provincial
administrator position on a permanent capacity. Gonzales has security of tenure, but
only as a primarily confidential employee.

EO 503 does seem to extend the provincial administrators' security of tenure in their
permanent appointments even beyond the effectivity of RA 7160. EO 503, however,
does not apply to employees of the local government affected by RA 7160's enactment.
EO 503's whereas clauses confirms that it applies only to national government
 employees whose functions are to be devolved to local governments. Thus, paragraph
8, Section 2 (a) of EO 503 cannot apply to Gonzales, a provincial administrator. The
existence of the provincial administrator position was a prerogative of the Sanggunian
Panlalawigan, and was not even a mandatory public office under the old LGC. It is
clearly not a national government position whose functions are to be devolved to the
local governments.

The grant of permanent status to incumbent provincial administrators, despite the clear
language and intent of RA 7160 to make the position coterminous, is an act outside the
President's legitimate powers. The power to create, abolish and modify public offices is
lodged with Congress. The President cannot, through an Executive Order, grant
permanent status to incumbents, when Congress by law has declared that the positions
they occupy are now confidential.

In the present case where the trust and confidence has been irretrievably eroded, we
cannot fault Governor Pimentel's exercise of discretion when he decided that he could
no longer entrust his confidence in Gonzales.

Security of tenure in public office simply means that a public officer or employee shall not
be suspended or dismissed except for cause, as provided by law and after due process.
It cannot be expanded to grant a right to public office despite a change in the nature of
the office held.

Gonzales' termination for lack of confidence was lawful. She could no longer be
reinstated as provincial administrator of Camarines Norte or to any other comparable
position.

De Castro vs. Field Investigation Office, Ombudsman, G.R. No. 202342, 19 July 2017

DOCTRINE: When a public officer’s accumulated wealth is manifestly disproportionate to his

lawful income and such public officer fails to properly account for or explain where such wealth
had been sourced, he becomes administratively liable for Dishonesty. The Constitution requires
that all public officers and employees be, at all times, accountable to the people; serve with
utmost responsibility, integrity, loyalty and efficiency; act with patriotism and justice; and lead
modest lives. Public service demands the highest level of honesty and transparency from its
officers and employees.

FACTS: Following a lifestyle check conducted on government officials and employees by

the Office of the Ombudsman (Ombudsman), through its Field Investigation Office (FIO), it was
found that Leovigildo De Castro (Leovigildo) and his wife Marina’s assets and expenses from
1974 to 2004 amounted to Php30,829,603.48, which was manifestly disproportionate to their
declared income of Php10,841,412.28. Leovigildo was then administratively charged before the
Ombudsman for his failure to file truthful Statements of Assets and Liabilities (SALNs) for 1994,
1995, and 1996, and explain the manifest disproportion between his declared income from 1973
to 2004 and the value of the assets he acquired within the same period.

In his defense, Leovigildo maintained that the assets which he and Marina acquired were all
reported in their SALNs and that FIO bloated his net worth. He insisted that his children are all
professionals who possess the financial capacity to acquire the assets that the FIO wrongfully
attributed to him. The Ombudsman found him guilty of Dishonesty and Grave Misconduct, and
dismissed him from service.

On appeal, Leovigildo admits that while he failed to report some of his assets in his 1994, 1995
and 1996 SALNs, such failure was an honest mistake which he voluntarily rectified in his
succeeding SALNs.

The CA dismissed Leovigildo’s appeal, holding that his liability rests not only on the basis of
such omissions, but primarily on his failure to explain the manifest disproportion between his
declared income and the assets in his name, and in the names of his children.

ISSUE: Whether Leovigildo may be held administratively liable for Dishonesty and Grave
Misconduct.

RULING: The petition for review on certiorari is GRANTED IN PART. The charge of Grave
Misconduct against petitioner Leovigildo A. De Castro is DISMISSED. However, his conviction
for Dishonesty is AFFIRMED.

Leovigildo’s administrative liability primarily rests on his failure to faithfully comply with the SALN
requirement, and the acquisition of assets manifestly disproportionate to his lawful income.
These acts, while undoubtedly inimical to public service, do not constitute Grave Misconduct.

Misconduct is an intentional wrongdoing or a deliberate violation of a rule of law or standard of

behavior. Misconduct is grave where the elements of corruption, a clear intent to violate the law,
or a flagrant disregard of established rules are present. To constitute Misconduct, the act or
omission complained of must have a direct relation to the public officer’s duties and affect not
only his character as a private individual, but also, and more importantly, the performance of his
official duties as a public servant.

Hence, to hold Leovigildo liable for Grave Misconduct, the acts and omissions for which he was
charged must be of such character as to have had an effect on his duties as Chief Customs
Operations Officer. However, such is not the case here.

Nevertheless, there is substantial evidence to hold Leovigildo guilty of Dishonesty for having
acquired assets manifestly disproportionate to his lawful income, and concealing the same by
deliberately placing them in the names of his children. While mere omission from or
misdeclaration in one’s SALN per se do not constitute Dishonesty, an omission or
misdeclaration qualifies as such offense when it is attended with malicious intent to conceal the
truth, as Dishonesty implies a disposition to lie, cheat, deceive, or defraud.

Here, Leovigildo’ s malicious intent to conceal the Disputed Assets is evident. Leovigildo
deliberately placed the disputed assets in the names of his children for the purpose of
concealing the same. While Leovigildo maintains that his children had the financial capacity to
acquire the disputed assets, the evidence on record clearly show otherwise. Albeit at present
they are all lucratively employed, Leovigildo’s children were able to acquire real and personal
properties despite the fact that at the time of the said properties’ acquisition they had no
financial capacity to do so. Leovigildo failed to overturn the factual findings of the Ombudsman
on this matter.

When a public officer’s accumulated wealth is manifestly disproportionate to his lawful income
and such public officer fails to properly account for or explain where such wealth had been
sourced, he becomes administratively liable for Dishonesty. In this case, the disproportion
between Leovigildo and Marina’s declared income (Php10,841,412.28) and the acquisition cost
of the disputed assets (Php23,717,226.89) is too stark to be ignored.

Public service demands the highest level of honesty and transparency from its officers and
employees. The Constitution requires that all public officers and employees be, at all times,
accountable to the people; serve with utmost responsibility, integrity, loyalty and efficiency; act
with patriotism and justice; and lead modest lives. Public office is a public trust; it must be
treated as a privilege rather than a right, and rest firmly upon one’s sense of service rather than
entitlement.

The constitutionalization of public accountability shows the kind of standards of public officers
that are woven into the fabric of our legal system. To reiterate, public office is a public trust,
which embodies a set of standards such as responsibility, integrity and efficiency. Unfortunately,
reality may sometimes depart from these standards, but our society has consciously embedded
them in our laws so that they may be demanded and enforced as legal principles, and the Court
is mandated to apply these principles to bridge actual reality to the norms envisioned for our
public service.

Baring vs. Elena Loan Credit Company, G.R. No. 224225, 14 August 2017

DOCTRINE: Issuance of writ of possession; Difference of ministerial and Discretionary Act

FACTS:

Defendants-appellants Norma Baring, Esmeraldo Hernaez, and Sps. Virgilio and Rosario
Bernardino obtained a series of loans and other credit accommodations in the initial amount of
P300,000.00 from herein petitioner-appellee Elena Loan and Credit Company, Inc. As a security
for the said loan, Baring executed a Deed of Real Estate Mortgage over a parcel of land, with
improvements located at Las Pinas City. In the Real Estate Mortgage, the parties agreed that
Elena Loan, as the mortgagee, may foreclose the mortgage extrajudicially should Baring, the
mortgagor, default in the payment of her obligations.

Subsequently, the debtors failed to pay their obligations despite repeated demands.
Consequently, Elena Loan filed a Petition for Foreclosure for the said property. During the public
auction, Elena Loan merged as the highest bidder and was later on issued a Certificate of Sale.

Accordingly, as the new owner of the subject property, Elena Loan sent a demand letter to
Baring and Hernaez requesting them to vacate the subject property. However, the demand
remained unheeded.

On December 4, 2009, Elena Loan filed an Ex-Parte Petition for the Issuance of a Writ of
Possession. In its Petition, Elena Loan prayed for the issuance of a writ of possession directing
the sheriff to eject the mortgagor Baring and place it in complete possession of the subject
property, free from any adverse occupants.

The RTC granted Elena Loan’s prayer for writ of possession. Petitioner filed an appeal with the
CA which was denied for lack of merit.

Petitioner filed a Manifestation with motion for reconsideration where she claimed that
respondent is not authorized by the Securities and Exchange Commission (SEC) to act as a
lending company and, accordingly, it is devoid of any authority and personality to file the petition
for foreclosure of the real estate mortgage and to request for the issuance of an ex parte writ of
possession in its favor.

The CA denied petitioner’s motion for reconsideration saying that the question laid by petitioner
regarding the legal personality and authority of respondent to file the petition for issuance of a
writ of possession is clearly misplaced and cannot work to defeat the latter’s right to the
issuance of the writ of possession as the absolute owner of the subject property.

ISSUE:

Whether Elena Loan is not authorized to conduct its business as a lending company under RA
9474 thus they cannot pursue their objective as a lending company if there is no authorization
from the securities and exchange commission

HELD:

The CA correctly affirmed the RTC’s issuance of the writ of possession over the subject
property.

Section 7 of Act No. 3135, as amended by Act 4118, governs the issuance of a writ of
possession in cases of extrajudicial foreclosure sales of real estate mortgage, to wit:
 Sec. 7. In any sale made under the provisions of this Act, the purchaser may petition the
Court of First Instance of the province or place where the property or any part thereof is
situated, to give him possession thereof during the redemption period, furnishing bond in
an amount equivalent to the use of the property for a period of twelve months, to
indemnify the debtor in case it be shown that the sale was made without violating the
mortgage or without complying with the requirements of this Act. Such petition shall be
made under oath and filed in form of an ex parte motion x x x and the court shall, upon
approval of the bond, order that a writ of possession issue, addressed to the sheriff of
the province in which the property is situated, who shall execute said order immediately.

