LAW OF PUBLIC OFFICES AND PUBLIC OFFICERS

Guide:
1. Definition and general principles
2. Characteristics of a public office
3. Requirements for public office:
a) Appointment;
b) Designation;
c) Commission
4. Classification of appointment;
a) Regular appointment;
b) Ad Interim appointment;
c) Permanent appointment;
d) Temporary appointment
5. Different steps in the process of appointment
6. What is the best evidence of an appointment?
7. Kinds of acceptance: (a) Express; (b) Implied
8. Distinction, appointment and election
9. What is required for an office to be filled up either by an appointment or by election?
10. Eligibility and qualification
a) Meaning of the term "qualification"
b) Qualifications are continuing requirements
11. Disqualifications: Different disqualifications
12. Failure to qualify
13. De Facto officers; distinctions, de jure officer and de facto officer
14. Commencement of official relations
15. Eight (8) Important principles
a) Appointment
b) Torio vs. CSC
c) The next-in-rank rule
d) De facto/De jure
e) Matters that fall within the exclusive jurisdiction of the CSC
f) Kinds of Personnel Actions
g) Modes of termination of official relationship
h) Liability of Public Officers
16. Explanation of each of the said principles
17. Eight (8) other ancilliary principles 18. Explanation of each ancilliary principle
a) Preference for appointment to new position
b) Can a person be compelled to accept an office?
c) Presidential power of appointment
d) Authority to determine the kind or nature of appointment
e) Revocation of appointment by CSC
f) Meaning of the term qualification
g) Determination through competitive examination
h) Hold over rule

LAW OF PUBLIC OFFICES AND PUBLIC OFFICERS

1. DEFINITION AND GENERAL PRINCIPLES
Q - Define public office.
A - It 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 government, to be exercised by the individual for the benefit of the
public. (Fernandez vs. Sto. Tomas, 242 SCRA 192)

Q - What are the elements of public office?

A-

1|P age
 1. It must be created by law or by ordinance authorized by law;
2. It must possess some sovereign functions of government to be exercised for public interest;
3. The functions must be defined, expressly or impliedly, by law;
4. The functions must be exercised by an officer directly under the control of the law, not under
that of a superior officer, unless they are functions conferred by the law upon inferior officers,
who, by law, are under the control of a superior.
5. It must have some permanency or continuity, not temporary or occasional. (State vs. Hawkins,
257 Pac. 411, 53 A.L. R. 583)

Q - How is a public office created?

A - It is created either by the Constitution, by statute or by law.
Example:

 Offices created by the Constitution - The three independent commissions (Commission on

Elections, Civil Service Commission, Commission on Audit); the Office of the Ombudsman; the
Office of the President; the Legislature and the Supreme Court.
 Statutory offices - Metro Manila Development Authority, National Food Authority, National
Labor Relations Commission, Central Bank of the Philippines.
 Offices created by virtue of validly delegated power - The Philippine Overseas Employment
Administration was created by virtue of Executive Order No. 797 dated May 1, 1992. Philippine
Overseas Employment Administration (POEA) took over the functions of the Overseas
Employment Division Board. In turn, Executive Order No. 247 dated July 24, 1987, granted
additional powers and functions to the POEA.
The Public Service Commission was created under Commonwealth Act No. 146. Said commission is
now known as the Board of Energy which was created by Presidential Decree No. 1208 dated October
6, 1977.

Q - What is a public officer?

A - Generally, it refers to an individual invested with a public office (Mechem, Public Office, Section 1).
When it is used with reference to a person having to do a particular act or perform a particular function
in the exercise of governmental power, it includes any government employee, agent or body having to
do the act or exercise that function. (Section 2, Administrative Code of 1987)
When used under the Revised Penal Code, it refers to 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 Philippines or performs in said Government or in any of its
branches, public duties as an employee, agent or subordinate official, or of any rank or class.
The term public officer, as it is understood under Section 2, Republic Act No. 3019, includes "elective
and appointive officials and employees, permanent or temporary, whether in the classified, or exempt
service, receiving compensation, even nominal from the government."

Q - Define public official.

A - A public official is an officer of the Government itself, as distinguished from the officers and
employees of instrumentality of government. Hence, the duly authorized acts of the former are those of
the government, unlike those of a government instrumentality which may have a personality of its own,
separate and distinct from that of the government, as such. (Gonzales vs. Hechanova, 9 SCRA 230
[1964])

Q - Distinguish public office from employment.

A - An office is a public position created by the Constitution or law, continuing during the pleasure of the
appointing power, or for a fixed time, with a successor elected or appointed.

2|P age
An employment is an agency, for a temporary purpose, which ceases when that purpose is
accomplished. (Groves vs. Borden, 169 N. C. 8, 84 S.E. 1942; Lasher vs. People, 183 III. 226, 55 N.E.
663)

Q - Distinguish an officer from an employee.

A - An officer is distinguished from a mere employee in the sense that: (l) His position has greater
importance, dignity and independence; (2) That he is required to take an official oath, and to give an
official bond; (3) He has greater liability to account for misfeasance or nonfeasance in office; (4) That
his tenure of office is usually different from that of an ordinary employee. (Martin, citing Goodnow,
Comparative Administrative Law, Vol. II, 3)

Q - Distinguish public office from contract.

A-
OFFICE:
1. It is a creation of sovereignty.
2. It is more lasting in nature.
3. Its object is to carry out sovereign as well as governmental functions which involves even
persons who are not parties to the agreement.
CONTRACT:
1. Contract arises from the agreement or will of the parties.
2. The effectivity of the contract may be for a long or short period of time, as may be agreed upon
by the parties.
3. The obligations arising from a contract is, as a rule, enforceable only as between the parties to
the contract. (Article 1311, New Civil Code)

Q - What are the different classifications of a public officer?

A-
I. Executive, Legislative, Judicial

 Executive Officers - Those whose duties are mainly to cause the laws to be executed.
(Mechem, Pub. Off., Section 18)
 Legislative Officers - Those whose duties relate mainly to the enactment of laws. (Ibid.,
Section 9)
 Judicial Officers - Those whose duties are to decide controversies between individuals and
accusations made in the name of the public against persons charged with a violation of the law.
(Ibid., Section 20)
II. De Jure or De Facto

 Officer De Jure - An officer de jure is one who has the lawful right to the office in all respects,
but who has either been ousted from it, or who has never actually taken possession of it.
(Mechem, Pub. Off, Section 326)
 Officer De Facto - An officer de facto is one who has the reputation of being the officer he
assumes to be, and yet, is not the officer in point of law. (Ibid., Section 326)
III. Other classifications:

 Ministerial officers - Those whose duty is to execute the mandates, lawfully issued, of their
superiors. (Ibid., Section 21)
 Special agent - It is, in the sense in which these words are employed in Article 1903 of the Civil
Code, one who receives a definite and fixed order or commission, foreign to the exercise of the
duties of his office if he is a special official. This concept does not apply to any executive agent

3|P age
 who is an employee of the active administration and who on his own responsibility performs the
functions which are inherent in and naturally pertain to his office and which are regulated by law
and the regulations. (Merritt vs. Govt. of the P.I., March 24, 1924)
 Notary public - Is a public officer whose function is to attest and certify, by his hand and official
seal, certain classes of document, in order to give them credit and authenticity in foreign
jurisdictions; to take acknowledgments of deeds and other conveyances, and certify the same;
and to perform certain official acts, chiefly in commercial matters, such as the protesting of
notes and bills, the noting of foreign drafts, and marine protests in cases of loss or damage. (46
C.J.S. 501)

Q - What is the nature of the office of Notary Public?

A - Notaries public are public officers, but not in the sense that such term is used in the Administrative
Code, because, while it is true that they perform necessary public duties, however, such duties are not
in the discharge of governmental functions. They are not necessary to the administration of the
government. Their office exists for the benefit and convenience of the public. They receive their fees
from the party, whether it is the government itself or private individual, for whom the service is
rendered.
A lawyer is first and foremost an officer of the court, although not necessarily a public officer. His duties
to the court are more significant than those which he owes his client. (Salcedo vs. Hernandez, 61 Phil.
724; Coff-Perez vs. Lantin, 24 SCRA 391 [1968]) ##903

2. CHARACTERISTICS OF A PUBLIC OFFICE

a) Public office is a public trust - Under this principle, public officials in all the ladders of our
government should always remember that they were merely entrusted by the people to perform
the duties and responsibilities of their offices for a fixed period of time. They were chosen to
serve the people, not to cheat them. Their offices are not their own, nor can they be treated as
private properties which they can manage or dispose of at their whim and caprice.

b) Public office is not private property - It cannot be treated as a personal possession, legacy or
gift. It is not transferable to another and it must be relinquished at the end of the term.

c) A public office, like public trust, is built and founded by the people themselves - Trust, as it
connotes, is reposed only to those who deserve the trust. Just as the people is the creator of
that trust, so must the people have the right to withdraw it when there is no more reason for its
continuity. When this happens, the public office remains but the public official who is no longer
trusted by the sovereign electorate goes out of office.

d) There can be no vested right in public office or its salary - At the will of the legislature, a public
office may be changed or even abolished. Besides such abolition, its term, compensation and
powers may be validly reduced even over the objection of the incumbent.

3. REQUIREMENTS FOR PUBLIC OFFICE:

A - (a) appointment; (b) Designation; (c) Commission

APPOINTMENT
Q - Distinguish appointment from designation.
A - Appointment is the selection, by the authority vested with 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. (Sevilla vs. Court of Appeals, G.R. No. 88498, June 9, 1992, First Division, Griño-Aquino, J.)

4|P age
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. (Ibid.)
Furthermore, designation merely connotes an imposition of additional duties, usually by law, upon a
person already in the public service by virtue of an earlier appointment. It does not entail payment of
additional benefits or grant upon the person so designated the right to claim the salary attached to the
position. Without an appointment, a designation does not entitle the officer to receive the salary of the
position. The legal basis of an employee's right to claim the salary attached thereto is a duly issued and
approved appointment to the position, and not a mere designation. (National Amnesty Commission vs.
Commission on Audit, G.R. No. 156982, September 8, 2004)

Q - Who exercises appointing power?

A - The determination of who among the several candidates for a vacant position has the best
qualifications is vested in the sound discretion of the department head or appointing authority and not in
the Civil Service Commission. Every particular job in an office calls for both formal and informal
qualifications. Formal qualifications such as age, number of academic units in a certain course,
seminars attended, and so forth, may be valuable but intangibles like resourcefulness, team spirit,
courtesy, initiative, loyalty, ambition, prospects for the future, and best interests of the service are also
valuable. Given the demands of a certain job, who can do it best should be left to the head of the office
concerned provided the legal requirements for the office are satisfied. The Civil Service Commission
cannot substitute its judgment for that of the head of office in this regard. (Español vs. Civil Service
Commission, G.R. No. 85479, March 3, 1992, En Banc, Regalado, J.)

Q - When does an appointment take effect?

A - CSC Resolution No. 91-1631 expressly provides that in no case shall an appointment take effect
earlier than the date of its issuance.

Q - Distinguish the following terms: (1) Appointment; (2) Commission; (3) Designation
A-

 Appointment

It is the selection, by the authority vested with the power of an individual who is to exercise the power of
a given office. (Binamira vs. Garucho, 188 SCRA 154)

 Designation

Connotes merely the imposition by law of additional duties on an incumbent official.

(Ibid.)

 Commission

Is the written evidence of the appointment.

4. CLASSIFICATION OF APPOINTMENT:
A - (A) REGULAR APPOINTMENT; (B) AD INTERIM APPOINTMENT; C) PERMANENT
APPOINTMENT; D) TEMPORARY APPOINTMENT

Q - Distinguish regular from ad interim appointment.

5|P age
A-

 Regular appointment

It is an appointment made by the President while Congress is in session after the nomination is
confirmed by the Commission on Appointments. It continues until the end of the term.

 Ad Interim

It is an appointment made while Congress is not in session, before confirmation by the Commission on
Appointments. It is immediately effective and ceases to be valid if disapproved or bypassed by the
Commission on Appointments upon the next adjournment of Congress.

Q - What is the nature of an ad interim appointment?

A - An ad-interim appointment is permanent in nature, and the circumstance that it is subject to a
confirmation by the Commission on Appointments does not alter its permanent character. (Summers
vs. Ozaeta, G.R. No. L-1534, October 25, 1948; Pamantasan ng Lungsod ng Maynila vs. Intermediate
Appellate Court, 140 SCRA 22)

Q - Distinguish permanent appointment from temporary appointment.

A.

 Permanent Appointment - 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.

 Temporary Appointment - one who holds temporary appointment has no fixed term of office
and employment can be terminated at the pleasure of the appointing authority, there being no
need to show that the separation is for cause (San Pedro vs. Civil Service Commission, G.R.
No. 100321 February 12, 1992, En Banc). Hence, 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. (Chua vs. Civil Service Commission, G.R. No.
88979, February 7, 1992, En Banc, Padilla, J.)

Q - Should an appointee with a temporary status possess the civil service eligibility required?
A - Under Section 25, Presidential Decree 807, otherwise known as the Civil Service Decree of the
Philippines, an appointee with a temporary status need not possess the civil service eligibility required
by the position provided he meets the following qualifications:
a. it is necessary in the public interest to fill a vacancy;
b. there are no appropriate eligibles;
c. the temporary appointment shall not exceed twelve months; and
d. he may be replaced sooner if a qualified civil service eligible becomes available. (Torio
vs. Civil Service Commission, G.R. No. 99336; Española vs. Civil Service Commission,
G.R. No. 100178, June 9, 1992, En Banc, Gutierrez, Jr., I)

Q - Is a person temporarily appointed to a Civil Service position entitled to security of tenure

even if he lacks the needed qualifications for the said position?

A - No. The holder of the position can only enjoy security of tenure if he or she possesses the
qualifications and eligibility prescribed for it. (House of Representatives vs. Loanzon, G.R. No. 168267,
February 16, 2006)

6|P age
Q - Who should be given preference for appointment to new positions?
A - Section 4 of Republic Act No. 6656 provides: "Officers and employees holding permanent
appointments shall be given preference for appointment to the new positions in approved staffing
pattern comparable to their former positions or in case there are not enough comparable positions, to
positions next lower in rank." (Torio vs. Civil Service Commission, G.R. No. 99336; Española vs. Civil
Service Commission, G.R. No. 100178, June 9, 1992, En Banc, Gutierrez, Jr., J.)
REASON: The preference given to permanent employees assumes that employees working in a
Department for longer periods have gained not only superior skills but also greater dedication to the
public service. (Ibid.)

Q - If after considering all the current employees, the Department Secretary cannot find among
them the person he needs to revive a moribund office, or to upgrade second rate performance,
can he reach out to other departments or to the private sector in choosing a person he needs?

A - The law does not preclude the infusion of new blood, younger dynamism or necessary talents into
the government service. If, after considering all the current employees, the Department Secretary
cannot find among them the person he needs to revive a moribund office or to upgrade second rate
performance, there is nothing in the Civil Service Law to prevent him from reaching out to other
Departments or to the private sector provided all his acts are bona fide and for the best interest of the
public service and the person chosen has the needed qualifications. (Ibid.)

5. DIFFERENT STEPS IN THE PROCESS OF APPOINTMENT

For regular appointments which need confirmation of CA
1) Nomination by the President
2) Confirmation by the CA
3) Issuance of the commission
4) Acceptance by the appointee
In case of ad interim appointments, the nomination, issuance of the appointment and acceptance by the
appointee precede the confirmation by the CA

For appointments which do not need confirmation of CA

1) Appointment by appointing authority

2) Issuance of the commission
3) Acceptance by the appointee
Acceptance of the appointment by the appointee is the last act that completes the appointing process.
(Lacson vs. Romero, 84 Phil. 740)

For appointments to the career service of the civil service

1) An appointment to the career service of the Civil Service is not deemed complete until
attestation approval by the Civil Service Commission. Without the favorable certification or
approval of the CSC, no title to the office can be deemed to be permanently vested in favor of
the appointee, and the appointment can still be revoked or withdrawn by the appointing
authority.

Q - Can a person be compelled to accept an office?

A - No. REASON: There is no law which can compel a person to accept an office except as may be
required under Section 4, Article II of the 1987 Constitution which provides as follows: "Section 4. The
prime duty of the Government is to serve and protect the people. The Government may call upon the

7|P age
people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions
provided by law, to render personal military or civil service."

Q - Appointment has been made and the appointee has assumed the duties and functions of the
position in the Civil Service Commission. Can the said appointment be revoked by the
appointing authority on the ground that the protestant is more qualified than the first
appointee?
A - No. The person so appointed acquired a legal right to his position which is protected by law and the
Constitution.

6. WHAT IS THE BEST EVIDENCE OF AN APPOINTMENT?

The best evidence of an appointment is his written commission. (The delivery of the commission is the
last act required by the appointing power and the same completes the appointment.)

7. KINDS OF ACCEPTANCE
1. Express - It may be made verbally or in writing; and
2. Implied - If the officer is in the actual occupation and exercise of the office, his acceptance of it
would be presumed. (Mechem, Pub. Off., Section 252)

Q - How is a public officer chosen?

A - A public officer is chosen either by appointment or election.

8. DISTINCTION, APPOINTMENT AND ELECTION

In appointment, the person who is to exercise the function of a given office is made by the executive
officer, board, or body, to whom the power to designate is given (Appari vs. Court of Appeals, 127
SCRA 231). In election, the choice is made by an enfranchised citizenry by virtue of the right of
suffrage.
Example of elective officials:
President, Vice-President, Members of Congress, Governor, Vice-Governor, Board Members, Mayor,
Vice-Mayor, Councilors, Barangay Chairman and Councilmen
Example of Appointed Officers by the President

Cabinet members, Commissioners of different commissions, ambassadors, consuls, officers of the

AFP, from rank of colonel or naval captain, all other officers of the government whose appointments are
not provided bylaw, and those whom he may be authorized by law to appoint.

Q - Can the power of appointment be delegated? Why?

A - No, because appointment involves the exercise of discretion.

Q - Is the presidential power of appointment absolute?

A - No, it is subject to the following limitations:

1) The President shall nominate and, with the consent of the Commission on Appointments,
appoint the heads of the executive departments, ambassadors, other public ministers and
consuls, or officers of the armed forces from the rank of colonel or naval captain, and other
officers whose appointments are vested in him in this Constitution. He shall also appoint all

8|P age
 other officers of the Government whose appointments are not otherwise provided by law, and
those whom he may be authorized by law to appoint. The Congress may, by law, vest the
appointment of other officers lower in rank in the President alone, in the courts; or in the heads
of departments, agencies, commissions, or boards.

The President shall have the power to make appointments during the recess of the Congress,
whether voluntary or compulsory, but such appointments shall be effective only until disapproval
by the Commission on Appointments or until the next adjournment of the Congress.

2) The spouse and relatives by consanguinity or affinity within the fourth civil degree of the
President shall not during his tenure be appointed as members of the Constitutional
Commissions, or to the Office of the Ombudsman, or as secretaries, undersecretaries, chairman
or heads of bureaus or offices including government-owned or controlled corporations and their
subsidiaries. (Section 13, 2nd paragraph, Article VII, 1987 Constitution)

3) 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.

4) Appointments of an Acting President shall remain effective, unless revoked by the elected
President within 90 days from his assumption or re-assumption of office. (Section 14, Article VII)

5) The appointees of the President must possess the required qualifications. The appointee
concerned may be questioned in appropriate court proceedings.

Q - When is confirmation of the Commission on Appointments required?

A - It is required only for the offices mentioned in Section 16, first sentence, Article VII of the
1987 Constitution, to wit:
Code: H-A-O-A
H - eads of the executive department
A - mbassadors, or other public ministers and consuls
O - fficers of the armed forces from the rank of colonel or naval captain
A - nyone whom he can appoint by authority to law.

Q - When is confirmation of the Commission on Appointments not required?

A-
1) Other officers whose appointments are vested in him in this Constitution.
2) All other officers of the government whose appointments are not provided for by law.

Q - Does the appointment of the Chairman and the Commissioners of the Commission on
Human Rights need the confirmation of the Commission on Appointments?

A - No. REASON: The position of the Commission on Human Rights is not among the positions
mentioned in Section 6, first sentence, of Article VII of the 1987 Constitution. (Bautista vs. Salonga, 72
SCRA 169)

Q - Does the appointment of sectoral representatives need the confirmation of the Commission
on Appointments?

9|P age
A - Yes, because this position is covered by Section 16, first sentence, of Article VII of the 1987
Constitution. (Quintos-Deles vs. Commission on Appointments, 177 SCRA 259)

Q - Does the appointment of Chairman and commissioners of the NLRC need the confirmation
of the Commission on Appointments?

A - No. They are not among the officers mentioned in Section 16, first sentence.

Q - The appointment was described as permanent in the space provided for in Civil Service
Form No. 33, but the words "Approved as Temporary" was stamped in the appointment. The
appointee is qualified and other legal requirements are satisfied. Is the Civil Service
Commission authorized to determine the kind or nature of the appointment extended by the
appointing officer, or will it just attest to the appointment in accordance with Civil Service
Laws?
A - The Civil Service Commission is not empowered to determine the kind or nature of the appointment
extended by the appointing power. What it can do is only either to approve or review the appointment to
see to it that the requirements of the Civil Service Commission are complied with. When all legal
requirements are complied with and the appointee is qualified what the Civil Service Commission has to
do is only to attest to the appointment. (Luego vs. Civil Service Commission, 143 SCRA 327)
Much later, in Lopez vs. Civil Service Commission (G.R. No. 92140, February 19, 1991), the Supreme
Court ruled that what the Civil Service Commission may do is just to determine whether or not the
appointee possesses the qualifications and requisite eligibility. If the appointee is qualified and eligible,
his appointment is approved, and if riot, his appointment is disapproved.
A month after the decision in Lopez vs. Civil Service Commission, the Supreme Court elucidated further
the ruling in Lopez and said: "As long as the appointee possesses the minimum qualifications
prescribed bylaw or regulations, there is no question that his appointment must be respected by the
Civil Service Commission even if it be proved that there are others with superior credentials. However,
this rule does not cover those cases where it is found by the Commission, after examining the
appointment papers, that the appointee does not satisfy the minimum qualifications for the position in
question. In these cases, the Commission would be well within its right - and responsibility - in refusing
to approve the appointment." (Cortez vs. Civil Service Commission, G.R. No. 92673, March 13, 1991,
En Banc, Cruz, J.)

Q - Can the Civil Service Commission revoke an appointment in the belief that another is better
qualified than the appointee?

A - The Supreme Court ruled: "The Civil Service Commission has no authority to revoke an
appointment simply because it is believed that another is better quaked than the appointee for that
would have constituted an encroachment of the discretion vested solely in the appointing authority. The
Commission cannot exceed its power by substituting its will for that of the appointing authority. (Lopez
vs. Civil Service Commission, G.R. No. 92140, February 19, 1991, En Banc, Gutierrez, Jr, J.)
9. WHAT IS REQUIRED FOR AN OFFICE TO BE FILLED UP EITHER BY AN APPOINTMENT OR
BY ELECTION?
The office to be filled up should be vacant following the principle that no person may be an appointed to
an office which is not vacant no matter how qualified he is for a certain position. (Jocom vs. Regalado,
24 SCRA 73)

Q - Do the courts have jurisdiction over void appointments?

A - Yes. While an appointment is an essentially discretionary executive power, it is subject to the
limitation that the appointee should possess none of the disqualifications but all the qualifications
required by law. Where the law prescribes certain qualifications for a given office or position, courts

10 | P a g e
may determine whether the appointee has the requisite qualifications, absent which, his right thereto
may be declared void. (Engaño vs. Court of Appeals, G.R. No. 156959, June 27, 2006)

Q - When does vacancy exist?

A - It exists when there is no person lawfully authorized to assume and exercise at present the duties of
the office.

Q - What are the different kinds of vacancies?

A - CODE: O-C-A-A

 Original (There is an office which is created but no one has as yet been chosen to fill it.)
 Constructive (In this kind of vacancy, the incumbent has no legal right to the office and he may
be replaced.)
 Accidental (When on account of death, resignation, removal or abandonment, the incumbent is
separated from the service.)
 Absolute (There is no successor yet to the incumbent whose term expired.)

10. ELIGIBILITY AND QUALIFICATION

MEANING OF THE TERM "QUALIFICATION"

It is understood in different senses: (l) It may refer to the qualities or endowments required of the public
officer in order that he may be considered eligible for public office (i.e. age, citizenship, and academic
qualifications); (2) It may refer to the act of enabling a person to perform the duties and functions of his
office (i.e. taking the oath of office).
In the first one, the person appointed or elected must possess the prescribed qualifications at the time
of his appointment or election and during the period of the official relationship.
In the second, the failure to perform an act required by law could affect the officer's title to the given
office. An oath of office is a qualifying requirement for a public office (Lecaroz vs. Sandiganbayan, G.R.
No. 130872, March 25, 1999). Under Batas Pambansa Blg. 881, Section 11, thereof, it is provided that
"the office of any official elected who fails or refuses to take his oath office within six months from his
proclamation shall be considered vacant, unless said failure is for a cause or causes beyond his
control." [Example: (1) Taking an oath or affirmation to uphold and defend the Constitution; (2)
Accountable officers are required to be properly bonded]

Q - Can property qualifications be imposed for the exercise of the right to run for public office?
A - A law which required all candidates to post a P20,000.00 bond upon the filing of their certificates of
candidacy, and which provided its confiscation if they did not obtain at least 10% of the total votes cast
in the constituency where they were running, was declared unconstitutional and null and void by the
Supreme Court (Maquira vs. Borra, 15 SCRA 7). REASON: The said law is inconsistent with the nature
and essence of the Republican System and the principle of social justice.

Q - Who prescribes the qualifications?

A - Qualifications may be prescribed by the Constitution or by statute. If the same are prescribed by the
Constitution, the qualifications are specifically enumerated and the legislature cannot impose additional
qualifications. If the qualifications are prescribed by law, it must do so in such a detailed manner so as
not to leave any discretion to the appointing power in making a choice of the person to be appointed.
Moreover, the qualification prescribed must be relevant to the position.
Example:
On The Matter Of Imposing Additional Qualifications

11 | P a g e
Q - Can Congress pass a law requiring a college degree as an added qualification to be senator
or congressman?

A - No, because the said law is unconstitutional.

Q - Can Congress pass a law requiring a college degree as an added qualification of the
President and Vice-President of the Philippines?
A - No, because the said law is unconstitutional.