Hence, a writ of possession may be issued in favor of a purchaser in a foreclosure sale of a real
estate mortgage either (1)within the one-year redemption period, upon the filing of a bond; or (2)
after the lapse of the redemption period, without need of a bond.Within the one-year redemption
period, a purchaser in a foreclosure sale may apply for a writ of possession by filing a petition in
the form of an ex parte motion under oath for that purpose. Upon the filing of such motion with
the RTC having jurisdiction over the subject property and the approval of the corresponding
bond, the law, also in express terms, directs the court to issue the order for a writ of possession.
On the other hand, after the lapse of the redemption period, a writ of possession may be issued
in favor of the purchaser in a foreclosure sale as the mortgagor is now considered to have lost
interest over the foreclosed property. Consequently, the purchaser, who has a right to
possession after the expiration of the redemption period, becomes the absolute owner of the
property when no redemption is made. In this regard, the bond is no longer needed. The
purchaser can demand possession at any time following the consolidation of ownership in his
name and the issuance to him of a new TCT. After consolidation of title in the purchaser’s name
for failure of the mortgagor to redeem the property, the purchaser’s right to possession ripens
into the absolute right of a confirmed owner. At that point, the issuance of a writ of possession,
upon proper application and proof of title, to a purchaser in an extrajudicial foreclosure sale
becomes merely a ministerial function.

NOTES:

The distinction between a ministerial and discretionary act is well delineated. A purely
ministerial act or duty is one which an officer or tribunal performs in a given state of facts, in a
prescribed manner, in obedience to the mandate of a legal authority, without regard to or the
exercise of his own judgment upon the propriety or impropriety of the act done. If the law
imposes a duty upon a public officer and gives him the right to decide how or when the duty
shall be performed, such duty is discretionary and not ministerial. The duty is ministerial only
when the discharge of the same requires neither the exercise of official discretion or judgment.

Until the foreclosure sale of the property in question is annulled by a court of competent
jurisdiction, the issuance of a writ of possession remains the ministerial duty of the trial court.
The same is true with its implementation; otherwise, the writ will be a useless paper judgment —
a result inimical to the mandate of Act No. 3135 to vest possession in the purchaser
immediately
 Maligalig vs. Sandiganbayan, G.R. No. 236293, 10 December 2019

DOCTRINE: Definition of Public Officer under RPC; Serena case was also mentioned wherein
public officer was also defined. (Two definitions of public officer)

FACTS:

On March 29, 2010 in City of Manila, accused PROCESO LAWAS MALIGALIG, a public
officer, being then the President and a member of the Board of Directors of the Bataan
Shipyard and Engineering Co., Inc. (BASECO), a government-owned or –controlled corporation,
falsified and executed the release, waiver and quitclaim in favor of Northstar by making an
untruthful statement wherein he executed a Release, Waiver and Quitclaim to implement the
Resolutions approved by the BASECO Board of Directors in its special board meeting when, in
truth and in fact, said statement is absolutely false because the BASECO Board of Directors
neither approved nor issued such Resolutions, and for which the accused has a legal obligation
to disclose the truth about the absence of such Resolutions, to the damage and prejudice of
BASECO, the Government and the public interest.

On May 26, 2017, petitioner filed before the Sandiganbayan an Alternative Motion to Quash or
to Suspend Proceedings on the ground that the Sandiganbayan has no jurisdiction.

On October 10, 2017, the Sandiganbayan denied petitioner’s Motion to Quash or to suspend
proceedings.

Petitioner contends that the Bataan Shipyard and Engineering Co., Inc. (BASECO) is not a
government owned or controlled corporation. Petitioner posits that since BASECO is a private
corporation under the tutelage of PCGG as conservator and that he was elected to the BOD by
reason of his being a stockholder of the company, he cannot be considered as a public official or
employee within the definition of Section 2(b) of R.A. No.3019, otherwise known as the
Anti-Graft and Corrupt Practices Act. Not being a public official or employee, he asserts that the
Sandiganbayan has no jurisdiction over his person and that, consequently, the Office of the
Ombudsman also has no jurisdiction to conduct preliminary investigation against him.

ISSUE: Whether or not petitioner is a public officer

HELD:

Petitioner’s defense that he was not a public officer at the time of the alleged commission of the
offense does not hold water. It is well-settled that, “jurisdiction is not affected by the pleas or the
theories set up by defendant or respondent in an answer, a motion to dismiss, or a motion to
quash. Otherwise, jurisdiction would become dependent almost entirely upon the whims of
defendant or respondent.” Besides, his admission in his Counter Affidavit filed before the Office
of the Ombudsman that he was appointed as member of the Board of Directors, and eventually
as President of BASECO by former President Gloria Macapagal-Arroyo, militates against his
claim that he was not a public officer.
A public officer is defined in the Revised Penal Code as “any person who, by direct provision
of the law, popular election, or appointment by competent authority, shall take part in the
performance of public functions in the Government of the Philippine 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 class. The concept of a public officer was expounded further in the
Serana case, where it was held that, “An investment in an individual of some portion of the
sovereign functions of the government, to be exercised by him for the benefit of the public
makes one a public officer.” As President of a sequestered company like BASECO, petitioner
is expected to perform functions that would benefit the public in general. Thus, the
Sandiganbayan did not commit grave abuse of discretion in denying petitioner’s Motion to
Quash and Motion for Reconsideration. It definitely has jurisdiction over the case and over the
person of the petitioner since offenses for violation of R.A. No. 3019 and the complex crime of
Malversation of Public Funds through Falsification of Public Document.

Qualifications

Sigue vs. Rayabaya, G.R. No. L-11717, 27 December 1958

Flores vs. Drilon, G.R. No. 104732, 22 June 1993

FLORES vs. DRILON

G.R. No. 104732, June 22, 1993
Bellosillo, J:

DOCTRINE:

The power of choice is the heart of the power to appoint. Appointment involves an exercise
of discretion of whom to appoint. Hence, when Congress clothes the President with the
power to appoint an officer, it cannot at the same time limit the choice of the President to
only one candidate. Such enactment effectively eliminates the discretion of the appointing
power to choose and constitutes an irregular restriction on the power of appointment.

While it may be viewed that the proviso merely sets the qualifications of the officer during the
first year of operations of SBMA, i.e., he must be the Mayor of Olongapo City, it is manifestly an
abuse of congressional authority to prescribe qualifications where only one, and no other, can
qualify. Accordingly, while the conferment of the appointing power on the President is a
perfectly valid legislative act, the proviso limiting his choice to one is certainly an
encroachment on his prerogative.
Since the ineligibility of an elective official for appointment remains all throughout his tenure or
during his incumbency, he may however resign first from his elective post to cast off the
constitutionally-attached disqualification before he may be considered fit for appointment.

Consequently, as long as he is an incumbent, an elective official remains ineligible for

appointment to another public office.

FACTS:

In 1992, Congress enacted Republic Act no. 7227 or the Bases Conversion and Development
Act. Under Section 13, paragraph (d) of the said law, the respondent Mayor of Olongapo City,
Richard J. Gordon, is appointed as Chairman and Chief Executive Officer of the Subic Bay
Metropolitan Authority (SBMA).

The said provision provides the President the power to appoint an administrator of the SBMA
provided that in the first year of its operation, the Olongapo mayor shall be appointed as
Chairman and CEO of the said Authority.

The petitioners, assailing the constitutionality of the said provision, assert that it infringes to the
constitutional provision of Article IX-B, Section 7 of the Constitution, which states that no
elective official shall be eligible for appointment or designation in any capacity to any public
officer or position during his tenure.

The petitioners also contend that Congress encroaches upon the discretionary power of the
President to appoint.

The respondents argue that Section 94 of the Local Government Code permits the appointment
of a local elective official to another post if so allowed by law or by the primary functions of his
office.

ISSUE/S:

(1) Whether the proviso in Section 13, paragraph (d) of R.A. No. 7227 violates the
constitutional proscription against appointment or designation of elective officials to other
posts.
(2) Whether the SMBA post is merely ex officio to the position of Mayor of Olongapo City
and thus an expected circumstance.
(3) Whether there is legislative encroachment on the appointing authority of the President.

RULING:

(1) Yes, the proviso in Section 13, paragraph (d) of R.A. No. 7227 violates the constitutional
proscription against appointment or designation of elective officials to other posts. The
 Court stated that the subject proviso directs the President to appoint an elective official
(the Olongapo mayor in this case) to other government posts (as Chairman of the Board
and Chief Executive Officer of SBMA).Since this is precisely what the constitutional
proscription seeks to prevent: a situation where a local elective official will work for his
appointment in an executive position in government, and neglect his constituents.

The Court also declared the argument of the respondent that Section 94 of the Local
Government Code permitting the appointment of a local elective official to another post if
so allowed by law or by the primary functions of his office as fallacious as it is not
determinative of the constitutionality of Section 13, paragraph (d) of R.A. No. 7227, for
no legislative act can prevail over the fundamental law of the land.

(2) No, SMBA post is not merely an ex officio to the position of Mayor of Olongapo city and
thus, not an expected circumstance. The Court stated that Congress did not contemplate
making the subject SBMA posts as ex officio or automatically attached to the Office of
Mayor of Olongapo city without need of appointment. The phrase “shall be appointed”
unquestionably shows the intent to make SBMA posts appointive and not merely adjunct
to the post of Mayor of Olongapo City.

(3) Yes, there is legislative encroachment on the appointing authority of the President. The
Court stated that although Section 13(d) itself vests in the President the power to appoint
the Chairman of SBMA, he really has no choice but to appoint the Mayor of Olongapo
city. The Court stated that the power of choice is the heart of the power to appoint.
Appointment involves an exercise of discretion of whom to appoint. When Congress
clothes the President to only one candidate, such enactment effectively eliminates the
discretion of the appointing power to choose and constitutes an irregular restriction on
the power of appointment.

While it may be viewed that the proviso merely sets the qualifications of the officer during
the first year of operations of SBMA, it is manifestly an abuse of congressional authority
to prescribe qualifications where only one, and no other, can qualify. Since the ineligibility
of an elective official for appointment remains all throughout his tenure or during his
incumbency, he may however resign first from his elective post to cast off the
constitutionally-attached disqualification before he may be considered fit for
appointment. Consequently, as long as he is incumbent, an elective official remains
ineligible for appointment to another public office.

Lecaroz vs. Sandiganbayan, G.R. No. 130872, 25 March 1999

DOCTRINE: An oath of office is a qualifying requirement for a public office; a prerequisite to the
full investiture with the office. Only when the public officer has satisfied the prerequisite of oath
that his right to enter into the position becomes plenary and complete. And for as long as he has
not qualified, the holdover officer is the rightful occupant.
FACTS
Francisco and Lenlie Lecaroz, father and son were convicted by the Sandiganbayan of 12
counts of estafa through falsification of public documents. They now seek a review of their
conviction as they insist on their innocence.

Francisco was the Mayor of Santa Cruz, Marinduque, while Lenlie was the outgoing chairman
Kabataan Barangay (KB) of Barangay Bagong Silang and is concurrently a member of its
Sangguniang Bayan (SB) representing the Federation of Kabataang Barangays.

In the 1985 elections to the KB, Jowil Red won a s Chairman for Brgy. Matalaba and Lenlie did
not run because he is pass the age limit. In Nov., Red was appointed by Pres. Marcos as
member of SB of Santa Cruz. Imee Marcos-Manotoc, then National Chairperson, sent a
telegram to Red confirming such appointment and advising him further that his appointment
letters will be sent to him in due time. Red received the telegram and showed it to Mayor
Francisco.

When Red finally got his appointment papers, Pres. Aquino was already in power. He sent the
document to the Mayor on April but still Red was not allowed to sit as sectoral representative.
Lenlie continued to be in the seat and received salary. Finally Red was able to secure
appointment papers from the Aquino administration after three years and nine months from the
date he received his appointment paper from Pres. Marcos.

Red filed with the Office of the Ombudsman several criminal complaints against the petitioners
arising from the refusal of the two officials to let him assume the position of KB sectoral
representative. The Ombudsman filed with the Sandiganbayan 13 Informations for estafa
through falsification of public documents against petitioners, and one information for violation of
Sec. 3, par. (e), of RA No. 3019, against the Mayor alone. Sandiganbayan convicted Mayor and
Len on all counts of estafa but acquitted Mayor of RA 3019 charge.

Snadiganbayan ruled that Red’s assumption of the KB presidency upon the expiration of the
term of accused Lenlie was valid since he took his oath of office sometime in 1986 before
Assemblywoman Reyes.

Lenlie ceased to be a member of KB upon the expiration of his term and so was his
membership as SB. Hence, the cast of Francisco in entering is son’s name in payroll and
Lenlie’s act of accepting his salaries constitution conspiracy.

Francisco is acquitted of the RA 30189 violation because Red was neither authorized to sit as
member of the SB because he was not properly appointed thereto nor had he shown to the
mayor sufficient basis for his alleged right to a seat in the municipal council.

ISSUES
1. Whether Red validly assumed office upon taking his oath in 1985 (NO)
 2. Whether Lenlie validly held office in a hold-over capacity (YES)

RULING
1. Red’s oath in 1985 was invalid for being administered by a person without authority to
administer oath.

As a rule, under Sec. 21, Art. VI of Administrative Code then in force, members of the then
Batasang Pambansa were not authorized to administer oaths. It was only after the approval of
RA No. 6733 on 25 July 1989 and its subsequent publication in a newspaper of general
circulation that members of Congress were vested for the first time with the general authority to
administer oaths.

Red’s oath of office before Assemblywoman Reyes in 1985, a person who had no authority to
administer oaths, was invalid and amounted to no oath at all.
An oath of office is a qualifying requirement for a public office; a prerequisite to the full
investiture with the office. Only when the public officer has satisfied the prerequisite of oath that
his right to enter into the position becomes plenary and complete. And for as long as he has not
qualified, the holdover officer is the rightful occupant.

2. Law usually provides that officers elected or appointed for a fixed term shall remain in
office not only for that term but until their successors have been elected and qualified.

Where there’s a hold-over provision, the office does not become vacant upon the expiration of
the term if there is no successor elected and qualified to assume it, but the present incumbent
will carry over until his successor is elected and qualified, even though it be beyond the term
fixed by law.

However, if the law does not so provide, absent an express or implied constitutional or statutory
provision to the contrary, hold-over principle is presumed to apply. This is because the law
abhors a vacuum in public offices, and courts generally indulge in the strong presumption
against a legislative intent to create, by statute, a condition which may result in an executive or
administrative office becoming, for any period of time, wholly vacant or unoccupied by one
lawfully authorized to exercise its functions.

In this case, although BP Blg. 51 does not say that a Sanggunian member can continue to
occupy his post after the expiration of his term in case his successor fails to qualify, it does not
also say that he is proscribed from holding over.

Since Red never qualified for the post, Len remained KB representative to the SB, albeit in a
carry over capacity, and was in every aspect a de jure officer, or at least a de facto officer
entitled to receive the salaries and all the emoluments appertaining to the position. As such, he
could not be considered an intruder and liable for encroachment of public office.
 Parreño vs. COA, G.R. No. 162224, 7 June 2004
2nd LT. Salvador Parreño vs. Commision on Audit
G.R. No. 162224 June 7, 2007
DOCTRINE:

● A retiree who had lost his Filipino citizenship already renounced his allegiance to the
state. Thus, he may no longer be compelled by the state to render compulsory military
service when the need arises. Petitioner’s loss of Filipino citizenship constitutes a
substantial distinction that distinguishes him from other retirees who retain their Filipino
citizenship.
● Reacquisition of Filipino citizenship will entitle former Filipino citizens to the benefits and
privileges of Filipino citizenship, reckoned from the time of his reacquisition of Filipino
citizenship.
● A money claim is "a demand for payment of a sum of money, reimbursement or
compensation arising from law or contract due from or owing to a government agency."
Under Commonwealth Act No. 327, as amended by Presidential Decree No. 1445, money
claims against the government shall be filed before the COA.

● The jurisdiction of the COA over money claims against the government does not include
the power to rule on the constitutionality or validity of laws. The 1987 Constitution vests
the power of judicial review or the power to declare unconstitutional a law, treaty,
international or executive agreement, presidential decree, order, instruction, ordinance,
or regulation in this Court and in all Regional Trial Courts.

FACTS:
● Salvador Parreño (Parreño) served in the Armed Forces of the Philippines (AFP) for 32
years and retired from the Philippine Constabulary with the rank of 2nd Lieutenant.
● Petitioner availed, and received payment, of a lump sum pension equivalent to three
years pay. In 1985, petitioner started receiving his monthly pension amounting to
₱13,680.
● In 2001, AFP stopped the petitioner’s pension pursuant to Sec. 27 of P.D. 1638, as
amended by P.D. 1650. Said P.D. provides that a retiree who loses his Filipino
citizenship shall be removed from the retired list and his retirement benefits terminated
upon loss of Filipino citizenship.
● Petitioner filed a claim before the COA for the continuance of his monthly pension.
● COA denied such claim for lack of jurisdiction because the issue at hand hinges upon
the validity of Section 27 of P.D. No. 1638, as amended.

ISSUES:

1. Whether Section 27 of PD 1638, as amended, is constitutional;

2. Whether the COA has jurisdiction to rule on the constitutionality of Section 27 of PD
1638, as amended;
 3. Whether PD 1638, as amended, has retroactive or prospective effect.

RULING:

1. ​YES. As to the contention of the OSG and the petitioner that Section 27 of PD 1638, as
amended, is unconstitutional and that the obligation imposed on petitioner to retain his
Filipino citizenship as a condition for him to remain in the AFP retired list is contrary to
public policy and welfare, oppressive, discriminatory, violative of the due process clause
of the Constitution and discriminates against AFP retirees who have changed their
nationality. The court said that the proviso has complied with the conditions to a
reasonable classification (a) must be based on substantial distinctions which make real
differences; (b) must be germane to the purpose of the law; (c) must not be limited to
existing conditions only; and (d) must apply equally to each member of the class. There
is a substantial difference between retirees who are citizens of the Philippines and
retirees who lost their Filipino citizenship by naturalization in another country,
such as petitioner.

The constitutional right of the state to require all citizens to render personal and military
service necessarily includes not only private citizens but also citizens who have retired
from military service. A retiree who had lost his Filipino citizenship already renounced his
allegiance to the state. Thus, he may no longer be compelled by the state to render
compulsory military service when the need arises. Petitioner’s loss of Filipino
citizenship constitutes a substantial distinction that distinguishes him from other
retirees who retain their Filipino citizenship. If the groupings are characterized by
substantial distinctions that make real differences, one class may be treated and
regulated differently from another

There was no denial of due process in this case. When the petitioner lost his Filipino
citizenship, the AFP had no choice but to stop his monthly pension in accordance with
Section 27 of PD 1638, as amended. Moreover petitioner has other recourse if he
desires to continue receiving his monthly pension. Petitioner will be entitled to receive
his monthly pension should he reacquire his Filipino citizenship since he will
again be entitled to the benefits and privileges of Filipino citizenship reckoned
from the time of his reacquisition of Filipino citizenship.

2. NO. Although the petitioner filed a money claim which should be filed before COA, the
jurisdiction of the COA over money claims against the government does not include the
power to rule on the constitutionality or validity of laws. The 1987 Constitution vests the
power of judicial review or the power to declare unconstitutional a law, treaty,
international or executive agreement, presidential decree, order, instruction, ordinance,
or regulation in this Court and in all Regional Trial Courts.
 Petitioner’s money claim essentially involved the constitutionality of Section 27 of PD
1638, as amended. Hence, the COA did not commit grave abuse of discretion in
dismissing petitioner’s money claim.

3. PROSPECTIVE. The OSG argues that PD 1638, as amended, should apply only to
those who joined the military service after its effectivity. The court does not agree with
the interpretation of the OSG that PD 1638. Since PD 1638, as amended, is about the
new system of retirement and separation from service of military personnel, it should
apply to those who were in the service at the time of its approval.
PD 1638, as amended, was signed on 10 September 1979. Petitioner retired in 1982,
long after the approval of PD 1638, as amended. Hence, the provisions of PD 1638, as
amended, apply to petitioner.