Q - Can the Constitutional Convention approve a constitutional provision requiring additional

qualifications of a President, Vice-President, Senator and Congressman?
A - Yes, because the power to amend the Constitution has been entrusted by the people to the
delegates of the Constitutional Convention whom they have chosen to represent them in the said
convention. Moreover, when the Constitution, drafted and approved by the said Constitutional
Convention, was duly approved in a plebiscite, the people have necessarily approved the said
constitutional provision.

Q - Can the legislature prescribe qualifications in a general manner?

A - Yes. This happens if the intention of the legislature is to allow a widest possible field of choice.

Q - When can the legislature prescribe additional qualifications?

A - This becomes possible (1) when the Constitution does not prescribe a qualification or qualifications;
or (2) When the Constitution prescribes only for minimum qualifications.

Q - What is the restraint or limitation to Congress when it exercises its right to prescribe
qualifications or disqualifications?
A - The qualifications or disqualifications it prescribes should not violate the Constitution. Otherwise, it
can be assailed as unconstitutional. Hence, if a law provides that the mere filing of a criminal
information for disloyalty is prima facie evidence of guilt which is sufficient to disqualify a person from
running for public office, the said law is, as it was considered, unconstitutional (Dumdao vs. Comelec,
95 SCRA 400). REASON: It violates the principle that a person is presumed innocent until his guilt is
proved beyond reasonable doubt.

B. QUALIFICATIONS ARE CONTINUING REQUIREMENTS

Q - When should the prescribed qualifications be possessed by a person, who is either
appointed or elected?
A - They should be possessed on the date indicated by the Constitution or by law, and they are
continuing requirements which means that they must be possessed not only on the date of selection or
assumption but for the full duration of the officer's incumbency. (Aguila vs. Genato, 103 SCRA 380)
Example: Under the 1987 Constitution, the age qualification must be possessed on the day of the
election, not on the day of the proclamation of the winners of the board of canvassers, which was the
reckoning period used in the case of Espinoza vs. Aquino. (Electoral Case No. 9, Senate Electoral
Tribunal)

Q - What happens if any of the qualifications is lost during the tenure?

A - The right to the office is automatically forfeited.

12 | P a g e
11. DISQUALIFICATIONS
Q - Who prescribes the disqualifications?

A - Disqualifications may also be prescribed by the Constitution or by statute.

SPECIFIC DISQUALIFICATIONS UNDER THE CONSTITUTION

Judicial Department
1. The members of the Supreme Court and other courts established by law shall not be designated
to any agency performing quasi-judicial or administrative functions. (Section 12, Article VIII)
Executive Department

1. The President, Vice-President, the Members of the Cabinet, and their deputies and assistants
shall not, unless otherwise provided in the Constitution, hold any other office or employment
during their tenure. (Section 13, Article VII)
2. They shall not, during said tenure, directly or indirectly, practice any other profession, participate
in any business, or be financially interested in any contract with, or in any franchise, or special
privilege granted by the Government or any subdivision, agency, or instrumentality thereof,
including government-owned or controlled corporations or their subsidiaries. They shall strictly
avoid conflict of interest in the conduct of their office.
3. The spouse and relatives by consanguinity or affinity within the fourth civil degree of the
President shall not during his tenure be appointed as Members of the Constitutional
Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen
or heads of bureaus or offices, including government-owned or controlled corporations and their
subsidiaries.
Legislative Department
1. No Senator or Member of the House of Representatives may hold any other office or
employment in the government, or any subdivision, agency, or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries, during his term without
forfeiting his seat. Neither shall he be appointed to any office which may have been created or
the emoluments thereof increased during the term for which he was elected. (Section 13, Article
VI)
Constitutional Commissions
1. No Member of a Constitutional Commission shall, during his tenure, hold any other office or
employment. Neither shall he engage in the practice of any profession or in the active
management or control of any business which in any way may be affected by the functions of
his office, nor shall he be financially interested, directly or indirectly, in any contract with, or in
any franchise or privilege granted by the Government, any of its subdivisions, agencies, or
instrumentalities, including government-owned or controlled corporations or their subsidiaries.
(Section 2, Article IX)
2. The civil service shall be administered by the Civil Service Commission composed of a
Chairman and two Commissioners who shall be natural-born citizens of the Philippines and, at
the time of their appointment, at least thirty-five years of age, with proven capacity for public
administration, and must not have been candidates for any elective position in the elections
immediately preceding their appointment. (Article IX-B, Section 1[1])
3. The Chairman and the Commissioners shall be appointed by the President with the consent of
the Commission on Appointments for a term of seven years without reappointment. Of those
first appointed, the Chairman shall hold office for seven years, a Commissioner for five years,
and another Commissioner for three years, without reappointment. Appointment to any vacancy
shall be only for the unexpired term of the predecessor. In no case shall any Member be
appointed or designated in a temporary or acting capacity. (Article IX-B, Section 1[2])

13 | P a g e
Ombudsman and his deputies
1. The Ombudsman and his Deputies shall serve for a term of seven years without reappointment.
They shall not be qualified to run for any office in the election immediately succeeding their
cessation from office. (Section 11, Article XI)
NOTE: The National Amnesty Commission ex officio members' representatives are covered by the
constitutional prohibitions against holding multiple positions in the government and receiving double
compensation because there is no law or administrative order creating a new office or position and
authorizing additional compensation therefor. (National Amnesty Commission vs. Commission on Audit,
G.R. No. 156982, September 8, 2004)

12. FAILURE TO QUALIFY

Q - Does the delay in qualifying means that the office is automatically forfeited?
A - No. It will only give a justification to appropriate superior authorities to prevent entry into the office
until such time that the delay is explained by the appointee. Hence, mere delay in the taking of an oath
does not mean that the office is rejected and when the oath is so taken, the default is waived. However,
if the law requires qualification within a specified time and provides further that failure to do so will result
in automatic loss of the right to the office, this has to be complied with. Otherwise, the right to the office
is automatically lost.

13. DE FACTO OFFICERS; DISTINCTIONS, DE JURE OFFICER AND DE FACTO OFFICER

Q - What is a de facto officer?
A - A person is considered a de facto officer:
1. When, without a known appointment or election, but under such circumstances of reputation or
acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his
action, supposing him to be the officer he assumed to be;
2. When, there is a color of a known and valid appointment or election, but where the officer had
failed to conform to some precedent, requirement, or condition, as to take an oath, give a bond,
or the like;
3. When he exercised his duties under a color of a known appointment or election; or that there
was a want of power, in the electing or appointing body; or there is some defect or irregularity in
its exercise, and such ineligibility, want of power, or defect is unknown to the public. For said
reasons, the acts of the de facto officer are void.
4. When there was color of an election or an appointment but such is based on an unconstitutional
law. Here, the person exercising the duties is considered de facto officer before the said law is
adjudged to be unconstitutional. (Martin, citing Conn, 449, 9 Am. Rep. 409; Luna vs. Rodriguez,
37 Phil. 186)
In recent jurisprudence, the following are considered a de facto officer:
1. A public official or employee who assumed office under an incomplete appointment is merely a
de facto officer for the duration of his occupancy of the office. (Corpuz vs. Court of Appeals, 285
SCRA 23
2. A de facto officer is defined as one who derives his appointment from one having colorable
authority to appoint, if the office is an appointive office, and whose appointment is valid on its
face. (Dimaandal vs. Commission on Audit, 291 SCRA 322)
3. A de facto officer is one who is in possession of an office, and is discharging its duties under
color of authority, by which is meant authority derived from an appointment, however irregular or
informal, so that the incumbent be not a mere volunteer. (Ibid.)
4. A de facto officer is one who is in possession of an office in the open exercise of its functions
under color of an election or an appointment, even though such election or appointment may be
irregular (Ibid.)

14 | P a g e
Q - What is the basis of the rationale of the de facto officer?
A - It is unreasonable to require the public to inquire into the title of an officer, or compel him to show
title because the public do not have time and opportunity to investigate the title of the incumbent. As a
matter of policy and necessity, the doctrine serves to protect the public and the individuals whenever
their interests are involved in the official acts of persons exercising the duties of an office. (Tayko vs.
Capistrano citing State vs. Caroll, 38 Conn. 449, 9 Am. Rep. 409)

Q - Are the acts of a de facto officer, insofar as they affect the public, valid?
A - They are valid and legal insofar as they affect the public.

Q - What are the liabilities of a de facto officer?

A-
(1) He is liable upon his bond
(2) He is liable for his negligence
(3) He is liable for his embezzlement
(4) He is liable for malfeasance in his assumed office (Mechan on Public Officers, 336-338, 341)

Q - What are the elements of a defacto office?

A - Code: VAC
V - alid and legitimate office
A - ctual possession of said office in good faith
C - olor of title to the office or general acquiescence by the public

Q - When is there a color of title to the office?

A - Same answer as in the first question and answer, No. 13, as above-mentioned.

Q - Distinguish de jure officer from that of a de facto officer.

A-
De Facto Officer
1. A de facto officer may be ousted in a direct proceeding against him.
2. A de facto officer has the possession and performs the duties under color of right, without being
legally qualified to act. (Martin citing Tayko vs. Capistrano. 53 Phil. 866)
De Jure Officer
1. A de jure officer cannot be removed.
2. A de jure officer has the lawful right or title without the possession of the office.

EXAMPLES OF THE ELEMENTS OF A DE FACTO OFFICE

1. Valid and Legitimate

Q - If Mr. A was not validly elected or appointed, or he is not eligible, and he occupies a
legitimate office, is he a de jure or de facto officer?

15 | P a g e
A - He is a de facto officer.

Q - Same example but the office itself is void, but Mr. A was validly elected or a appointed, is he
a de jure or a de facto officer?
A - He is neither a de facto officer nor a de jure officer for no office at all exists.

Q - Suppose Mr. A, a candidate for public office was proclaimed in an election which was
irregularly held, is he a de facto officer?
A - He is a de facto officer before the said election is nullified.

Color of Title - When a judge in good faith remains in office after his previous valid appointment has
lapsed and the public continues to acquiesce his acts, and during the time he was regarded as a judge,
his successor has not been appointed, he is considered as a de facto judge.
Another example is a case where one is qualified and eligible but he was appointed by one who was
not empowered or authorized to make an appointment.
A mayor who insisted to remain in his office despite the forfeiture of his office is a de facto officer.
3. Actual Possession of the Office - A decision promulgated by a judge who already ceased to be a
judge of the Court presided by him, is void. REASON: He has no more authority to promulgate the said
decision.
The decision is likewise void if after he ceased as a judge, it was promulgated under another judge.
(Solis vs. Court of Appeals, 38 SCRA 53)

RIGHT TO COMPENSATION
Q - Can a de facto officer claim salary or compensation for salaries rendered by him as such?

A - The rule in Monroy vs. Court of Appeals is to the effect that a de facto officer, not having good title
take the salaries at his risk and must therefore account to the de jure officer for whatever amount of
salary he received during the period of his wrongful retention of public office. (20 SCRA 620)
The said rule, however, does not apply if there is no de jure public officer, in which case, the de facto
officer shall be entitled to the salaries prescribed by law for the given office during the period when he
actually discharged the functions of said office.
NOTE: In the following cases, an officer, although de facto, was declared to be entitled to
compensation:
1) RODRIGUEZ vs. TAN (91 Phil. 724) - The successful Protestant was claiming to recover the
salaries collected by the protestee before he was ousted from the Senate. This was denied.
REASON: The protestee was duly proclaimed as Senator and he assumed office as required by
law, hence, he is entitled to compensation, emoluments and allowances which our Constitution
provides for one position.
2) MENZON vs. PETILLA (197 SCRA 251) - Petitioner assumed the office of the Vice-Governor
under color of a known appointment. He was appointed by the DILG Secretary, and thereafter,
he took his oath of office. Later, the validity of his appointment became an issue and the
recognition withdrawn. The Supreme Court ruled that it is iniquitous to deny the salary due to
the petitioner for services be actually rendered as the Acting Vice-Governor of Leyte.

Q - Can a de facto officer be made to reimburse funds disbursed by a de facto officer during his
term of office?
A - Yes. REASON: Because his acts are as valid as a de jure officer.

16 | P a g e
Q - Is a de facto officer subject to the same liabilities that are imposed to a de jure officer?
A - Yes. REASON: He assumed the office at his own risk and he must be prepared to be held
responsible for the performance of his duties.