Jardeleza vs. Sereno, G.R. No. 213181, 19 August 2014

FRANCIS H. JARDELEZA vs. CHIEF JUSTICE MARIA LOURDES P. A. SERENO

G.R. No. 213181 August 19,2014

FACTS:

● Prior the Retirement of Associate Justice Roberto Abad (Associate Justice Abad) the
Judicial and Bar Council (JBC) announce an opening for application and
recommendation for the impending vacancy of said position.
● JBC received a letter from Dean Danilo Concepcion of the University of the Philippines
nominating petitioner Francis H. Jardeleza (Jardeleza), incumbent Solicitor General of
the Republic, for the said position. Jardeleza was accepted and included in the
candidates as well as in the schedule of public interviews.
● Jardeleza received a telephone call from Justice Lagman, who informed him that during
one of the meetings Chief Justice Sereno manifested that she would be invoking Section
2, Rule 10 of JBC-009 or the UNANIMITY RULE against him. Jardeleza was then
directed to "make himself available" before the JBC, during which he would be informed
of the objections to his integrity.
 ● During the meeting of the JBC, sans Jardeleza, incumbent Associate Justice Carpio
appeared as a resource person to shed light on a classified legal memorandum (legal
memorandum) that would clarify the objection to Jardeleza’s integrity as posed by Chief
Justice Sereno. According to the JBC, Chief Justice Sereno questioned Jardeleza’s
ability to discharge the duties of his office as shown in a confidential legal memorandum
over his handling of an international arbitration case for the government.
● After the briefing, Jardeleza alleged that he was asked by chief justice Sereno if he
wanted to defend himself against the allegations involving his integrity. He answered that
he would defend himself provided that due process would be observed and demanded
that Chief Justice Sereno execute a sworn statement specifying her objections and that
he be afforded the right to cross-examine her in a public hearing. He requested that the
same directive should also be imposed on Associate Justice Carpio.
● Jardeleza’s request was denied and the JBC released the shortlisted nominees where
Jardeleza was not included.
● Jardeleza filed for certiorari and mandamus with prayer for TRO to compel the JBC to
include him in the list on the grounds that the JBC and CJ Sereno acted with grave
abuse of discretion in excluding him, despite having garnered a sufficient number of
votes to qualify for the position.

ISSUE:

Whether the right to due process is available in the course of JBC proceedings in cases where
an objection or opposition to an application is raised.

RULING: PETITION GRANTED

YES. The fact that JBC proceeding is sui generis and is impressed with discretion, however,
does not automatically denigrate an applicant’s entitlement to due process. Notwithstanding
being "a class of its own," the right to be heard and to explain one’s self is availing. The Court
subscribes to the view that in cases where an objection to an applicant’s qualifications is raised,
the observance of due process neither negates nor renders illusory the fulfillment of the duty of
JBC to recommend. This holding is not an encroachment on its discretion in the nomination
process. Actually, its adherence to the precepts of due process supports and enriches the
exercise of its discretion. When an applicant, who vehemently denies the truth of the objections,
is afforded the chance to protest, the JBC is presented with a clearer understanding of the
situation it faces, thereby guarding the body from making an unsound and capricious
assessment of information brought before it. The JBC is not expected to strictly apply the rules
of evidence in its assessment of an objection against an applicant. Just the same, to hear the
side of the person challenged complies with the dictates of fairness for the only test that an
exercise of discretion must surmount is that of soundness.
The Court is compelled to rule that Jardeleza should have been included in the shortlist
submitted to the President for the vacated position of Associate Justice Abad. This
consequence arose not from the unconstitutionality of Section 2, Rule 10 of JBC-009, per se,
but from the violation by the JBC of its own rules of procedure and the basic tenets of due
process.

True, Jardeleza has no vested right to a nomination, but this does not prescind from the fact that
the JBC failed to observe the minimum requirements of due process.

ADDITIONAL DETAILS:

JARDELEZA’S POSITION

● Chief Justice Sereno and the JBC violated Jardeleza’s right to due process in
the events leading up to and during the vote on the shortlist.
● Chief Justice Sereno did not inform him of the nature and cause of the
accusations against him and subsequently, did not give him the opportunity to be
heard.
● JBC simply ordered to make himself available on the meeting and was told
that the objections to his integrity would be made known to him on the same
day.
● The JBC committed grave abuse of discretion in excluding Jardeleza from the
shortlist of nominees, in violation of its own rules.
● The "unanimity requirement" does not find application when a member of the
JBC raises an objection to an applicant’s integrity.
● Having secured the sufficient number of votes, it was ministerial on the part of
the JBC to include Jardeleza in the subject shortlist.
● The unlawful exclusion of the petitioner from the subject shortlist impairs the
President’s constitutional power to appoint.

COMMENTS OF THE JBC:

● Certiorari is only available against a tribunal, a board or an officer exercising
judicial or quasi-judicial functions.
● The remedy of mandamus is incorrect.
● The JBC mainly denied that Jardeleza was deprived of due process.
● Justice Lagman and Secretary De Lima informed him about the content of the
impending objection against his application.
● His request for a sworn statement and opportunity to cross-examine is not
supported by a demandable right. The JBC is not a fact-finding body.
● As a general rule, an applicant is included in the shortlist when he or she obtains an
affirmative vote of at least a majority of all the members of the JBC.
● When the unanimity requirement, however, is invoked because an applicant’s integrity is
challenged, a unanimous vote is required.
 ● Thus, when Chief Justice Sereno invoked the said provision, Jardeleza needed the
affirmative vote of all the JBC members to be included in the shortlist. In the process,
Chief Justice Sereno’s vote against Jardeleza was not counted.
● Jardeleza sued the respondents in his capacity as Solicitor General. In effect, he
sued the respondents to pursue a purely private interest while retaining the office of
the Solicitor General which is in clear violation of the Code of Professional
Responsibility and Code of Professional Ethics.

Commencement of Official Relationship

Garces vs. Court of Appeals

G.R. No. 114795 | 17 July 1996 | Francisco, J.

DOCTRINE:
A transfer requires a prior appointment; if the transfer is made without the consent of the
official concerned, it is tantamount to removal without valid cause contrary to the fundamental
guarantee on non-removal except for cause. Acceptance is indispensable to complete an
appointment. There can be no appointment to a non-vacant position.

FACTS:
Garces was appointed as the Election Registrar of Gutalac, Zamboanga del Norte. She was to
replace respondent Election Registrar Concepcion who, in turn was transferred to Liloy,
Zamboanga del Norte. Concepcion refused to transfer as he did not request for it. Garces, on
the other hand, was directed to assume the Gutalac post. However, she was prohibited to do so
because the position is not vacant.

Garces filed a petition against Empeynado and Concepcion in the RTC. COMELEC resolved to
recognize Concepcion as the Election Registrar of Gutalac, and ordered that the appointments
of Garces to Gutalac and of Concepcion to Liloy be cancelled. RTC dismissed the petition. CA
affirmed.

ISSUE:
Whether or not the petitioner’s action for mandamus proper.

RULING:
NO. Mandamus only applies where the petitioner’s right is founded clearly in law and not when it
is doubtful. Garces claims that she has a clear legal right to the Gutalac post which was deemed
vacated at the time of her appointment and qualification. However, Concepcion did not vacate
his Gutalac post as he did not accept the transfer to Liloy.

A transfer requires a prior appointment. If the transfer is made without the consent of the official
concerned, it is tantamount to removal without valid cause contrary to the fundamental
guarantee on non-removal except for cause. Concepcion’s transfer was without effect because
he did not accept it. Acceptance, it must be emphasized, is indispensable to complete an
appointment.

It must then be understood that Concepcion’s post in Gutalac never became vacant. There can
be no appointment to a non-vacant position. The incumbent must first be legally removed, or
his appointment validly terminated before one could validly be installed to succeed him.

NOTES:
● 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.
● Demotion, under Section 11, Rule VII of the Omnibus Rules Implementing Book V of
E.O. 292 is defined as the movement from one position to another involving the
issuance of an appointment with diminution in duties, responsibilities, status or
rank which may or may not involve reduction in salary. Involves the issuance of an
appointment.
● Reassignment, under Section 10 of the same rule is defined as the movement of an
employee from one organizational unit to another in the same department or agency
which does not involve a reduction in rank, status, or salary and does not require the
issuance of an appointment.

Bermudez vs. Executive Secretary, G.R. No. 131429, 4 August 1999

Doctrine: The recommendation to the President from a Cabinet member whom to appoint is
merely an endorsement – not binding to the President.

FACTS: The position of the Provincial Prosecutor of Tarlac became vacant. Petitioner
Bermudez, was recommended by the Secretary of Justice to be the Provincial Prosecutor of
Tarlac. On the other hand, Quiaoit was recommended by Representative Yap. Quiaoit was
appointed by the President, took his oath of office, assumed office and performed the functions
of the Provincial Prosecutor. Bermudez challenged the appointment of Quiaoit primarily on the
ground that his appointment lacks the recommendation of the Secretary of Justice as prescribed
under the Revised Administrative Code. Bermudez contends that the recommendation of the
Secretary of Justice is essential or mandatory for the appointing power to consider in making
the appointment.

The disputed provision of the Revised Administrative Code reads:

Book IV, Title III, Chapter II, Section 9: “All provincial and city prosecutors and their assistants
shall be appointed by the President upon the recommendation of the Secretary.”

ISSUE: Whether the recommendation of the DOJ Secretary is absolutely essential to the
appointment of a Provincial Prosecutor, that it is Bermudez that must be appointed not Quiaoit.

HELD: The court held in the negative. The phrase "upon recommendation of the Secretary,"
cited in the Revised Administrative Code, should be interpreted, as it is normally so understood,
to be a mere advice, exhortation or endorsement, which is essentially persuasive in character
and not binding or obligatory upon the party to whom it is made. The recommendation here is
nothing really more than advisory in nature. The President, being the head of the Executive
Department, could very well disregard or do away with the action of the departments, bureaus
or offices even in the exercise of discretionary authority, and in so opting, he cannot be said as
having acted beyond the scope of his authority.

The right of choice is the heart of the power to appoint. In the exercise of the power of
appointment, discretion is an integral part thereof. When the Constitution or the law clothes the
President with the power to appoint a subordinate officer, such conferment must be understood
as necessarily carrying with it an ample discretion of whom to appoint.

The power to appoint is, in essence, discretionary. The appointing power has the right of choice
which he may exercise freely according to his judgment, deciding for himself who is best
qualified among those who have the necessary qualifications and eligibility.

Appointment

Binamira vs. Garrucho, G.R. No. 92008, 30 July 1990

DOCTRINE:
Appointment is the selection, by the authority vested with the power, of an individual who is to
exercise the functions of a given office. When completed, usually with its confirmation, the
appointment results in security of tenure for the person chosen unless he is replaceable at
pleasure because of the nature of his office.

Designation, on the other hand, connotes merely the imposition by law of additional duties on
an incumbent official, as where, in the case before us, the Secretary of Tourism is designated
Chairman of the Board of Directors of the Philippine Tourism Authority, or where, under the
Constitution, three Justices of the Supreme Court are designated by the Chief Justice to sit in
the Electoral Tribunal of the Senate or the House of Representatives. It is said that appointment
is essentially executive while designation is legislative in nature.
FACTS:
Petitioner Ramon P. Binamira seeks reinstatement to the office of General Manager of the
Philippine Tourism Authority from which he claims to have been removed without just cause in
violation of his security of tenure.