ACTION TO TAKE AGAINST A DE FACTO OFFICER

Q - Can a de facto officer be ousted in a collateral action?
A - A de facto officer may be ousted in a direct proceeding, not in a collateral action. A direct and
authorized proceeding is Quo Warranto under Section 1, Rules 66 of the New Rules of Court which
provides as follows:
"SECTION 1. Action by Government against individuals - An action for the usurpation of a public office,
position or franchise may be commenced by a verified petition brought in the name of the Republic of
the Philippines against:
a) A person who usurps, intrudes into, or unlawfully holds or exercise a public office, position or
franchise;
b) A public officer who acts as a corporation which, by the provision of law, constitutes a ground for
the forfeiture of his office;
c) An association which acts as a corporation within the Philippines without being legally
incorporated or without lawful authority so to act. (la)

14. COMMENCEMENT OF OFFICIAL RELATIONS

Q - Earlier, it was mentioned that a public officer is chosen either by appointment or election. Is
it also through appointment or election that official relations are commenced?
A - Yes.
NOTE: Before proceeding to the eight important principles (which is the next topic), remember
thoroughly the discussion of the requirements for public office (the preceding topic), particularly the
different kinds of appointments, distinction between appointment, designation and commission,
distinction between appointment and election, different kinds of vacancies and eligibility and
qualification

15. EIGHT (8) IMPORTANT PRINCIPLES

CODE: AT NEXT-DM-PML
1). Appointment
2). Torio vs. CSC
3). The next-in-rank rule
4). De facto I De Jure
5). Matters that fall within the exclusive jurisdiction of the CSC
6). Kinds of Personnel Actions
7). Modes of termination of official relationship
8). Liability of Public Officers

EXPLANATION OF EACH OF THE SAID PRINCIPLES

1. Appointment
7. PRINCIPLES REGARDING POWER AND AUTHORITY TO MAKE AN APPOINTMENT
a) Essentially a discretionary power

17 | P a g e
 b) The appointing authority, not the CSC, determines who, among the several candidates for a
vacant position, has the best qualification
c) CSC has no authority to direct the appointing authority to appoint a certain person
d) Once appointment is issued and the moment the appointee assumes a position in the civil
service under a complete appointment, he acquires a legal, not merely equitable right which is
protected by the Law and the Constitution.
e) Once the discretionary power of appointment has been exercised and the appointee assumed
the duties and functions of the position, the said appointment cannot be revoked by the
appointing authority, on the mere ground that the protestant is more qualified than the first
appointee.
f) An appointee with a temporary status need not possess the Civil Service eligibility required by
the position. This is subject to the qualifications in Torio vs. CSC.
g) The "next in rank" rule is not absolute.

Distinguish appointment from designation

Already answered.

2. Torio vs. CSC

An appointee with a temporary status need not possess the civil service eligibility required by the
position provided he meets the following qualifications:
1) It is necessary in the public interest to fill up the vacancy
2) There are no appropriate eligible
3) The temporary appointment shall not exceed 12 months
4) He may be replaced sooner if a qualified Civil Service eligible becomes available. (Sec. 25,
Presidential Decree No. 807; Torio vs. CSC, G.R. No. 99336; Esparol vs. CSC, G.R. No.
100198, June 9, 1992)

3. The "Next-In-Rank" Rule

This may be disregarded even in case of promotions, and even in promotions, it can be disregarded for
sound reasons make known to the next-in-rank.
The appointing authority under the CSC, is allowed to fill vacancies by promotion, transfer of present
employees, reinstatement, re-employment and appointment of outsiders who have appropriate Civil
Service eligibility, not necessarily in that order.
THERE IS NO LEGAL FIAT THAT A VACANCY MUST BE FILLED ONLY BY PROMOTION. THE
APPOINTING AUTHORITY IS GIVEN A WIDE DISCRETION TO FILL A VACANCY FROM AMONG
THE SEVERAL ALTERNATIVES PROVIDED BY LAW. (Español vs. CSC G.R. No. 85479, March 3,
1992)

4. De Facto/De Jure
Already discussed. Just remember the following important points, thus:
1) Distinctions, de jure and de facto officer
2) Elements of a de facto office: (a) Valid and legitimate office; (b) Actual possession of his office;
(c) Color of title to the office
3) Liabilities of a de facto officer
4) A de facto officer may be ousted in a direct proceeding, not in a collateral action.
Example of direct proceeding: Quo Warranto
5) Rationale for allowing a de facto officer to recover compensation
6) Basis of the rationale of the de facto officer

18 | P a g e
5. Matters that fall within the exclusive jurisdiction of the CSC
Disciplinary cases, and cases involving "personnel actions" affecting employees in the civil service
including "appointment through certification, promotion, transfer, reinstatement, reemployment, detail,
reassignment, demotion and separation," and, of course, employment status and qualification
standards, are within the exclusive jurisdiction of the Civil Service Commission.

5. Kinds of personnel actions

CODE: PAT-RE-RE-RE-DE
P-romotion
A-ppointment through certification
T-ransfer
RE-employment
RE-assignment
RE-instatement
DE-tail

EXPLAIN EACH BRIEFLY

 Promotion

It is a movement from one position to another with increase in duties and responsibilities as authorized
by law and usually accompanied by an increase in pay.

 Appointment Through Certification

It is issued to a person who has been selected from a list of qualified persons certified by the CSC from
an appropriate register of eligibles, and who meets all the qualifications prescribed for the position.

 Transfer

It is a movement from one position to another which is of equivalent rank, level or salary without break
in service. Transfer may be imposed as an administrative penalty under current Civil Service Rules.

 Reemployment

Names of persons who have been appointed permanently to positions in the career service and who
have been separated as a result of reduction in force and/or reorganization, shall be entered in a list
from which selection for re-employment shall be made.

 Reassignment

An employee may be reassigned from one organizational unit to another in the same agency, provided
that such reassignment shall not involve a reduction in rank, status or salary.

 Reinstatement

Any person who has been permanently appointed to a position in the career service and who has,
through no delinquency or misconduct, been separated therefrom, may be reinstated to a position in
the same level for which he is qualified.

 Detail

It is the movement of an employee from one agency to another in the same agency, provided that such
reassignment shall not involve reduction in rank, status or salary. This is a prerogative of the CSC.

19 | P a g e
THE "NEXT-IN-RANK" RULE IS NOT ABSOLUTE
This may be disregarded even in case of promotions. The next in rank rule is not absolute. It only
applies in case of promotions. It only applies in cases of promotions. And even in promotions it can be
disregarded for sound reasons made known to the next-in-rank. The appointing authority, under the
Civil Service Law, is allowed to fill vacancies by promotion, transfer, or present employees,
reinstatement, re-employment, and appointment of outsiders who have appropriate civil service
eligibility, not necessarily in that order. There is no legal fiat that a vacancy must be filled only by
promotion; the appointing authority is given wide discretion to fill a vacancy from among the several
alternatives provided by law. (Español vs. Civil Service Commission, G.R. No. 85479, March 3, 1992,
En Banc, Regalado, J.)

Q - Must all appointments involved in a chain of promotions be submitted for approval of the
Civil Service Commission?

A - "All appointments involved in a chain of promotions must be submitted simultaneously for approval
by the Commission. The disapproval of the appointment of a person proposed to higher positions
invalidates the promotion of those in the lower positions and automatically restores them to their former
positions. However, the affected persons are entitled to payment of salaries for services actually
rendered at a rate fixed in the promotional appointments." This is known as the Automatic Reversion
Rule. (Section 13, Omnibus Rules Implementing Book V E.O. 292)

Q - What are the requisites in order that said rules will apply?
A-
1) There must be a series of promotions.
2) All promotional appointments are simultaneously submitted to the Commission for approval.
3) The Commission disapproves the appointment of a person to a higher position. (Divinagracia
vs. Sto. Tomas, G.R. No. 110954, May 31, 1995)

APPOINTMENT THROUGH CERTIFICATION

Q - What is required for this kind of appointment?
A-
1. The person to be selected or selected is in a list of qualified persons certified by the CSC from
an appropriate register of eligibles.
2. The person to be selected or selected meets all the qualifications prescribed for the position.

TRANSFER
Q - Is the transfer of an employee from one position to another a violation of his security of
tenure even if results to his promotion?
A - Yes, if the said employee is removed without his consent. REASON: That amounts to removal from
office.

Q - Is it possible that an employee is permanently transferred to another position without

violating his security of tenure?

A - This is possible if an employee is lawfully removed first from his position, and thereafter, he is
appointed to another position which is of equivalent rank, level or salary.

20 | P a g e
RE-EMPLOYMENT
When is this possible?

A- This happens when persons who were previously appointed permanently to positions in the career
service have been separated from the service on account of re-organization or reduction in a list from
which selection for reemployment shall be made.

REASSIGNMENT
Can an employee be reassigned from one organizational unit to another in the same agency?
A - Yes, provided that such reassignment shall not involve reduction in rank, status or salary.

Q - As a result of the redefinition and re-numbering of the regional districts of the BIR, a BIR
employee was reassigned from Pampanga to Cagayan. The said employee questioned the
legality of the re-assignment alleging that it was a demotion. Is the said contention correct?
A - No. Said contention will, in effect, subordinate government projects to his personal preference.
Besides, he failed to exhaust administrative remedies because he should have questioned first the
validity of his transfer by appeal to the Civil Service Commission. (Chato vs. Natividad, G.R. No.
113843, June 2, 1995)

REINSTATEMENT
Q. Due to alleged dishonesty, A was separated from government service. Much later, he was
granted executive clemency on the basis of findings that the charges are not true. Is A restored
to his office upon the issuance of the clemency and is he entitled to back wages?

A - Yes. REASON: The executive clemency completely obliterated the administrative effects of the
administrative division. He is restored to his office ipso facto upon the issuance of the clemency.
(Garcia vs. Chairman, COA, G.R. No. L-75025, September 14, 1993)

Q - Can reappointment be the subject of an application for mandamus?

A - No. It is discretionary on the part of the appointing power. (Gloria vs. Judge De Guzman, G.R. No.
116183, October 6, 1995)

Q - Can the courts interfere in the exercise of the said discretion?

A - No. (Ibid.)

DETAIL
Q - What is the nature of "detail"?
A - It is temporary in nature, hence, it is allowed only for a limited period in the case of employees
occupying professional, technical and scientific positions. (Republic vs. Court of Appeals, 182 SCRA
721)

7. Modes of Termination of Official Relationship

CODE: ERRRRAP-DIFAACO-FILING
7.1 Expiration of term or tenure
7.2 Resignation

21 | P a g e
7.3 R-ecall
7.4 Removal
7.5 Reaching age limit
7.6 Abandonment
7.7 P-rescription of right to office
7.8 Death
7.9 I-mpeachment
7.10 Failure to assume election office
7.11 A-cceptance of incompatible office
7.12 A-bolition of office
7.13 CO-nviction of a crime
7.14 FILING of certificate of candidacy

EXPLANATION OF EACH
7.1 EXPIRATION OF TERM OR TENURE
Distinction of term and tenure
Term means the time during which the public officer may claim to hold office as of right, and fixes the
interval after which the several incumbents shall succeed one another. (Olivares vs. Villaluz, 57 SCRA
163)
Tenure represents the actual period during which the incumbent holds office.
The tenure may be shorter than the term for reasons beyond the power of the incumbent. (Nueno vs.
Angeles, 76 Phil. 12)

Q - After the EDSA People Revolution in 1986, the new President accepted the courtesy
resignations of constitutional officers with fixed terms of office. What is the legal effect of said
acceptance of courtesy resignations?
A-
1) It resulted in the expiration of the term.
2) The public officers concerned are entitled to retirement benefits. (Ortiz vs. Comelec, 162 SCRA
812; In Re Retirement of Justice Britanico, 173 SCRA 421)

Q - What is the effect of replacement of a public officer who holds office at the pleasure of the
appointing power?
A - The replacement is regarded as termination through expiration of the term, not removal. (Astraquillo
vs. Manglapus, 190 SCRA 280)

Q - When does the term of office begin?

A - SIMPLIFICATION OF THE RULES
1. It begins upon qualification.
- When the law fixes the period within a chosen officer may qualify for the office.
2. It begins from date of appointment (in case of appointment), or from the date of election (in
case of elective office).

22 | P a g e
 - When no time is fixed by law.
OTHER RULES:

1. When a law fixing the term of public is ambiguous

The law that fixes the term at the shortest period should be followed.
2. When the Constitution or the law fixed both the term of office and the time of its commencement
or termination
A person elected or appointed to fill a vacancy in such office shall hold the same only for the unexpired
portion of the term.
3. When only the duration of the term is fixed but no time is established or the beginning or end of
the term.
The person selected to fill the vacancy may serve the full term and not merely the unexpired balance of
the prior incumbent's term.
4. When an office is created, or an officer is appointed just to accomplish a specific purpose or
purposes
The office terminates and the authority of the public officer ceases when said purpose or purposes
is/are accomplished.

7.2 RESIGNATION
Resignation is the "act of giving up or the act of an officer by which he declines his office and
renounces the further right to use it. It implies an expression of the incumbent in some form, express or
implied, of the intention to surrender, renounce, and relinquish the office and its acceptance by
competent and lawful authority." (Nacaytuna vs. People of the Philippines, G.R. No. 171144, November
24, 2006) . It need not be in any particular form unless some form is prescribed by law. It may therefore
be in writing or by parol. However, in order that there could be a complete and expressive resignation of
public office, there must be:
(1) AN INTENTION TO RELINQUISH A PART OF THE TERM;
(2) AN ACCOMPANYING ACT OF RELINQUISHMENT.
(Martin, citing State vs. Augustine, 113 MO. 21, 20 S. W. 651, 35, A.S.R. 696; State vs. Allen, 21 Ind.
516, 83); (3) RESIGNATION MUST BE ACCEPTED BY PROPER AUTHORITY. (Sangguniang Bayan
of San Andres, Catanduanes vs. Court of Appeals, G.R. No. 118883, January 16, 1998)

Q - Why is acceptance of resignation necessary?

A - A public officer who abandons his office to the detriment of the public before his resignation in
accepted is liable under Article 238 of the Revised Penal Code.

Q - When is resignation deemed complete?

A - It is complete when it is accepted by the proper authority. However, if there is a provision
authorizing the public officer to hold over until his successor is chosen and qualified, then resignation
has no effect until after the successor has entered upon the duties of the office.

Q - Can resignation be withdrawn?

A-
1. It cannot be withdrawn in the following instances:

23 | P a g e
 a. An unconditional resignation which takes immediate effect and has been transmitted to
the power authorized to accept it cannot be withdrawn even with the consent of the
officer with whom it is filed;
b. An unconditional resignation which will take effect in the future cannot be withdrawn if it
has been duly accepted by the proper authority, although the time at which it is to take
effect has not arrived;
2. Before a prospective resignation is accepted, it may be withdrawn even if it is unconditional, if
the accepting authority consents and if no new rights have intervened. (State vs. Augustine,
supra)

Q - Can resignation be repudiated?

A - Resignation can be repudiated in the following instances:
1. When it has been transmitted without the consent of the public officer;
2. When it was procured by fraud or by duress.

Q - When shall resignation be effective?

A - It is effective when the public officer receives notice of the acceptance of his resignation, not on the
date of the letter or notice of acceptance.

OFFICER AUTHORIZED TO ACCEPT RESIGNATION

Q - Who are the officers authorized to accept resignation?
A - Whoever is the competent authority as may be provided by law.
EXAMPLE:
1. Resignation of President and Vice-President
- Their resignation must be tendered to Congress.
2. Members of Congress
- Their resignation must be tendered to either the Senate or House of Representatives.
3. Appointive public officers
- Their resignation must be tendered to the appointing authority.
4. Local elective public officials
- Their resignation must be tendered to the following officers, to wit:
a) Governors, Vice-governors, Mayors, Vice-Mayors of highly urbanized cities and independent
component cities
- Their resignation must be tendered to and accepted by the President.
b) Municipal Mayors, Vice-Mayors, City Mayors, and Vice-Mayors of component cities
- Their resignation must be tendered to and accepted by the Governor.
c) Sangguniang Members
- Their resignation must be tendered to and accepted by the Sangguniang concerned.
d) Barangay Officials
- Their resignation must be tendered to and accepted by the City or Municipal Mayors.

24 | P a g e
7.3 RECALL
It is a mode of terminating official relationship prior to the expiration of the term of a public officer on
account of loss of confidence. Recall can be initiated either by (1) a preparatory recall assembly; or (2)
by the registered voters of the local government unit.

Q - What is recall?
A - It is a mode of terminating official relationship prior to the expiration of the term of a public officer on
account of loss of confidence. Recall can be initiated either by (1) a preparatory recall assembly; or (2)
by the registered voters of the local government unit.

Q - What is the composition of the Preparatory Recall Assembly?

A - It is composed of the following:

1. Provincial level - All Mayors, Vice-Mayors and Sanggunian Members of the municipalities and
component cities.
2. City level - All Punong Barangay and Sangguniang Barangay Members in the city.
3. Legislative District level - Where Sangguniang Panlalawigan Members are elected by district,
all elective municipal officials in the district; and in cases where Sangguniang Panglungsod
Members are elected by district, all elective barangay officials in the district.
4. Municipal level - All Punong Barangay and Sangguniang Barangay Members in the
municipality.

Q - What is the procedure for initiating recall by a preparatory recall assembly?

A-
1. A majority of all the preparatory recall assembly members may convene in session in a public
place and initiate a recall proceeding against any elective official in the local government unit
concerned.
2. Recall of provincial, city or municipal officials shall be validly initiated through a resolution
adopted by a majority of all the members of the preparatory recall assembly concerned during
its session called for the purpose.

Q - What is the procedure for initiating recall by registered voters?

A - Recall of a provincial, city, municipal or barangay official may also be validly initiated upon petition
by at least 25% of the total number of registered voters in the local government unit concerned during
the election in which the local official sought to be recalled was elected.
a) A written petition for recall duly signed before the election registrar or his representative, and in
the presence of a representative of the petitioner and representative of the official sought to be
recalled, and in public place in the province, city, municipality or barangay, as the case may be,
shall be filed with the Comelec through its office in the local government unit concerned. The
Comelec or its duly authorized representative shall cause the publication of the petition in a
public and conspicuous place for a period of not less than ten (10) days nor more than twenty
(20) days for the purpose of verifying the authenticity and genuineness of the petition and the
required percentage of voters.
b) Upon the lapse of the aforesaid period, the Comelec or its duly authorized representative shall
announce the acceptance of candidates to the position and thereafter prepare the list of
candidates which shall include the name of the official sought to be recalled.

PROCEDURE AFTER SAID RESOLUTION OR PETITION FOR RECALL IS FILED WITH THE
COMELEC

25 | P a g e
Q - What is the procedure after the resolution (of the PRA) or the petition (of the registered
voters) is filed with the Comelec?

A-
1. The Comelec shall set the date for the election on recall which shall not be later than thirty (30)
days after the filing of the same (in the case of the barangay, city or municipal officials), and
forty-five (45) days (in case of provincial officials)
2. The official or officials sought to be recalled shall automatically be considered as duly registered
candidate or candidates to the pertinent positions and, like other candidates, shall be entitled to
be voted upon. (Sec. 71, Republic Act No. 7160)

Q - When is the recall of an elective local official effective?

A - It is effective upon the election and proclamation of a successor in the person of the candidate
receiving the highest number of votes cast during the election on recall. (Section 72, Republic Act No.
7160)

Q - What happens if the person sought to be recalled receive the highest number of votes?
A - He shall continue in office. (Ibid.)

LIMITATIONS ON RECALL
Q - Can an elective local official be the subject of a recall election at anytime during his term of
office?
A - No. REASON:
1. He can be the subject of recall election only once during his term of office for loss of confidence.
2. No recall shall take place within one (1) year from the date of the official's assumption to office
or one (1) year immediately preceding a regular local election.

Q - Are the said limitations applicable to the SK election?

A - No. (Pacas vs. Comelec, G.R. No. 123166, November 4, 1996)

7.4 REMOVAL
Q - Can an officer or employee be temporarily transferred or assigned without his consent as a
preliminary step toward his removal?
A - As held in Bentain vs. CA, while a temporary transfer or assignment of personnel is permissible
even without the employee's prior consent, it cannot be done when the transfer is a preliminary step
toward his removal, or is a scheme to lure him away from his permanent position, or designed to
indirectly terminate his service, or force his resignation. Such a transfer would in effect circumvent the
provision which safeguards the tenure of office of those who are in the Civil Service. (Batangas State
University vs. Bonifacio, G.R. No. 167762, December 15, 2005)

Q - Can an officer or employee of the civil service be removed or suspended?

A - They can only be removed or suspended for cause provided by law. (Sec. 2[3] Article IX-B, 1987
Constitution) and in accordance with the procedure required by law.

Q - In addition to the aforementioned rule, what else is the assurance that security of tenure is
protected?

26 | P a g e
The Administrative Code of 1987 lays down the following rules:
1. The grounds for discipline of civil servants are enumerated in Section 46, Book V(A).
2. The procedure of investigation is likewise provided in Section 46.
3. During the pendency of his administrative investigation the employee charged shall be subject
to preventive suspension.
4. The preventive suspension shall, however, be lifted after ninety (90) days if he is not a
presidential appointee unless the delay in the investigation is imputable to him. (Section 47,
Book V[A])

DOMINGO VS. DEVELOPMENT BANK OF THE PHILIPPINES

G.R. NO. 93355, APRIL 7, 1992, EN BANC, REGALADO, J.
(NOTE: Already discussed in connection with Section 2[3], Article IX-B, 1987 Constitution).

EFFECT OF REMOVAL WITHOUT JUST CAUSE

Q - What is the effect of removal without just cause and failure to comply with prescribed
procedure?
A - It is a reversible error and the officer or employee unlawfully removed shall be entitled to
reinstatement with back salaries and without loss of seniority rights. He is considered as not having left
his office and he is therefore entitled to all the rights and privileges that accrue to him. (Cristobal vs.
Melchor, 101 SCRA 857)

CONSIDERED AS REMOVAL EVEN IF AN EMPLOYEE IS NOT REMOVED

Q - When is an officer or employee considered removed even if he was not actually removed
from his office or position?
A - Even if an officer or employee is not actually removed from his office or position, he is considered
removed without just cause in the following instances:
1. When he is demoted and no cause is shown to justify the same. (Floreza vs. Ongpin, 182 SCRA
692);
2. When there is unconsented transfer;
3. When the employee is being transferred to lure him away from his permanent position, and it is
done without his consent.

RULE IN CASE OF OFFICIALS AND EMPLOYEES HOLDING CONFIDENTIAL POSITIONS

Q - Until when can they remain in their positions?
A - They serve at the pleasure of the appointing power. Their cessation from office involves no removal
but expiration of term of office.

RULE IN CASE OF TEMPORARY OR ACTING APPOINTEES

Q - Until when can they remain in their positions?

A - They may be removed at any time, without the need of just cause or a valid investigation.

PREVENTIVE SUSPENSION
Q - What is a preventive suspension?
A - It is a disciplinary measure which is intended to enable the disciplinary authority to investigate
charges against the respondent by preventing the latter from using his position or office to influence

27 | P a g e
witnesses, to intimidate them, or to tamper with the records which may be vital in the prosecution of the
case against him.

Q - What is the duration of the preventive suspension?

A - If the investigation is not finished and the decision is not rendered within a period of ninety (90)
days, the suspension will be lifted and the respondent will be automatically reinstated with full pay for
the period of suspension.

Q - What is the effect if his conviction is affirmed?

A - The period of suspension becomes part of the first penalty of suspension or dismissal.

Q - Is preventive suspension a penalty?

A - Preventive suspension is not a penalty but merely a preventive measure, a preliminary step in an
administrative investigation. The period served should not be considered part of the actual penalty of
suspension. (Quimbo vs. Gervacio, G.R. No. 155620, August 9, 2005)

REQUIREMENT BEFORE THE EXONERATED EMPLOYEE IS ENTITLED TO BACK WAGES

Q - A, a civil service employee, was charged with dishonesty, oppression, grave misconduct,
neglect of duty. Later, he was exonerated after investigation. Is he already entitled to payment of
back wages after his exoneration?

A - It is not enough that an employee is exonerated. It must also be shown that the suspension of the
employee is unjustified.

CABALITAN VS. DAR

G.R. NO. 162805, JANUARY 23, 2006
FACTS:
Petitioner is an employee of DAR. His officemates filed a complaint against him alleging that he sold to
complainants cards ostensibly exempting the holder thereof from the Unified Vehicular Volume
Reduction Program (UVVRP) of the MMDA, but that said cards were all a sham. The complainants
demanded reimbursement of their money but petitioner made all kinds of excuses.
The DAR Secretary formally charged petitioner with grave misconduct and found him guilty. Upon
appeal, the CSC likewise found him guilty and ordered his dismissal. Petitioner filed a motion for
reconsideration and the penalty was modified to nine months suspension. This was affirmed by the CA.
Petitioner filed the present petition for review assailing the finding of guilt and the propriety of the
penalty imposed. In addition, he asserts that he is entitled to back salaries not only due to the wrongful
finding of guilt but also because he was allowed by his superiors to perform service and his
employment contract had been duly renewed.
ISSUE:
Whether petitioner is entitled to back salaries.
RULING:

No. Petitioner is not entitled to back salaries because his appointment has not become effective.
First, CSC Resolution No. 91-1631 expressly provides that in no case shall an appointment take effect
earlier than the date of its issuance.
Second, the appointment was not approved by the CSC. No proof was presented to show that the
appointment paper was even transmitted to the CSC. The appointment thus fell short of a legal

28 | P a g e
requirement under Section 12 of the Administrative Code of 1987 and its Implementing Rules and
Regulations. The law requires that the appointment be submitted to the CSC, which will ascertain, in
the main, whether the proposed appointee is qualified to hold the position, and whether the rules
pertinent to the process of appointment were observed. Thus, it is essential that the appointing officer
and the CSC acting together, though not concurrently but consecutively, make an appointment
complete. In acting on the appointment, the CSC determines whether the appointee possesses the
appropriate civil service eligibility or the required qualifications. If the appointee is qualified, the
appointment should be approved. If not, it should be disapproved.
In the present case, the petitioner had been issued a retroactive appointment, but said appointment
never became effective. The result is that petitioner could not be entitled to back salaries for the period
January 1 to July 31, 2001. CSC Resolution No. 91-1631 provides that the appointing authority shall be
liable for the salaries of the appointee whose appointment became ineffective. Hence, the person from
whom he can demand accountability for the payment of his back salaries, if any, is the appointing
authority who allowed him to report for work, for the cited period, if indeed he was so allowed.

REMEDY OF THE PARTY ADVERSELY AFFECTED BY THE DECISION

Q - What are the remedies of the party adversely affected by the decision?

A - Appeal, if allowable, which shall be made within 15 days from the receipt of the decision, unless a
petition for reconsideration is seasonably fled, which petition shall be decided within 15 days.

Q - What are the grounds of the petition for reconsideration?

A - It should be based in the following grounds:
1. New evidence which has been discovered which materially affects the decision rendered;
2. The decision is not supported by the evidence on record; or
3. Errors of law or irregularities have been committed which are prejudicial to the interest of the
respondent.

Q - What action can be taken if the complaining party is aggrieved by the Civil Service
Commission resolution?
A - The petitioner can file a petition for certiorari under Rule 65, not Rule 45, of the Rules of Court,
within the 30 days from receipt of the copy of the resolution.

Q - Can the Civil Service Commission appeal from the resolution of the Court of Appeals
exonerating the respondent and which reversed the decision of the Civil Service Commission?
A - Yes, it was allowed by the Supreme Court in Civil Service Commission vs. Dacuycuy, G.R. No.
135805, April 29, 1999.