Binamira claims that since assuming office, he had discharged the duties of PTA General
Manager and Vice-Chairman of its Board of Directors and had been acknowledged as such by
various government offices, including the Office of the President.

He complains, though, that on January 2, 1990, his resignation was demanded by respondent
Garrucho as the new Secretary of Tourism. Binamira’s demurrer led to an unpleasant exchange
that led to his filing of a complaint against the Secretary with the Commission on Human Rights.

Section 23-A of P.D. 564, which created the Philippine Tourism Authority, provides as follows:

SECTION 23-A. General Manager-Appointment and Tenure. — The General Manager

shall be appointed by the President of the Philippines and shall serve for a term of six (6)
years unless sooner removed for cause; Provided, That upon the expiration of his term,
he shall serve as such until his successor shall have been appointed and qualified. (As
amended by P.D. 1400)

ISSUE:
Whether or not petitioner Ramon P. Binamira was appointed by the President of the Republic.

RULING:
No, petitioner Ramon P. Binamira was not appointed by the President of the Republic but only
designated by the Minister of Tourism.

Appointment may be defined as the selection, by the authority vested with the power, of an
individual who is to exercise the functions of a given office. When completed, usually with its
confirmation, the appointment results in security of tenure for the person chosen unless he is
replaceable at pleasure because of the nature of his office.

Designation, on the other hand, connotes merely the imposition by law of additional duties on an
incumbent official, as where, in the case before us, the Secretary of Tourism is designated
Chairman of the Board of Directors of the Philippine Tourism Authority, or where, under the
Constitution, three Justices of the Supreme Court are designated by the Chief Justice to sit in
the Electoral Tribunal of the Senate or the House of Representatives. It is said that appointment
is essentially executive while designation is legislative in nature.

Designation may also be loosely defined as an appointment because it likewise involves the
naming of a particular person to a specified public office. That is the common understanding of
the term. However, where the person is merely designated and not appointed, the implication is
that he shall hold the office only in a temporary capacity and may be replaced at will by the
appointing authority. In this sense, the designation is considered only an acting or temporary
appointment, which does not confer security of tenure on the person named.

Even if so understood, that is, as an appointment, the designation of the petitioner cannot
sustain his claim that he has been illegally removed. The reason is that the decree clearly
provides that the appointment of the General Manager of the Philippine Tourism Authority shall
be made by the President of the Philippines, not by any other officer. Appointment involves the
exercise of discretion, which because of its nature cannot be delegated. Legally speaking, it was
not possible for Minister Gonzales to assume the exercise of that discretion as an alter ego of
the President. The appointment (or designation) of the petitioner was not a merely mechanical
or ministerial act that could be validly performed by a subordinate even if he happened as in this
case to be a member of the Cabinet.

Moreover, the argument that the designation made by Minister Gonzales was approved by
President Aquino through her approval of the composition of the Board of Directors of the PTA is
not persuasive. It must be remembered that Binamira was included therein as ViceChairman
only because of his designation as PTA General Manager by Minister Gonzales. Such
designation being merely provisional, it could be recalled at will, as in fact it was recalled by the
President herself, through the memorandum she addressed to Secretary Garrucho on January
4, 1990.

Furthermore, designation being an unlawful encroachment on a presidential prerogative, he did

not acquire valid title thereunder to the position in question. Even if it be assumed that it could
be and was authorized, the designation signified merely a temporary or acting appointment that
could be legally withdrawn at pleasure, as in fact it was (albeit for a different reason). In either
case, the petitioner's claim of security of tenure must be rejected.

Jocom vs. Regalado, G.R. No. 77373, 22 August 1991

DOCTRINE:

- The career service is characterized by:

- (1) entrance based on merit and fitness to be determined as far as practicable by
competitive examinations, or based on highly technical qualifications;
- (2) opportunity for advancement to higher career positions; and
- (3) security of tenure;
- while a non-career position is characterized by
- (1) entrance on bases other than those of the usual tests of merit and fitness
utilized for the career service; and
- (2) tenure which is limited to a period specified by law, or which is co-terminous
with that of the appointing authority or subject to his pleasure,
- or limited to the duration of a particular project for which purpose
employment was extended
FACTS: The Bicol River Basin Development Program is the program being overseen by the
Bicol River Basin Council as established by PD 412. PD 926 modified the structure of the
council by placing it under the supervision of a committee under NEDA. Later, PD 1378 created
the Nat. Council on Integrated Area Development (NACLAD) with the President as Chairman.

After the February 1986 revolution, Vice President Laurel was appointed Chairman of
the Nat. Council on Integrated Area Development. VP Laurel appointed private respondent
Jessie Robredo to the position of Program Director. On the same day, Pres. Aquino declared
Art. 11 of the 1973 Constitution to be superseded by Art. 1 of Proc. No. 3.

In January 1987, VP Laurel appointed petitioner Jocom to the position of Project Director
of BRBDP. Respondent Robredo was informed of his termination without stating any grounds for
his dismissal. Petitioner attempted to assume his office but respondent prevented petitioner
from assuming such by barricading the building of BRBDP.

A petition for injunction was issued against petitioner to desist from assuming his office.
Petitioner moved to raffle the case and the trial court later decided against the former as a
prohibition against the issuance of an injunction and/or restraining order is not applicable to an
appointee under the Freedom constitution. Thus, this petition.

ISSUE: W/N Jocom may be removed from his appointive office.

RULING: At the time of petitioner's appointment, Vice-President Laurel had already ceased to
be Chairman of NACIAD. His appointment of herein petitioner to the position of Program/Project
Director and the removal of private respondent from said position, were in the exercise of power
that already belonged to the President. Hence, such appointment and removal were null and
void, and petitioner cannot claim to have had a valid right to the position of
Program/Project Director of BRBDP.

But, even assuming that Vice-President Laurel still had the power to appoint herein
petitioner as Program/Project Director of BRBDP, private respondent could not be
removed from said position, without just cause. There was thus no vacancy in the office
justifying the appointment thereto of petitioner Jocom.

With regard to the tenure of the appointee to the position of Program Project Director, PD
926 is silent on the matter. However, in the Revised Charter of NACIAD, 21 the Council is given
the authority to establish ad hoc support staff as may be necessary for particular integrated area
development projects to be headed by a "Project Director," which shall exist only for the duration
of said projects. The Council is likewise given the power to re-organize or abolish project
support staff under its supervision and Control.

From the foregoing provisions of law, it would appear that the position of Program
Project Director falls under the classification of a non-career position where the tenure of
the appointee is subject to the duration of the project, while entrance to the position is
based on the fact that the appointee possess all the qualifications required by law for the
position. However, despite the classification of the position of Program Project Director as a
non-career position, the appointee was nonetheless protected by the rules on security of
tenure, and could not be removed from office at the whim and caprice of the appointing
authorities without just cause and without observing the rules on due process. The
termination of private respondent from the office of Program/Project Director failed to state the
ground of such removal from office, thus, his removal from office was without just cause.

Sec. 4 of Exec. Order No. 17, 22 which prohibits the issuance of any restraining order or
writ of preliminary injunction to enjoin the separation replacement of any official or employee in
the government service, is intended to prevent delay in the government reorganization process
provided under the Freedom Constitution. However, such ban cannot apply in the case at
bar because petitioner Jocom's appointment was not made pursuant to a valid
reorganization. At the time of his appointment, Vice- President Laurel was no longer the
Chairman of NACIAD and had lost the power to appoint the Program Project Director, or even
reorganize the BRBDP.

Chua vs. CSC, G.R. No. 88979, 7 February 1992

DOCTRINE: The appointment status of government employees in the career service is

classified as follows: 1. permanent — one issued to a person who has met the requirements of
the position to which appointment is made, in accordance with the provisions of the Civil Service
Act and the Rules and Standards promulgated in pursuance thereof; 2. temporary — In the
absence of appropriate eligibles and it becomes necessary in the public interest to fill a vacancy,
a temporary appointment shall be issued to a person who meets all the requirements for the
position to which he is being appointed except the appropriate civil service eligibility: Provided,
That such temporary appointment shall not exceed twelve months, but the appointee may be
replaced sooner if a qualified civil service eligible becomes available.

FACTS: Pursuant to the policy of streamlining and trimming the bureaucracy, RA 6683 provides
for benefits for early retirement and voluntary separation from the government service as well as
for involuntary separation due to reorganization. Petitioner Lydia Chua believing that she is
qualified to avail of the benefits of the program, filed an application with respondent NIA which,
however, denied the same; instead, she was offered separation benefits. A recourse by
petitioner to the CSC yielded negative results.

The CSC denied the plea of reconsideration. The provision of Joint DBM-CSC Circular Letter
does not only require an applicant to have two years of satisfactory service on the date of
separation/retirement but further requires said applicant to be on a casual, emergency,
temporary or regular employment status as of December 2, 1988, the date of enactment of R.A.
6683. The law does not contemplate contractual employees in the coverage.

ISSUES: Whether or not the petitioner is is entitled to the benefits granted under Republic Act
No. 6683

RULING: Let this case be remanded to the CSC-NIA for a favorable disposition of petitioner's
application for early retirement benefits.
Republic Act No. 6683 seeks to cover and benefits regular, temporary, casual and emergency
employees who have rendered at least a total oftwo (2) consecutive years of government
service.

All are tenurial employees with no fixed term, non-career, and temporary. The CSC letter of
denial characterized herein petitioner's employment as coterminous with the NIA project which
in turn was contractual in nature. The OSG says petitioner's status is co-terminous with the
Project. CSC Memorandum Circular characterizes the status of a co-terminous employee.

A co-terminous employee is a non-career civil servant, like casual and emergency employees.
We see no solid reason why the latter are extended benefits under the Early Retirement Law but
the former are not. It will be noted that RA 6683 expressly extends its benefits for early
retirement to regular, temporary, casual and emergency employees. But specifically excluded
from the benefits are uniformed personnel of the AFP including those of the PC-INP. It can be
argued that, expressio unius est exclusio alterius.

Petitioner Lydia Chua was hired and re-hired in four (4) successive projects during a span of
fifteen (15) years. Although no proof of the existence of a work pool can be assumed, her
service record cannot be disregarded.

Applying the criteria set forth above, the Early Retirement Law would violate the equal
protection clause were we to sustain respondents' submission that the benefits of said law are
to be denied a class of government employees who are similarly situated as those covered by
said law.

The denial by the respondents NIA and CSC of petitioner's application for early retirement
benefits under Rep. Act No. 6683 is unreasonable, unjustified, and oppressive, as petitioner had
filed an application for voluntary retirement within a reasonable period and she is entitled to the
benefits of said law. While the application was filed after expiration of her term, we can give
allowance for the fact that she originally filed the application on her own without the assistance
of counsel. In the interest of substantial justice, her application must be granted.

Ignacio vs. CSC, G.R. No. 163573, 27 July 2005

DOCTRINE: The petitioner was a member of the CES with a rank of CESO V; as such, her
security of tenure pertains only to her rank and not to her office or her position. The security of
tenure of employees in the career executive service (except first and second-level employees in
the civil service), pertains only to rank and not to the office or to the position to which they may
be appointed. Thus, a CESO may be transferred or reassigned from one position to another
without losing his rank which follows him wherever he is transferred or reassigned. In fact, a
CESO suffers no diminution of salary even if assigned to a CES position with lower salary
grade, as the compensation is according to CES rank and not on the basis of the position or
office occupied.
FACTS: Petitioner Dr. Leonora B. Ignacio was the Division Superintendent of Public Schools.
The Secretary of the Department of Education, Culture and Sports (DECS), through former
Undersecretary Ramon C. Bacani, issued an Order reassigning her to the Division of Schools in
Puerto Princesa City effective immediately. Regional Director Paraluman R. Giron forwarded the
reassignment letter to Dr. Ignacio through a Letter. However, on May 10, 2002, Undersecretary
Bacani issued a Memorandum to Regional Director Giron directing her to hold Dr. Ignacio's
reassignment in abeyance until further orders from his office. Dr. Giron then informed Dr. Ignacio
of Undersecretary Bacani's directive via a Letter. However, the next day, May 14, 2002,
Undersecretary Bacani again wrote to Dr. Giron, reiterating Dr. Ignacio's reassignment as
Superintendent of the Division of Public Schools of Puerto Princesa City with Dr. Alma Bella O.
Bautista as the designated Schools Division Superintendent of Cavite City. In a Letter dated
May 21, 2002, Dr. Giron informed Dr. Ignacio of Undersecretary Bacani's directive and enjoined
her to comply therewith. Instead of complying with the directive, however, Dr. Ignacio filed a
petition for its nullification with the Regional Office of the Civil Service Commission (CSC).
Considering that the petitioner was a presidential appointee, the petition was transmitted to the
CSC for resolution. The petitioner alleged that her reassignment to Puerto Princesa City was
arbitrary, oppressive and contrary to law. Being a presidential appointee with Career Executive
Service (CES) Rank V eligibility, only the President, through the DECS Secretary, could
reappoint her, and such authority could not be delegated to an Undersecretary. She further
alleged that her reassignment was a demotion.

ISSUE: Whether or not the petitioner enjoys security of tenure as Division Superintendent of
Public Schools.

RULING: No. The petitioner was a member of the CES with a rank of CESO V; as such, her
security of tenure pertains only to her rank and not to her office or her position. The security of
tenure of employees in the career executive service (except first and second-level employees in
the civil service), pertains only to rank and not to the office or to the position to which they may
be appointed. Thus, a CESO may be transferred or reassigned from one position to another
without losing his rank which follows him wherever he is transferred or reassigned. In fact, a
CESO suffers no diminution of salary even if assigned to a CES position with lower salary
grade, as the compensation is according to CES rank and not on the basis of the position or
office occupied.

'Within the Career Executive Service, personnel can be shifted from one office or position to
another without violation of their right to security of tenure because their status and salaries are
based on their ranks and not on their jobs.

Mobility and flexibility in the assignment of personnel, the better to cope with the exigencies of
public service, is thus the distinguishing feature of the Career Executive Service.

Sales vs. Carreon, G.R. No. 160791, 13 February 2007

DOCTRINE:
 ● Not all “midnight” appointments are invalid. Each appointment must be judged on the
basis of the nature, character, and merits of the individual appointment and the
circumstances surrounding the same. It is only when the appointments were made en
masse by the outgoing administration and shown to have been made through hurried
maneuvers and under circumstances departing from good faith, morality, and propriety
that the SC has struck down “midnight” appointments.
● RA 7041 provides, among others, that vacant positions shall not be filled until after
publication of a complete list of all existing vacant positions and that the CSC shall not
act on any appointment to fill up a vacant position unless the same has been reported to
and published by the Commission.
● The CSC has the authority to recall appointments made in disregard of the applicable
provisions of Civil Service Law and regulations. (Section 20, Rule VI of the Omnibus
Rules Implementing Book V-A of the Admin Code)

FACTS:
During the May 2001 elections, then Mayor Ruiz of Dapitan City, running for re-election, was
defeated by respondent Carreon, Jr.. In his last month in office, Mayor Ruiz issued 83
appointments, including those of herein petitioners. However, newly elected Mayor Carreon Jr.
issued Memorandum Orders Nos. 1 and 2 revoking the appointments signed by his predecessor
on the ground that the latter violated Civil Service Commission (CSC) Resolution in relation to
CSC Memorandum Circular which imposed a ban on issuing appointments in the civil service
during the election period.

Thereafter, Sales, one of the petitioners of the case, wrote the CSC Regional Office requesting
its ruling on the matter. On the other hand, respondent contended that the questioned
appointments were not only "issued in bulk" but that there was no urgent need to fill those
positions.

ISSUE: W/N petitioner’s appointments were valid (NO)

RULING:
“Midnight” appointments are invalid because it causes animosities between the outgoing and
the incoming official and also affects efficiency in local governance. However, not all “midnight”
appointments are invalid. Each appointment must be judged on the basis of the nature,
character, and merits of the individual appointment and the circumstances surrounding the
same. It is only when the appointments were made en masse by the outgoing administration
and shown to have been made through hurried maneuvers and under circumstances departing
from good faith, morality, and propriety that the Supreme Court has struck down “midnight”
appointments.

Moreover, RA 7041 requires the CSC to publish the lists of vacant positions and such
publication shall be posted by the chief personnel or administrative officer of all local
government units in the designated places. The vacant positions may only be filled by the
appointing authority after they have been reported to the CSC as vacant and only after
publication.

The case at bar is an example of the practice of outgoing local chief executives to issue
"midnight" appointments, especially after their successors have been proclaimed. Further, since
the publication of vacancies was made even before the positions involved actually became
vacant then the respondent's action violated Section 2 of RA 7041.

Lastly, CSC has the authority to recall appointments made in disregard of the applicable
provisions of Civil Service Law and regulations. Section 20, Rule VI of the Omnibus Rules
Implementing Book V-A of the Administrative Code provides that “notwithstanding the initial
approval of an appointment, the same may be recalled on any of the following grounds: a)
non-compliance with the procedures/criteria provided in the agency’s Merit Promotion Plan; b)
failure to pass through the agency’s Selection/Promotion Board; c) violation of the existing
collective bargaining agreement between management and employees relative to promotion; or
d) violation of other existing civil service laws, rules and regulations.”

Here, in deliberating and recommending to former Mayor Ruiz the appointments of the
petitioners to the vacant positions sans the required representation, the Board violated the
above CSC Rules. Hence, the appointments he issued are not valid; thus, such appointments
may be recalled.

OTHER NOTES:
● It’s the duty of all Chief Personnel or Administrative Officers to post in 3 conspicuous
places of their offices for a period of 10 days a complete list of all existing vacant
positions in their respective offices which are authorized to be filled, and to transmit a
copy of such list and the corresponding qualification standards to the CSC not later than
the tenth day of every month.
● Vacant positions shall not be filled until after publication:
○ Provided, that vacant and unfilled positions that are: a) primarily confidential; b)
policy-determining; c) highly technical; d) co-terminous with that of the appointing
authority; or e) limited to the duration of a particular project, shall be excluded
from the list required by law
● The Chairman and members of the CSC shall publish once every quarter a complete list
of all the existing vacant positions in the Government throughout the country, including
the qualification standards required for each position and, thereafter, certify under oath
to the completion of publication.
○ Copies of such publication shall be sold at cost to the public and distributed free
of charge to the various personnel office of the government where they shall be
available for inspection by the public:
■ Provided, that said publication shall be posted by the Chief Personnel or
Administrative Officer of all local government units in at least 3 public and
conspicuous places in their respective municipalities and provinces:
 ■ Provided, further, that any vacant position published shall be open to any
qualified person who does not necessarily belong to the same office with
the vacancy or who occupies a position next-inrank to the vacancy:
■ Provided, finally, that the CSC shall not act on any appointment to fill up a
vacant position unless the same has been reported to and published by
the Commission

6. OMBUDSMAN VS. CIVIL SERVICE COMMISSION

G.R. No. 162215, July 30, 2007

Facts:

Ombudsman Simeon V. Marcelo wrote a letter dated July 28, 2003 to the Civil Service
Commission (CSC), requesting the approval of the amendment of qualification standards for
Director II positions in the Central Administrative Service and Finance and Management Service
of the Office of the Ombudsman. The CSC issued Opinion No. 44, s. 2004 disapproving the
request on the ground that Director II position, being third level eligibility, is covered by the
Career Executive Service. The Office of the Ombudsman, thus, filed a petition for certiorari
seeking to set aside and nullify CSC Opinion No. 44, s. 2004.

The Office of the Ombudsman asserts that its specific, exclusive and discretionary constitutional
and statutory power as an independent constitutional body to administer and supervise its own
officials and personnel, including the authority to administer competitive examinations and
prescribe reasonable qualification standards for its own officials, cannot be curtailed by the
general power of the CSC to administer the civil service system. Any unwarranted and
unreasonable restriction on its discretionary authority, such as what the CSC did when it issued
Opinion No. 44, s. 2004, is constitutionally and legally infirm.

Issue:

1. Whether or not the Director II positions in the Central Administrative Service and the Finance
and Management Service of the Office of the Ombudsman are covered by the CES

Held:

1. No. Book V, Title I, Subtitle A, Chapter 2, Section 7 of EO 292, otherwise known as “The
Administrative Code of 1987,” the CES covers presidential appointees only.

2. Under the Constitution, the Ombudsman is the appointing authority for all officials and
employees of the Office of the Ombudsman, except the Deputy Ombudsmen.