Q - Is it always necessary that motion for reconsideration must first be filed before resorting to
Certiorari under Rule 65?
A - The Rule that motion for reconsideration must first be filed before resorting to Certiorari is merely a
general rule. (D. C Crystal vs. Laya, 170 SCRA 734 [1989]; Purefoods Corp. vs. NLRC, 171 SCRA 415
[1989]; Philippine National Construction Corporation vs. National Labor Commission, July 7, 1995, 245
SCRA 66)
The filing of such a motion is intended to afford public respondent an opportunity to correct any actual
or fancied error attributed to it by way of re-examination of the legal and factual aspects of the case.
Thus, petitioner's inaction or negligence under the circumstances is respondent's commission to
cleanse itself of an error unwittingly committed or to vindicate itself of an act unfairly imputed. An
improvident resort to certiorari cannot be used as a tool to circumvent the right of public respondent to

29 | P a g e
review and purge its decision of an oversight, if any. Neither should this special action be resorted to as
a shield from the adverse consequences of petitioner's own negligence or error in the choice of
remedies. Having allowed the decision to become final and executory, petitioner cannot by an overdue
strategy, question the correctness of the decision of the respondent commission when a timely motion
for reconsideration was the legal remedy indicated. (Purefoods Corporation vs. NLRC, supra)
The said rule admits several exceptions. In the following cases, a Motion for Reconsideration may be
dispensed with:
1. Where public welfare and the advancement of public policy so dictates, and the broader interest
of justice so requires;
2. Or where the orders complained of were issued in excess of or without jurisdiction (Philippine
Consumer Foundation, Inc. vs. NTC, 125 SCRA 845);
3. Or where appeal was not considered the appropriate remedy, such as appeal from orders of
preliminary attachment or appointment of a receiver (Enriquez vs. Rivera, 90 SCRA 641);
4. When it would raise the same points;
5. Where the error is patent or the order is void (Aquino vs. NLRC, 226 SCRA 76 [1993]);
6. Where relief is extremely urgent as when the court has already ordered execution of partial
summary judgment (Guevara vs. CA, 124 SCRA 297). Where petitioner's property is scheduled
to be sold on execution there is no need to wait for the resolution on a motion for
reconsideration (Vda. de Sayman vs. CA, 121 SCRA 650 [1983]).

COMMUTATION OR REMOVAL OF ADMINISTRATIVE PENALTIES

Q - Can the President commute administrative or disabilities imposed upon officers in
disciplinary cases?
A - Yes, subject to such terms and conditions as he may deem proper to impose in the interest of the
service.

7.5 REACHING AGE LIMIT

Q - What is the compulsory retirement age for appointive government officers and employees?
A-
Members of the judiciary - 70 years
Other government officers and employees - 65 years

Q - Can government officers and employees retire before reaching compulsory retirement age?
A - This is allowed under Republic Act No. 1616 provided an officer has rendered a minimum number of
years of government service.

Q - Can the service of officers and employees who have reached the age of 65 years but who
have not yet completed 15 years of government service be extended?
A - Said extension may be allowed or disallowed at the discretion of the head of the agency concerned.
However, this discretion has to be exercised in conformity with Civil Service Commission Memorandum
Circular No. 27. (Rabor vs. Civil Service Commission, G.R. No. 111812, May 31, 1995)

Q - Can extension of service of members of the judiciary be allowed?

A - Yes, especially in the case of one who has served with competence, integrity and dedication to
public service. (In-Re: Gregorio Pineda, 187 SCRA 469)

30 | P a g e
7.6 ABANDONMENT
It is a cause for terminating public office indicated by the action of the incumbent in voluntarily
surrendering it to another under a mistaken belief that the latter has been elected as his rightful
successor, or even by the acquiescing on his own removal. In order to constitute an abandonment of
office, it must be total, and under such circumstances as to clearly indicate an absolute relinquishment.
When once abandoned the former incumbent cannot legally repossesses the office even if by forcible
re-occupancy (Martin citing State vs. Jones, 19 Ind. 356, 81 A.m. Dec. 403). There must be clear proof
of deliberate and unjustified intent to sever the employer-employee relationship. (Batangas State
University vs. Bonifacio, G.R. No. 167762, December 15, 2005)

Q - Distinguish abandonment from resignation

A - Abandonment - There is a clear proof of deliberate and unjustified intent to sever the employer-
employee relationship.
Resignation - Resignation in general is a formal relinquishment.

Q - A, a civil service officer, was granted of one (1) year leave of absence without pay. He failed
to return to the service after the expiration of one (1) year leave without pay. What action can be
done for the said employee?
A - He can be automatically separated from the service.

Q - A, an employee, has been absent for more than three (3) months without pay, and without a
proper leave of absence. What action can be taken against him?

A - He can be considered absent without leave (AWOL), and he can be dropped from the service.

7.7 PRESCRIPTION OF THE RIGHT TO OFFICE

It is a mode of terminating official relationship caused by a public officer who has not been the subject
of illegal ouster or dismissal. A petitioner for reinstatement or for recovery of a public office must be
instituted within one (1) year from the date the petitioner is unlawfully ousted from his office.

Q - What is the rationale behind the one (1) year requirement within which to file a petition for
reinstatement?

A - The interest of public welfare requires that the right or title to public office should not be left hanging
and uncertain.

Q - Is the said one (1) year requirement absolute?

A - In one case, a petition was allowed by the Supreme Court, nine (9) years after the petitioner was
dismissed from office on the ground of equity.

7.8 DEATH
Q - Why is death a mode of terminating official relationship?
A - When the public official dies, he necessarily ceases to have a right to the office he holds, because
he cannot, from that time, be able to perform his duties and responsibilities.

7.9 IMPEACHMENT

31 | P a g e
See detailed discussion in Accountability of Public Officers, including the discussion of G.R Nos.
146710-15, March 2, 2001, entitled Joseph Estrada vs. Aniano Desierto in his capacity as
Ombudsman, et a!.

7.10 FAILURE TO ASSUME ELECTIVE OFFICE

Q - Besides the public official's eligibility for public office, he should, before entering into the
performance of the functions of a public office, take the oath of office. Within what time shall
said public official take his oath of office?
A - Within six (6) months from his proclamation. (Section 11, Batas Pambansa Big. 881)

Q - What is the consequence if he fails or refuses to take his oath of office within the said
period?
A - The office of any official elected shall be considered vacant, unless said failure is for a cause or
causes beyond his control. (Ibid.)

Q - During the time or in the meantime that the said official has not yet taken his oath of office,
who is the rightful occupant of the office?
A - The holdover officer. (Lecaroz vs. Sandiganbayan, G.R. No. 130872, March 25, 1999)

7.11 ACCEPTANCE OF INCOMPATIBLE OFFICE

Q - What constitutes incompatibility?
A - Offices are said to be incompatible when from the nature and relations to each other, of the two
places, they ought not to be held by the same person, from the contrariety and antagonism which would
result in the attempt by one person to faithfully and impartially discharge the duties of one, toward the
incumbent of the other. (Mechem, Pub. Off, Sec. 422)

Test of incompatibility

One of the most important tests as to whether offices are incompatible, is found in the principle that the
incompatibility is recognized whenever one is subordinate to the other in some of its important and
principal duties, or is subject to supervision by the other, or where a contrariety and antagonism would
result in the attempt by one person to discharge the duties of both. Under this principle two offices are
incompatible where the incumbent of one has the power to remove the incumbent of the other though
the contingency on which the power may be exercised is remote, and it also exists where the
incumbent of one office has the power of appointments as to the other office. (Martin citing Atty. Gen.
vs. Detroit, 112 Mich. 145, 70 N. W 450; Haymaker vs. State [NM] 163 Pac. 248).
But in order that one office may be adjudged incompatible with another it must clearly appear that the
two offices actually exist as distinct positions and that the second is not merely and ex officio extension
of the duties of the incumbent of the first. (Martin citing Moore vs. Nation, 80 Kan 672, 103 Pac. 197, 18
Am. Cas. 397)

Effect of holding incompatible offices

Acceptance of the second office incompatible with the first ipso facto vacates the latter.
No proceeding by quo warranto or otherwise, is necessary in order to declare or complete the vacation
of the first office. It may be at once filled again either by appointment or election as the law provides.
Even though the title to the second office fails, as where the election is void, the rule is still the same.
(Martin citing Zandueta vs. De la Costa, 66 Phil. 615; Mechem Pub. Off, Sec. 425)

32 | P a g e
 ADAZA VS. PACANA, 135 SCRA 431
In Adaza vs. Pacana, the petitioner who was then the Governor of Misamis Oriental ran for the
Batasang Pambansa but lost. He subsequently assumed the governorship when Adaza became
qualified as Assemblyman. Adaza questioned Pacana's assumption of the governorship on the ground
that under the parliamentary system a legislator could concurrently serve as governor, and for this
reason, there was no vacancy in the governorship. The Supreme Court ruled that when Adaza took his
oath as Assemblyman, he automatically forfeited the governorship.

Q - In the case of Senators or Members of the House of Representatives, what is the rule on
incompatible office?
A - GENERAL RULE: A Senator or Member of the House of Representatives may not hold any other
office or employment in the government, or any subdivision, agency, or instrumentality thereof,
including government-owned or controlled corporations or their subsidiaries, during his term without
forfeiting his seat.
EXCEPTION: Except if it is shown that said other office or employment is an extension of the legislative
position or is in aid of legislative duties. Example:
1. Members of Congress who are appointed by the President to serve in the Peace Panel between
the GRP and NDF.
2. Members of Congress who are appointed by the President to assist him during his re-
negotiation for renewal of the Amari Contract.

7.12 ABOLITION OF OFFICE

Q - Who has the power to abolish an office?

A - An office created by Congress may be abolished by it at any time and even while the office is
occupied by a duly elected or appointed incumbent. REASON: There is no obligation on Congress or
the people to continue a useless office only for the benefit of the person who holds the office.

Q - Is that not a deprivation of the contractual right or property interest on the office?
A - No. The employee accepts the office with the understanding that it may be abolished at anytime,
and the tenure of the office is not affected by the constitutional provision regarding impairment of
obligation of contract. (63 Am Jur. 2d688)

Q - Can the President or local governments abolish an office?

A - Yes, if the said power has been delegated to them or by the people themselves when they amend
the constitution.

Q - Can constitutional offices be abolished by Congress?

A - No.

REQUIREMENT TO ABOLISH OFFICE

Q - Is the right to abolish absolute?

A - The abolition must be made in good faith, and not for personal or political reasons. (De la Liana vs.
Alba, 112 SCRA 294)

33 | P a g e
Q - What is considered as justification in good faith?
A - This is to be decided based on the facts of each case (Dario vs. Mison 176 SCRA 84). Fiscal
restraint and economy, for instance, was considered as a justification. (Ginson vs. Municipality of
Murcia, 185 SCRA 1)

Q - Is reorganization of government offices a justification to abolish an office?

A - Reorganization was authorized then by President Corazon C. Aquino under and by virtue of the
Freedom Constitution, but the reorganization program, according to the Supreme Court, was never
intended to be an "automatic authority" to dismiss millions of government workers at the same stroke of
the pen.
Example:
The reorganization of the Department of Agriculture under Executive Order No. 116 was set aside for
failure to observe the guidelines in Executive Order No. 33 regarding removal of employees, thus:
1. Existence of a case for summary removal as provided in Sec. 40, Civil Service Law
2. Probable cause in violation of Republic Act No. 3019
3. Gross incompetence or inefficiency in the discharge of functions
4. Misuse of public office for partisan political activities
5. Analogous grounds showing that the incumbent is unfit to remain in the service. (Abaya vs CSC,
G.R. No. 98027, October 4, 1994)

Q - Can preventive suspension be ordered even without a hearing?

A - Yes. REASON: Because suspension is not a penalty but only a preliminary step to administrative
investigation.

Q - What are the two (2) kinds of preventive suspension of civil service employees who are
charged with offenses punishable by removal or suspension?

A-
1. Preventive suspension pending investigation. (Section 51, Book V Title I, Subtitle A of the
Administrative Code of 1987)
2. Preventive suspension pending appeal if the penalty imposed is suspension or dismissal and
after review, the respondent is exonerated under Section 47 of the said Code.

Q - The above-mentioned suspension refers to the suspension of civil service employees. Can
members of Congress be suspended?
A - Yes, by express provision of Section 16(3), Article VI of the 1987 Constitution, on the ground of
disorderly behavior. Under this provision, it is Congress that can impose suspension.

Q - Can our courts suspend members of Congress?

A - In old cases (Alejandrino vs. Quezon and Osmeña vs. Pendatum, this matter was considered
apolitical question, hence, the court refused to interfere. However, in Ceferino S. Paredes, Jr. vs.
Sandiganbayan, et al., G.R. No. 118364, the Supreme Court affirmed the suspension of Congressman
Ceferino S. Paredes, Jr. on the ground that the said suspension is based on alleged violation of R.A.
3019. The Supreme Court said.
"x x x Petitioner's invocation of Section 16(3), Article VI of the Constitution x x x is unavailing as it
appears to be quite distinct from the suspension spoken of in Section 13 of Republic Act No. 3019,
which is not a penalty but a preliminary preventive measure prescinding from the fact that the latter is

34 | P a g e
not being imposed on petitioners for misbehavior as a member of the House of Representatives." x x x
(Ceferino S. Paredes, Jr. vs. Sandiganbayan, et al., G.R. No. 118364) (Underlining Supplied)

7.13 CONVICTION OFA CRIME

Q - What automatically terminates official relationship?