Under the Constitution, the Office of the Ombudsman is an independent body. As a guaranty of
this independence, the Ombudsman has the power to appoint all officials and employees of the
Office of the Ombudsman, except his deputies.This power necessarily includes the power of
setting, prescribing and administering the standards for the officials and personnel of the Office.

To further ensure its independence, the Ombudsman has been vested with the power of
administrative control and supervision of the Office. This includes the authority to organize such
directorates for administration and allied services as may be necessary for the effective
discharge of the functions of the Office, as well as to prescribe and approve its position structure
and staffing pattern. Necessarily, it also includes the authority to determine and establish the
qualifications, duties, functions and responsibilities of the various directorates and allied
services of the Office. This must be so if the constitutional intent to establish an independent
Office of the Ombudsman is to remain meaningful and significant.

Petition GRANTED and Opinion No. 44, s. 2004 SET ASIDE.

CSC vs. Javier, G.R. No. 173264, 22 February 2008

FACTS:

Respondent Nita P. Javier, hereinafter “Javier”, was first employed as a Private Secretary in the
GSIS [which is a GOCC] on a confidential status in 1960. 2 years later, she was promoted to
Tabulating Equipment Operator with “permanent” status. This status stayed with her throughout
her entire career filled with more promotions until in 1986, when she was appointed Corporate
Secretary of the Board of Trustees of GSIS. However, in 2001, she opted for an early
retirement at the age of 64 and received the benefits therefrom.

GSIS President Garcia reappointed Javier as Corporate Secretary, the same position she left
a year ago but such appointment was classified as “confidential in nature and the tenure
of office is at the pleasure of the Board” by the Board of Trustees.

Petitioner Civil Service Commission, hereinafter “CSC”, alleges that respondent’s reappointment
on confidential status was meant to illegally extend her service and circumvent the laws on
compulsory retirement. This is because under RA 8291 [GSIS Act of 1997], the compulsory
retirement age is 65. However, Rule XIII of the Revised Omnibus Rules on Appointments and
Other Personnel Actions, as amended provides that a person who has already reached the
retirement age of 65 may be appointed to a coterminous/primarily confidential position in
the government and that those appointed in the same manner automatically constitutes as an
extension in the service until the expiry date of the appointment or an earlier termination.

The CSC invalidated the reappointment of Javier on the ground that the position is a
permanent, career position and not primarily confidential. The motion for reconsideration was
also denied on the same ground but further expounding that it was wrong to appoint Javier in
that position since she no longer complies with the eligibility requirements for a permanent
career status.

Upon appeal to the CA, the court set aside the petitioner’s resolution on the ground that in
determining whether a position is primarily confidential or otherwise, the nature of its functions,
duties and responsibilities must be looked into, and not just its formal classification. Examining
the functions, duties and responsibilities of the GSIS Corporate Secretary, the CA concluded
that indeed, such a position is primarily confidential in nature.

ISSUES:

1. Whether the courts may determine the proper classification of a position in

government. [YES]
2. Whether the position of corporate secretary in a GOCC is primarily confidential in
nature. [YES]

RULING:

1. Yes, the courts may determine the proper classification of a position in

government.

The Court is expected to make its own determination as to the nature of a particular
position, such as whether it is a primarily confidential position or not, without being
bound by prior classifications made by other bodies. The findings of the other
branches of government are merely considered initial and not conclusive to the
Court. Moreover, it is well-established that in case the findings of various agencies of
government, such as the petitioner and the CA in the instant case, are in conflict, the
Court must exercise its constitutional role as final arbiter of all justiciable
controversies and disputes.

Presently, it is still the rule that executive and legislative identification or

classification of primarily confidential, policy-determining or highly technical
positions in government is no more than mere declarations, and does not
foreclose judicial review, especially in the event of conflict. Far from what is merely
declared by executive or legislative fiat, it is the nature of the position which finally
determines whether it is primarily confidential, policy determining or highly
technical, and no department in government is better qualified to make such an ultimate
finding than the judicial branch.

2. Yes, the position of corporate secretary in a GOCC is primarily confidential in

nature.

A position is primarily confidential when by the nature of the functions of the office there
exists "close intimacy" between the appointee and appointing power which
ensures freedom of intercourse without embarrassment or freedom from misgivings of
betrayals of personal trust or confidential matters of state.

In classifying a position as primarily confidential, its functions must not be routinary,

ordinary and day to day in character. A position is not necessarily confidential though the
one in office may sometimes handle confidential matters or documents. Only ordinary
confidence is required for all positions in the bureaucracy. But, as held in De los Santos,
for someone holding a primarily confidential position, more than ordinary confidence
is required; the proximity rule must also be complied with.

Under the proximity rule, a position is considered to be primarily confidential when

there is a primarily close intimacy between the appointing authority and the
appointee, which ensures the highest degree of trust and unfettered communication and
discussion on the most confidential of matters. This means that where the position
occupied is already remote from that of the appointing authority, the element of trust
between them is no longer predominant. On further interpretation in Griño, this was
clarified to mean that a confidential nature would be limited to those positions not
separated from the position of the appointing authority by an intervening public
officer, or series of public officers, in the bureaucratic hierarchy.

The nature of the duties and functions attached to the position in the case at bar points
to its highly confidential character. The secretary reports directly to the board of
directors, without an intervening officer in between them. In such an arrangement, the
board expects from the secretary nothing less than the highest degree of honesty,
integrity and loyalty, which is crucial to maintaining between them "freedom of
intercourse without embarrassment or freedom from misgivings or betrayals of
personal trust or confidential matters of state."

The responsibilities of the corporate secretary are not merely clerical or routinary
in nature. The work involves constant exposure to sensitive policy matters and
confidential deliberations that are not always open to the public, as unscrupulous
persons may use them to harm the corporation. Board members must have the highest
confidence in the secretary to ensure that their honest sentiments are always and fully
expressed, in the interest of the corporation.

The position is akin to a personal secretary of a public official. The only distinction
is that the corporate secretary is a secretary to a number of persons who act as if with
one body, to an entire board, while the private secretary only works for one individual.
Nonetheless, the degree of confidence involved is essentially the same.

Not only do the tasks listed point to sensitive and confidential acts that the
corporate secretary must perform, they also include "such other functions as the
Board may direct and/or require," a clear indication of a closely intimate
relationship that exists between the secretary and the board. In such a highly
 acquainted relation, great trust and confidence between appointer and appointee is
required.

The loss of such trust or confidence could easily result in the board's termination
of the secretary's services and ending of his term. This is understandably justified,
as the board could not be expected to function freely with a suspicious officer in its
midst. It is for these same reasons that jurisprudence, as earlier cited, has consistently
characterized personal or private secretaries, and board secretaries, as positions of a
primarily confidential nature.

ADDITIONAL NOTES [IN CASE HE ASKS]:

1. Primarily confidential positions as provided in jurisprudence:

a. Chief Legal Counsel of the Philippine National Bank;
b. Confidential Agent of the Office of the Auditor, GSIS;
c. Secretary of the Sangguniang Bayan;
d. Secretary to the City Mayor;
e. Senior Security and Security Guard in the Office of the Vice Mayor;
f. Secretary to the Board of a government corporation;
g. City Legal Counsel, City Legal Officer or City Attorney;
h. Provincial Attorney;
i. Private Secretary; and
j. Board Secretary II of the Philippine State College of Aeronautics.

2. Civil Service Positions characterized by EO 292 [Administrative Code of 1987]

a. career service; which may sub-classified according to “appointment status”:
i. Permanent - issued to a person who meets all the requirements for the
positions to which he is being appointed, including the appropriate
eligibility prescribed, in accordance with the provisions of law, rules and
standards promulgated in pursuance thereof
ii. Temporary - issued, in the absence of appropriate eligibles and when it
becomes necessary in the public interest to fill a vacancy, to a person
who meets all the requirements for the position to which he is being
appointed except the appropriate civil service eligibility; provided, that
such temporary appointment shall not exceed twelve months, and the
appointee may be replaced sooner if a qualified civil service eligible
becomes available.
b. non-career service positions.

Career positions are characterized as:

a. entrance based on merit and fitness to be determined as far as practicable by
competitive examinations, or based on highly technical qualifications;
b. opportunity for advancement to higher career positions; and
 c. security of tenure.

Non-career positions are characterized by:

a. entrance on bases other than those of the usual tests of merit and fitness utilized
for the career service; and
b. tenure which is 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 employment was made.
 Ong vs. Office of the President, G.R. No. 184219, 30 January 2012
DOCTRINE:
Those who file a quo warranto must prove that they are entitled to the position,
franchise, or office in question, otherwise the petition will not prosper even if the person
against whom it is filed is not qualified.
GIST:
Ong held the position of NBI Director III which he held coterminus with Pres. Arroyo.
Sometime after Arroyo was re-elected, she appointed Bessat to the position of NBI
Director III, effectively revoking Ong’s appointment. Ong contested this, claiming that
since his appointment was co-terminus, his term should end when Arroyo’s term as
President ends. The Court ruled that though his appointment was co-terminus, the
Admin. Code provides that such an appointment is either co-existent with the tenure of
the appointing authority or at the pleasure of such authority. As a consequence, Ong
cannot challenge his removal.

FACTS:

Petitioner Ong joined the NBI in 1978. He held the position of NBI Director I and later
NBI Director II.
● President Arroyo appointed Ong as NBI Director III, despite lacking CES eligibility.
● The appointment paper contained a stipulation that read: “co-terminus with the
appointing authority.”
● On June 2004, Ong received a Memorandum Circular from Respondent Wycoco,
informing him that his appointment, being co-terminus with the appointing authority,
would end at midnight of June 30, 2004 and that he would be occupying the position in
a de facto or hold-over status until a replacement would be appointed.
● On Dec. 2004, the President appointed Respondent Bessat as Ong’s replacement.
Wycoco notified Ong that he should cease and desist from performing the functions of
NBI Director III.
● Ong received aforementioned notice on Jan. 27, 2005.
● On Feb. 22, 2005, Ong filed a petition before the CA for quo warranto, seeking to
have his removal from office declared null and void, and likewise prayed for backwages
and reinstatement.
● The CA denied Ong’s petition, ruling that although his appointment papers provided
that his appointment was co-terminus with the appointing authority, he still served at the
pleasure of the President. As such, his appointment may be recalled anytime. The CA
further ruled that it did not matter that Bessat, his replacement, lacked the necessary
qualifications. In these proceedings, what is pertinent is the entitlement or right of the
petitioner to the position or office in question.
● Ong filed a petition for review on certiorari under Rule 45 before the SC. Ong
contended that the power to remove his was lodged in the appointing authority. It was
Wycoco’s issuance of the Memorandum Circular informing him of his co-terminus
appointment that removed him, not the President herself. Ong further contended that
since his appointment was co-terminus with President Arroyo, his tenure should not
have ended in 2004, but should have been in 2010. (He basically wanted the Court to
rule that his tenure should not have ended in 2004 since Arroyo was elected again)
During the pendency of the instant petition, Ong died but was substituted by his wife
and children.