A - Conviction by final judgment automatically terminates official relationship. This arises when the
penalty imposed to a public officer carries with it the accessory penalty of disqualification.

Q - A, a public officer, was administratively charged for dishonesty. Later, he was found guilty
and he was subsequently separated from the service. He was however, given a pardon. What is
the effect of the said pardon?

A - The pardon completely obliterated the adverse effects of the administrative decision. He is restored
to his office ipso facto upon the issuance of clemency and he is entitled to back wages. (Vicente Garcia
vs. Chairman, Commission on Audit, 226 SCRA 356)

Q - Is the benefit arising from the said clemency applicable simply because a person is granted
a pardon?
A - When a person is given a pardon because he did not truly commit the offense, the pardon relieves
him from all punitive consequences of his criminal act, and this restores his clean name, good
reputation and unstained character prior to the finding of guilt. If a public officer was just granted a
pardon but there is no finding that he did not truly commit the offense, the implication is that the pardon
does not completely restore the clean name, good reputation and unstained character of the said public
officer.

Q - Suppose former Joseph Ejercito Estrada was convicted in the impeachment proceeding,
what is the penalty that would have been imposed against him?
A - (1) Section 7(3), Article Xl, specifies the following effects:
a. Removal from office;
b. Disqualification to hold any office under the Republic of the Philippines;
c. In addition, the party convicted shall nevertheless be liable and subject to prosecution, trial and
punishment according to law.

Q - If President Estrada was acquitted in the impeachment proceeding, can he be subsequently

subject to prosecution, trial, conviction and punishment in the regular courts of justice?
A - No. Because the last sentence of Section 3(7), Article XI, states that it is only in case of his
conviction by the impeachment court that he shall be liable to prosecution, trial, and punishment
according to law. This means that if he is acquitted, he cannot be liable and subject to prosecution, trial,
and punishment.

Q - If President Estrada was convicted in the impeachment proceeding and thereafter criminally
prosecuted for the offense which warranted his conviction on impeachment, can he plead the
defense of double jeopardy?
A - No. As I already stated, the penalty which the Senate may impose shall be limited to removal from
office and disqualification to hold any office under the Republic of the Philippines. This penalty is
beyond the reach of the President's power of executive clemency, but does not place the officer beyond
liability to criminal prosecution. When criminally prosecuted, therefore, for the offense which warranted
his conviction on impeachment, the officer cannot plead the defense of double jeopardy.

35 | P a g e
Q - If President Estrada resigned before the rendition of judgment by the impeachment court,
does his resignation place him beyond the reach of impeachment for offenses committed
during his tenure?
A - No. REASON: While it is true that he is already resigned and can no longer be removed from his
office, there is still a penalty which can be imposed even after his resignation and that is the penalty of
"disqualification to hold any office under the Republic of the Philippines."

7.14 FILING OF CERTIFICATE OF CANDIDACY

Q - Why is the filing of certificate of candidacy a mode of terminating official relationship?

A - It is a mode of terminating official relationship by express provision of Sections 66 and 67, Batas
Pambansa Blg. 881, which provides as follows:
"Sec. 66, B.P. 881 provides: "Any person holding a public office or position, including active members
of the Armed Forces of the Philippines, and officers and employees in government -owned or controlled
corporations, shall be considered ipso facto resigned from his office upon the filing of his certificate of
candidacy."
a) In PNOC Energy Development Corporation vs. NLRC, G.R. No. 100947, May 31, 1993, it was
held that this section applies even to employees of government-owned or controlled corporations
without an original charter."
"Sec. 67, B.P. 881, provides: "Any elective official, whether national or local, running for any office other
than the one which he is holding in a permanent capacity, except for President and Vice President,
shall be considered ipso, facto resigned from his office upon the filing of his certificate of candidacy."

8. Liability of Public Officers

Q - What is the liability of a public officer for injuries sustained by another as a result of his
official acts?
A - If a public officer performs his official acts within the scope of his official authority, he is not liable for
said injuries, unless otherwise provided by law.

Q - Same question, as aforementioned. Is he civilly liable?

A - No, unless there is a clear showing of bad faith, malice or negligence. (Section 38[1], Chapter 9,
Book I, Administrative Code of 1987)

Q - What is the liability of the subordinate officer or employee for acts done by him in good faith
in the performance of his duties?
A - He is not civilly liable but he shall be liable for willful or negligent acts done by him which are
contrary to law, morals, public policy and good customs even if he merely followed the orders or
instructions of his superiors. (Ibid.)

Q - When may a public official be held liable, on his personal capacity, for exemplary damages?
A - In the case of Sison vs. Court of Appeals, G.R. No. 124086, June 26, 2006. the Court held that by
reason of petitioner's inordinate delay, damage was caused in resolving respondent's claims. As a
public official, petitioner ought to have acted with the highest degree of excellence, professionalism,
intelligence and skill. Thus, petitioner was held liable in his personal capacity, for exemplary damages.

OTHER LIABILITIES OF A PUBLIC OFFICER

36 | P a g e
Q - What is the liability of public officers in connection with the following: (1) TORT; (2)
CONTRACTS; (3) ACTS OF THEIR SUBORDINATE
A–
1. FOR TORTS - Unauthorized acts of government officials are not acts of the State, hence, a
public officer may be personally liable for damages for such unauthorized acts.

Q - A public officer claims that he merely performed acts in connection with his official duties.
Can he be held personally accountable for his said acts?
A - No, unless it is proven that he acted in ultra vires, or in bad faith.
Example: Dismissing employees on account of partisan political reasons (Rama vs. Court of Appeals,
148 SCRA 496)
2. FOR CONTRACTS - A public officer who acted without authority or in excess of his authority
shall be personally liable on contracts he enters into. If he acted within the scope of his authority
and in his official capacity, he is not personally liable on contracts he executed in behalf of the
government unless he expressly and unequivocally agrees to be bound.
3. FOR ACTS OF SUBORDINATES - (1) Where there being charged with the duty of employing
or retaining his subordinates, he negligently or willfully employs or retains unfit or improper
persons; (2) Where, being charged with the duty to see that they are appointed or qualified in a
proper manner, he negligently or willfully fails to require of them the due conformity to the
prescribed regulations; (3) Where he so carelessly or negligently oversees, conducts or carries
the business of his office as to furnish the opportunity for the default; or
4. And fortiori when he has directed, authorized, or cooperated in the wrong. (Mechem, Pub. Off,
Section 790)

16. EIGHT (8) OTHER ANCILLIARY PRINCIPLES

a) Preference for appointment to new position
b) Can a person be compelled to accept an office?
c) Presidential power of appointment
d) Authority to determine the kind or nature of appointment
e) Revocation of appointment of CSC
f) Meaning of the term qualification
g) Determination through competitive examination
h) Hold over rule

EXPLANATION OF EACH ANCILLIARY PRINCIPLE

1. Preference for appointment to new position
Section 4 of Republic Act No. 6656 provides: "Officers and employees holding permanent
appointments shall be given preference for appointment to the new positions in approved staffing
pattern comparable to their former positions or in case there are not enough comparable positions, to
positions next lower in rank. (Torio vs. Civil Service Commission, G.R. No. 99336; Espanola vs. Civil
Service Commission, G.R. 100178, June 9, 1992, En Banc, Gutierrez, Jr., J.)
REASON: The preference given to permanent employees assumes that employees working in a
Department for longer periods have gained not only superior skills but also greater dedication to the
public service. (Ibid.)

2. Can a person be compelled to accept an office?

A - No. REASON: There is no law which can compel a person to accept an office except as may be
required under Section 4, Article II of the 1987 Constitution which provides as follows: "Section 4. The
prime duty of the Government is to serve and protect the people. The Government may call upon the

37 | P a g e
people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions
provided by law, to render personal military or civil service."

3. Presidential power of appointment

1. The President shall nominate and, with the consent of the Commission on Appointments,
appoint the heads of the executive departments, ambassadors, other public ministers and
consuls, or officers of the armed forces from the rank of colonel or naval captain, and other
officers whose appointments are vested in him in this Constitution. He shall also appoint all
other officers of the Government whose appointments are not otherwise provided by law, and
those whom he may be authorized by law to appoint. The Congress may, by law, vest the
appointment of other officers lower in rank in the President alone, in the courts; or in the heads
of departments, agencies, commissions, or boards.

The President shall have the power to make appointments during the recess of the Congress,
whether voluntary or compulsory, but such appointments shall be effective only until disapproval
by the Commission on Appointments or until the next adjournment of the Congress.

2. The spouse and relatives by consanguinity or affinity within the fourth civil degree of the
President shall not during his tenure be appointed as members of the Constitutional
Commissions, or to the Office of the Ombudsman, or as secretaries, undersecretaries, chairman
or heads of bureaus or offices including government-owned or controlled corporations and their
subsidiaries. (Section 13, 2nd paragraph, Article VII, 1987 Constitution)
3. 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.
4. Appointments of an Acting President shall remain effective, unless revoked by the elected
President within 90 days from his assumption or re-assumption of office. (Section 14, Article VII)
5. The appointees of the President must possess the required qualifications. The appointee
concerned may be questioned in appropriate court proceedings.

4. Authority to determine the kind or nature of appointment

The Civil Service Commission is not empowered to determine the kind or nature of the appointment
extended by the appointing power. What it can do is only either to approve or review the appointment to
see to it that the requirements of the Civil Service Commission are complied with. When all legal
requirements are complied with and the appointee is qualified what the Civil Service Commission has to
do is only to attest to the appointment. (Luego vs. Civil Service Commission, 143 SCRA 327)
Much later, in Lopez vs. Civil Service Commission (G.R. No. 92140, February 19, 1991), the Supreme
Court ruled that what the Civil Service Commission may do is just to determine whether or not the
appointee possesses the qualifications and requisite eligibility. If the appointee is qualified and eligible,
his appointment is approved, and if not, his appointment is disapproved.
A month after the decision in Lopez vs. Civil Service Commission, the Supreme Court elucidated further
the ruling in Lopez and said: "As long as the appointee possesses the minimum qualifications
prescribed by law or regulations, there is no question that his appointment must be respected by the
Civil Service Commission even if it be proved that there are others with superior credentials. However,
this rule does not cover those cases where it is found by the Commission, after examining the
appointment papers, that the appointee does not satisfy the minimum qualifications for the position in
question. In these cases, the Commission would be well within its right - and responsibility - in refusing
to approve the appointment." (Cortez vs. Civil Service Commission, G.R. No. 92673, March 13, 1991,
En Banc, Cruz, J.)

5. Revocation of appointment by CSC

38 | P a g e
The Supreme Court ruled: "The Civil Service Commission has no authority to revoke an appointment
simply because it is believed that another is better qualified than the appointee for that would have
constituted an encroachment of the discretion vested solely in the appointing authority. The
Commission cannot exceed its power by substituting its will for that of the appointing authority. (Lopez
vs. Civil Service Commission, G.R. No. 92140, February 19, 1991, En Banc, Gutierrez, Jr., J.)

6. Meaning of term qualification

It is understood in different senses: (1) It may refer to the qualities or endowments required of the public
officer in order that he may be considered eligible for public office (i.e., age, citizenship, and academic
qualifications); (2) It may refer to the act of enabling a person to perform the duties and functions of his
office (i.e., taking the oath of office)
In the first one, the person appointed or elected must possess the prescribed qualifications at the time
of his appointment or election and during the period of the official relationship.
In the second, the failure to perform an act required by law could affect the officer's title to the given
office. An oath of office is a qualifying requirement for a public office (Lecaroz vs. Sandiganbayan, G.R.
No. 130872, March 25, 1999). Under Batas Pambansa Blg. 881, Section 11, thereof, it is provided that
"the office of any official elected who fails or refuses to take his oath office within six months from his
proclamation shall be considered vacant, unless said failure is for a cause or causes beyond his
control. [Example: (1) Taking an oath or affirmation to uphold and defend the Constitution; (2)
Accountable officers are required to be properly bonded]

7. Determination through competitive examination

The following are exempted from the requirement of competitive examinations:
1. Policy-determining position - A position held by one whose duty is to formulate policies and
guidelines of the government.
2. Primarily confidential position - A position held by one in whom personal trust and confidence
is reposed by the appointing power.
3. Highly technical position - A position held by one possessing superior technical training

8. Hold-over rule

It is a rule which declares that in the absence of an express or implied constitutional or statutory
provisions prohibiting hold-over, an officer is entitled to hold his office until his successor is appointed
and qualified. This rule prevents disruption of public service in the meantime that a successor is not yet
appointed and qualified to assume the functions of the office.

PLAZA VS. CASSION, ET AL.

G.R. NO. 136809, JULY 27, 2004

Being dropped from the roll of employees without prior notice is not a disciplinary measure.
Change of respondents' place of work from the original CSSDO office to the DSWD building is not a
transfer. It is merely a physical transfer.
FACTS:
Prior to the enactment of the Local Government Code (R.A. No. 7160), delivery of social services was
dispensed by the national government through the DSWD. Upon the promulgation of the said law,
some of DSWD's functions were transferred to the local government units. The City of Butuan passed
resolutions and orders reconstituting the City Social Services Department Office devolving and
transferring thereto 19 DSWD employees. Their office was transferred from the original CSSDO
Building to the DSWD Building. The respondents who composed the original CSSDO refused to report
to work despite the orders of the Mayor. After an administrative investigation, they were charged

39 | P a g e
administratively for grave misconduct and were preventively suspended for 60 days. Upon the
recommendation of the CSC, the Mayor of Butuan City dropped the respondents from the roll of
employees without prior notice.
ISSUE:
1. Were the respondents denied due process on the ground that they were dropped from the roll of
employees without prior notice?
2. Is the order of preventive suspension a violation of respondent's security of tenure as they were
transferred from one office to another?
HELD:
1. The dropping from the rolls of private respondents is not disciplinary in nature in accordance with the
Memorandum Circular No. 38 of the Civil Service Commission, Series of 1993 and the ruling of the
CSC. Since the dropping from the rolls is not an administrative sanction, there was no violation of due
process and it is not necessary that they should be notified or heard.
2. The change of respondents' place of work from the original CSSDO office to the DSWD building is
not a transfer. It was only a physical transfer of their office to a new one done in the interest of public
service. There were no new movements or appointments from one position to another. Transfer is a
movement from one position to another which is of equivalent rank, level or salary without break in
service and may be imposed as an administrative penalty.