ISSUE:
1. WON Petitioner’s death rendered the petition moot and academic.
2. WON Petitioner is entitled to the position.

DISPOSITIVE PORTION: IN VIEW OF THE FOREGOING, the petition is DENIED. The

Decision rendered by the CA is AFFIRMED

HELD:

1. Ong’s death renders the prayer for reinstatement moot and academic.
HOWEVER, substitution was still allowed because in the event that the Court
rules that Ong was indeed entitled to the position he claimed, the backwages
pertaining to his can still be paid to his legal heirs.

2. NO. Contrary to Ong’s contentions, the Circular issued by Wycoco did not
remove him from office. It merely informed Ong of his status. When the President
appointed Bessat to NBI Director III, she had effectively revoked Ong’s
appointment. As a general rule, no officer or employee in the Civil Service shall
be removed or suspended except for cause provided by law. However, this
admits to exceptions. The security of tenure is not available to those whose
appointments are contractual or co-terminus in nature. As Ong did not have the
required CES eligibility, his appointment was temporary. As previously held by
the Court in Amores vs. CSC, “an appointment is permanent where the
appointee meets all the requirements for the position to where he is appointed,
including the appropriate eligibility required. It is temporary where the appointee
meets all the requirements for the position except the appropriate civil service
eligibility. Thus, Ong could be removed at a moment’s notice and without cause.
Neither does the fact that his appointment was co-terminus mean he should have
held the office until 2010 as well. The IRR of the Administrative Code defines a
coterminus appointment as one co-existent with the tenure of the appointing
 authority or at his pleasure. As Ong’s appointment was co-terminus and
temporary, he cannot challenge Bessat’s appointment.

Velicaria-Garafil vs. Office of the President, G.R. No. 203371, 16 June 2015

FACTS:

The present consolidated cases involve four petitions: G.R. No. 203372 with Atty.
Cheloy E. Velicaria-Garafil, who was appointed State Solicitor II at the Office of the
Solicitor General, as petitioner; G.R. No. 206290 with Atty. Dindo G. Venturanza, who
was appointed Prosecutor IV of Quezon City, as petitioner; G.R. No. 209138 with Irma
A. Villanueva , who was appointed Administrator for Visayas of the Board of
Administrators of the Cooperative Development Authority, and Francisca B. Rosquita,
who was appointed Commissioner of the National Commission of Indigenous Peoples,
as petitioners; and G.R. No. 212030 with Atty. Eddie U. Tamondong, who was appointed
member of the Board of Directors of the Subic Bay Metropolitan Authority, as petitioner.
Prior to the conduct of the May 2010 elections, then President Gloria Macapagal-Arroyo
issued more than 800 appointments to various positions in several government offices.

The ban on midnight appointments in Section 15, Article VII of the 1987 Constitution
reads:

Two months immediately before the next presidential elections and up to the end
of his term, a President or Acting President shall not make appointments, except
temporary appointments to executive positions when continued vacancies therein
will prejudice public service or endanger public safety.

For the 2010 elections, the cutoff date for valid appointments was March 10, 2010. The
ban on midnight appointments started the next day, March 11, 2010.

The only exception to the midnight ban is "temporary appointments to executive

positions when continued vacancies therein will prejudice public service or endanger
public safety." None of the petitioners claim that their appointments fall under this
exception.
Summary of dates for each petitioner:

Petitioner Date of Date of Date of Date of Assumption

Appointment Transmittal Receipt by Oath of of Office
Letter Letter MRO Office

Atty. March 5 March 8 May 13 March 22 April 6 2010

Velicaria- 2010 2010 2010 2010
Garafil

Atty. February 23 March 9 March 12 March 15 March 5

Venturanza 2010 2010 2010 2010 2010

Villanueva March 3 May 4 2010 April 13

2010 2010

Rosquita March 5 May 13 March 18

2010 2010 2010

Atty. March 1 March 25

Tamondong 2010 2010 &
July 6 2010

ISSUE: Whether petitioners' appointments violate Section 15, Article VII of the 1987
Constitution

RULING:

The Court held in the affirmative. All of petitioners' appointments are midnight
appointments and are void for violation of Section 15, Article VII of the 1987
Constitution. "none of the petitioners have shown that their appointment papers (and
transmittal letters) have been issued (and released) before the ban."The dates of receipt
by the MRO, which in these cases are the only reliable evidence of actual transmittal of
the appointment papers by President Macapagal-Arroyo, are dates clearly falling during
the appointment ban.

The following are the elements of a valid appointment:

1. Authority to appoint and evidence of the exercise of the authority; the President's
exercise of his power to appoint officials is provided for in the Constitution and laws.
Discretion is an integral part in the exercise of the power of appointment. Considering
that appointment calls for a selection, the appointing power necessarily exercises a
discretion.

2. Transmittal of the appointment paper and evidence of the transmittal; It is not enough
that the President signs the appointment paper. There should be evidence that the
President intended the appointment paper to be issued. It could happen that an
appointment paper may be dated and signed by the President months before the
appointment ban, but never left his locked drawer for the entirety of his term. Release of
the appointment paper through the MRO is an unequivocal act that signifies the
President's intent of its issuance.

3. Vacant position at the time of appointment

4. Receipt of the appointment paper and acceptance of the appointment by the

appointee who possesses all the qualifications and none of the disqualifications.

Acceptance is indispensable to complete an appointment. Assuming office and taking

the oath amount to acceptance of the appointment. An oath of office is a qualifying
requirement for a public office, a prerequisite to the full investiture of the office.

In this case, petitioners cannot prove with certainty that their appointment papers were
transmitted before the appointment ban took effect. On the other hand, they admit that
they took their oaths of office during the appointment ban.

Aguinaldo vs. Aquino, G.R. No. 224302, 29 November 2016

FACTS: RA 10660 created two more divisions of the Sandiganbayan with three (3) Justices
each resulting in six (6) more vacant positions. The Judicial Bar Council (JBC) published an
announcement calling for applications for the newly created positions. Pursuant to Art. VIII, Sec.
9 of the 1987 Constitution, the JBC submitted six (6) separate letters to then President Benigno
Aquino III (President Aquino) containing nominations for each vacant position. President Aquino
appointed six (6) new Sandiganbayan Associate Justices namely: respondent Musngi, Justice
Cruz, Justice Mendoza-Arcega, Justice Miranda, respondent Econg, and Justice Trespeses.
Petitioners filed a petition for Quo Warranto and Certiorari and Prohibition against President
Aquino for the alleged violation of Article VIII, Section 9 of the 1987 Constitution.

The petitioners (Aguinaldo et. al.) were nominees in the shortlist of 16th Sandiganbayan
Associate Justice. They contend that they have a legal standing to file the Petition for they
suffered a direct injury from President Aquino’s failure to appoint any of them as the 16th
Sandiganbayan Associate Justice. The JBC alleged that pursuant to Art. VIII, Sec. 9 of the 1987
Constitution, the JBC shall provide at least 3 nominees for the 16th-21st Sandiganbayan
Associate Justices. They assert that the President should have chosen only one (1) nominee
from each of the shortlists. Respondents Musngi and Econg, belonging to the list of nominees
for the 21st Associate Justice were appointed as the 16th and 18th Associate Justice, hence,
their appointment should be null and void for being unconstitutional.

The respondents, represented by the OSG avers that the President as a respondent as
he enjoys immunity from suit. The OSG also explained that the petitioners cannot file an action
for Quo Warranto because usurpation of public office, position, or franchise is not a private
injury but a public wrong. Only the State can file said action through the OSG or public
prosecutor. As an exception, an individual may file an action for quo warranto if he/she claims
entitlement to a public office or position. According to the OSG, petitioners failed to show that
they are entitled to the positions held by Musngi and Econg, as their inclusion in the list of
nominees is not tantamount to certainty of appointment but only a possibility. Petitioners only
have an expectant right because the appointment will depend upon the President’s discretionary
appointing power.

ISSUE: Was President Aquino, under the circumstances, limited to appoint only from the
nominees in the shortlist submitted by the JBC for each specific vacancy?

RULING: NO. The Court held that President Aquino did not violate the Constitution nor commit
grave abuse of discretion when he disregarded the clustering of nominees into six separate
shortlists for each vacancy for Sandiganbayan Associate Justice. This act does not violate
Article VIII, Section 9 of the 1987 Constitution which provides that the President shall appoint
the Members of the Supreme Court and judges of the lower courts from a list of at least three (3)
nominees prepared by the JBC. To meet the requirement of at least three (3) nominees per
vacancy under said provision, there should be at least 18 nominees from the JBC. However,
JBC exceeded when it submitted 37 nominees total. All the six (6) Sandiganbayan Associate
Justices appointed by the President met the requirement of nomination under the Constitutional
provision. Hence, the appointment of respondents Musngi and Econg together with the other
appointees are free from any constitutional infinity.

The Court dismissed the instant petition for Quo Warranto and Certiorari and Prohibition
for lack of merit. The Court declared the appointment of respondents Musngi and Econg valid.

Aguinaldo vs. Aquino, G.R. No. 224302, 21 February 2017

FACTS: The JBC filed Motion for Reconsideration with Motion for Inhibition of the ponente,
Justice De Castro, on 27 December 2016 and a Motion for Reconsideration-in-Intervention of
the decision dated 29 November 2016 on 6 February 2017. The Court denied both Motions in a
Resolution dated 21 February 2017. The resolutions lack merit as the JBC had already admitted
in its previous pleadings that there was a lack of consensus among its members with regard to
the validity of the clustering of nominees for the six vacancies in the Sandiganbayan.

RULING: The Court need not belabor on the issues raised as they were thoroughly passed
upon by the Court in its Decision dated 29 November 2016 and Resolution dated 21 February
2017. The Court resolved to deny for lack of merit the Motion for Reconsideration of the
Resolution dated 21 February 2017 and Supplement Motion for Reconsideration of the
Resolution dated 21 February 2017 of the JBC.