CSC VS. SATURNINO DE LA CRUZ

G.R. NO. 158737, AUGUST 31, 2004

The final choice of the appointing authority should be respected and left undisturbed. Judges should not
substitute their judgment for that of the appointing authority. The power to appoint is in essence
discretionary on the part of the proper authority.
FACTS:
The respondent was promotionally appointed as Chief of the Aviation Safety Regulation Office, Air
Transportation Office (ATO) . Prior to this appointment, he was a Check Pilot II in the ATO. He passed
the rigid screening of the ATO personnel Selection/Promotion Board as well as the corresponding oral
and written examination. However, it was claimed that respondent did not meet the 4-year supervisory
requirement for the said position. The Civil Service Commission disapproved his appointment. The
Court of Appeals reversed the decision of the Civil Service Commission.
ISSUE:

Is the appellate court correct in setting aside and in reversing the decision of the Civil Service
Commission?
HELD:
1. The appellate court is correct REASON: The rule that appointees must possess the prescribed
mandatory requirements cannot be so strictly interpreted as to curtail the agency's discretionary
power to appoint, as long as the appointee possesses the other qualifications required by law,
considering that the respondent's total work experience is sufficient to meet the supervisory
standards thereby finding respondent qualified for appointment to the contested position.
2. Respondent's promotional appointment was issued in accordance with the petitioner's selection
process. Respondent passed the rigid screening of the ATO personnel Selection/Promotion
Board as well as the oral and written examinations of the DOTC Selection Board.
3. Respondent's multifarious experience and trainings in the air transportation were taken into
account when he was chosen for the subject position.
4. It is elementary in the law of the public officers that the power to appoint is in essence
discretionary on the part of the proper authority. Consequently, the appointing authority has the
right of choice which he may exercise freely according to his best judgment, deciding for himself
who is best qualified among those who have the necessary qualifications and eligibilities. The

40 | P a g e
 final choice of the appointing authority should be respected and left undisturbed. Judges should
not substitute their judgment for that of the appointing authority.

JOSE M. CARINGAL VS. PCSO

G.R. NO. 161942, OCTOBER 13, 2005

An appointee to the civil service is entitled to security of tenure only if he possesses the appropriate
civil service eligibility. Not being in possession of the required CES eligibility, petitioner has no security
of tenure.
It could be withdrawn at will by the appointing authority and "at a moment's notice," conformably to
established jurisprudence.
FACTS:
Atty. Jose Caringal was appointed Assistant Department Manager II in PCSO's legal Department.
When a new PCSO chairman was appointed, Atty. Caringal was appointed to the Assets and
Investments Department. Atty. Caringal contested his reassignment as a constructive dismissal.
Thereafter, he filed an administrative complaint for constructive dismissal and culpable violation of the
Constitution on civil service appointments. Subsequently, the PCSO Board of Directors issued a
resolution terminating Atty. Caringal's employment on the ground that he does not possess Career
Executive Service Eligibility. Thereafter, he was informed that his temporary appointment as Assistant
Manager II is terminated. The CSC, in the meantime dismissed petitioner's complaint for constructive
dismissed on the ground that he does not enjoy security of tenure and his appointment is temporary in
nature and he may be replaced with one who has Career Executive Service Eligibility. He appealed to
the Court of Appeals which affirmed the decision of the CSC. Atty. Caringal appealed to the Supreme
Court.
RULING:

An appointee to the civil service is entitled to security of tenure only if he possesses the appropriate
civil service eligibility. Not being in possession of the required CES eligibility, petitioner has no security
of tenure.
There is no question that petitioner does not possess the required CES eligibility. Hence, he has no
security of tenure as his appointment is merely temporary. To be sure, his appointment did not attain
permanency. Such being the case, it can be withdrawn from him anytime without violating the
constitutionally guaranteed right to security of tenure.
In Achacoso vs. Macaraig (195 SCRA 235 [1991]) we held:
It is settled that a permanent appointment can be issued only "to a person who meets all the
requirements for the position to which he is being appointed, including the appropriate eligibility
prescribed." Achacoso did not. At best, therefore, his appointment could be regarded only as
temporary. And being so, it could be withdrawn at will by the appointing authority and "at a moment's
notice," conformably to established jurisprudence

DOH VS. COMPASANO

G.R. NO. 157684, APRIL 27, 2005

The actual exercise of the disciplining authority's prerogative requires a prior independent consideration
of the law and facts. Failure to comply with this requirement results in an invalid decision.
FACTS:
The resident Ombudsman in the Department of Health conducted an investigation regarding alleged
anomalous purchases made by the respondents. The Secretary of Health filed a formal charge against
the respondents. Thereafter, the Executive Secretary issued an administrative order creating an Ad
Hoc Committee to investigate the administrative case filed against said respondents. The same was
indorsed by the Presidential Commission Against Graft and Corruption, which took over the

41 | P a g e
investigation from the Department of Health and resolved the case by recommending the dismissal of
the respondents. Pursuant to the said resolution of PCGG, the Secretary of Health dismissed the
respondents.
ISSUE:
1. Is the dismissal valid and justified?
HELD:

1. Non-compliance with the sixth requisite is evident from the Health Secretary's order dismissing the
respondents. The Health Secretary has the competence and the authority to decide what action should
be taken against officials and employees who have been administratively charged and investigated.
However, the actual exercise of the disciplining authority's prerogative requires a prior independent
consideration of the law and facts.
Failure to comply with this requirement results in an invalid decision. The disciplining authority should
not merely and solely rely on an investigator's recommendation, but must personally weigh and assess
the evidence gathered.
2. Due process in administrative proceedings requires compliance with the following cardinal principles:
(1.) the respondents' right to hearing, which includes the right to present one's case and submit
supporting evidence, must be observed; (2.) the tribunal must consider the evidence presented: (3) the
decision must have some basis to support itself; (4) there must be substantial evidence; (5.) the
decision must be rendered on the evidence presented at the hearing, or at least contained in the record
and disclosed to the parties affected; (6) in arriving at a decision, the tribunal must have acted on its
own consideration of the law and facts of the controversy and must not have simply accepted the views
of a subordinate; and (7) the decision must be rendered in such manner that respondents would know
the reasons for it and the various issues involved.
NOTE: It is the sixth requisite, as aforementioned, which was not complied with.

ATTY LELU P. CONTRERAS VS. TERESITA O. MONGE

A.M. NO. P-05 2040, JANUARY 24, 2006

Monge's failure to notify her office of her absences is sufficient cause to discipline respondent. The Civil
Service Rules require that in case of absence because of sickness, the employee is required to give
notice of absence to the immediate supervisor and/or the agency head.
FACTS:
Complainant alleged that respondent, Clerk IV in the Regional Trial Court of Iriga City, verbally
assaulted her on July 20, 2000, a few days after respondent returned from a long absence from office.
On that day, Executive Judge Ernesto B. Amisola came to complainant's office. It was on this occasion
when respondent complained to said Judge about a memorandum the complainant issued to
respondent. Complainant heard respondent and tried to butt in but respondent prevented her and told
her to shut up. Respondent continued her verbal tirage even after Judge Amisola left complainant's
office. Thereafter, respondent left the office loudly uttering "Di ako makipag-level kanino ta pagtaod mo
pirmi ikang tama!" (I will never level with you because you think you are always right!)
The above- mentioned memorandum was issued by complainant to respondent on July 11, 2000
because of the latter's failure to give official notice of her sick leave of absence for a period of four
weeks. Instead of acknowledging her fault, respondent mockingly stated that she received a
memorandum instead of a get well card. When she finally came back to work she did not report to
complainant personally.
The investigating Judge submitted a report finding no evidence of gross insubordination or disrespect,
but only a failure on the part of respondent to give notice of her absence to complainant or the office.
He also found that the alleged alteration of respondent's performance rating was valid and not without
authority and that complainant did not commit any misconduct towards Judge Agawa. Complainant,

42 | P a g e
however, admitted that she cross-stitched during break time and lull hours and that she directed
employee Eleno Gonzales to do unofficial work.
The Office of the Court Administrator, concurring with the findings of the Investigating Judge,
recommended that respondent be reprimanded and sternly warned of more severe penalty in case of
repetition of her violation of the Civil Service Rules for failing to give notice of her absence, and that
complainant, for directing her subordinate to do extra work during office hours, be advised to be more
circumspect in the performance of her duties.
RULING:
We agree with the Court Administrator and the Investigating Judge that Monge's failure to notify her
office of her absences is sufficient cause to discipline respondent. The Civil Service Rules require that
in case of absence because of sickness, the employee is required to give notice of absence to the
immediate supervisor and/or the agency head. Since application for sick leave is filed after the absent
employee returns to work, the office concerned should at least be properly notified of the absence due
to an illness. Respondent Monge neither made a call to notify the office nor she did she have someone
inform the office about her absence. She only made the call after the memorandum was sent to her. It
was only when her co-workers brought some documents to her house for her to sign that they learned
she was sick.
Clearly, respondent failed to comply with the notice of absence required by the Rules. Considering that
her failure is only a light offense, the imposable penalty is a reprimand, with warning that a more severe
penalty will be imposed should she repeat the offense or commit a similar offense.

MULTIPLE CHOICE QUESTIONS

1. Nature of an ad-interim appointment
A. It is a temporary appointment
B. It is an appointment made while Congress is not in session, hence, it is still subject to the
confirmation of the Commission on Appointments, and therefore it is not yet a permanent
appointment.
C. An ad-interim appointment has no fixed term of office and employment and can be terminated at
the pleasure of the appointing authority, it is still therefore of a temporary nature.
D. An ad-interim appointment is permanent in nature, and the circumstance that it is subject to the
confirmation by the Commission on Appointments does not alter its permanent character.
2. Is the Civil Service Commission authorized to determine the kind or nature of the appointment
extended by the appointing officer, or will it just attest to the appointment in accordance with the Civil
Service Law.
A. When all the legal requirements are complied with and the appointee is qualified, what the Civil
Service has to do is only to attest to the appointment.
B. The function of the Civil Service Commission is precisely to see to it that the appointee is
qualified and eligible, hence, it has the authority to do both.
C. As long as the appointee possesses the minimum qualifications prescribed by law or
regulations, there is no question that his appointment must be respected by the Civil Service
Commission even if it be proved that there are others with superior credentials.
D. In cases where it is found by the Commission, after examining the appointment papers. that the
appointee does not satisfy the minimum qualifications for the position in question the
Commission would be well within its right and responsibility in refusing to approve the
appointment.
3. Mr. A was not validly appointed, he is not eligible, and he occupies a legitimate office. Is he a de jure
or de facto officer.
A. He is a de jure officer as long as nobody is questioning his appointment.
B. He is a de jure officer because he occupies a legitimate office.
C. He is neither a de jure nor a de facto officer because he was not validly appointed.

43 | P a g e
 D. He is a de facto officer because he is in possession of the office under color of right, without
being legally qualified to act!
4. Can a de facto officer claim salary or compensation?
A. Not having a good title, he cannot claim salary or compensation.
B. He can claim salary or compensation if there is no de jure public officer.
C. He can claim salary or compensation and even allowances because that is what our
Constitution provides for one position.
D. He can claim salary or compensation because it is iniquitous to deny the salary due to a de
facto officer for services he actually rendered.
5. Mr. A was validly appointed but the office itself to which he was appointed is void. Is he a de jure or
de facto officer?
A. He is a de jure officer because he was validly appointed.
B. He is a de facto officer because the office itself to which he was appointed is void.
C. He is a de jure officer until his appointment is declared void by the court.
D. He is neither a de facto officer nor a de jure officer for no office at all exists.
6. Suppose there is an EDSA PEOPLE POWER III, and the newly elected President calls for a revamp
of his cabinet. Constitutional officers A & B submitted courtesy resignations. Constitutional officers E &
F, refused to vacate their positions. What is the legal effect of all these developments?
A. Upon the successful conclusion of EDSA PEOPLE POWER III, all the terms of these
Constitutional Officers are deemed expired.
B. Upon the successful conclusion of EDSA PEOPLE POWER III, the new President can appoint
new Constitutional Officers to replace the former Constitutional Officers.
C. Upon the successful conclusion of EDSA PEOPLE POWER III, the courtesy resignations of A &
B resulted in the expiration of their terms. The new President may request C & D to submit their
courtesy resignations, but if they refuse to do so, the new President may appoint new ones to
replace them on the theory that the successful conclusion of EDSA PEOPLE
D. POWER III gives him a mandate to effect the changes in government as he may deem
necessary and proper and which he thinks will be advantageous to the government and to the
country as a whole.

44 | P a g e