1

EN BANC

[G.R. No. 131136. February 28, 2001.]

CONRADO L. DE RAMA, Petitioner, v. THE COURT OF APPEALS (NINTH

DIVISION, THE CIVIL SERVICE COMMISSION), ELADIO MARTINEZ, DIVINO DE
JESUS, MORELL AYALA, ARISTEO CATALLA, DAISY PORTA, FLORDELIZA
ORIASEL, GRACIELA GLORY, FELECIDAD ORINDAY, MA. PETRA MUFFET LUCE,
ELSA MARINO, BERNARDITA MENDOZA, JANE MACATANGAY, ADELFO
GLODOVIZA and FLORINO RAMOS, Respondents.

DECISION

YNARES-SANTIAGO, J.:

Upon his assumption to the position of Mayor of Pagbilao, Quezon, petitioner Conrado L.
de Rama wrote a letter dated July 13, 1995 to the Civil Service Commission (or CSC),
seeking the recall of the appointments of fourteen (14) municipal employees, namely:
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NAME POSITION DATE OF

APPOINTMENT

Eladio Martinez Registration Officer I June 1, 1995

Divino de Jesus Bookbinder III June 1, 1995

Morell Ayala Accounting Clerk III June 16, 1995

Daisy Porta Clerk IV June 27, 1995

Aristeo Catalla Gen. Services Officer June 19, 1995

Elsa Marino Mun. Agriculturist June 19, 1995

Gracella Glory Bookkeeper II June 27, 1995

Ma. Petra Muffet Lucce Accounting Clerk III June 27, 1995

Felicidad Orindag Accounting Clerk II June 27, 1995

Bernardita Mendoza Agricultural Technologist June 27, 1995

Flordeliza Oriazel Clerk I June 27, 1995

Jane Macatangay Day Care Worker I June 27, 1995

Adolfo Glodoviza Utility Worker II June 27, 1995

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Florencio Ramos Utility Foreman June 27, 1995 1

Petitioner de Rama justified his recall request on the allegation that the appointments
of the said employees were "midnight" appointments of the former mayor, Ma. Evelyn
S. Abeja, done in violation of Article VII, Section 15 of the 1987 Constitution, which
provides:chanrob1es virtual 1aw library

SECTION 15. 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. (Emphasis supplied)

While the matter was pending before the CSC, three of the above-named employees,
namely: Elsa Marino, Morell Ayala, and Flordeliza Oriazel, filed with the CSC a claim for
payment of their salaries, alleging that although their appointments were declared
permanent by Conrado Gulim, Director II of the CSC Field Office based in Quezon,
petitioner de Rama withheld the payment of their salaries and benefits pursuant to
Office Order No. 95-01, which was issued on June 30, 1995, wherein the appointments
of the said fourteen (14) employees were recalled. chanrob1es virtua1 1aw 1ibrary

Based on the documents submitted by Marino, Ayala and Oriazel, the Legal and Quasi-
Judicial Division of the CSC issued an Order 2 finding that since the claimants-
employees had assumed their respective positions and performed their duties pursuant
to their appointments, they are therefore entitled to receive the salaries and benefits
appurtenant to their positions. Citing Rule V, Section 10 of the Omnibus Rules 3 which
provides, in part, that "if the appointee has assumed the duties of the position, he shall
be entitled to receive his salary at once without awaiting the approval of his
appointment by the Commission," the CSC Legal and Quasi-Judicial Division ruled that
the said employees cannot be deprived of their salaries and benefits by the unilateral
act of the newly-assumed mayor.

On April 30, 1996, the CSC denied petitioner’s request for the recall of the
appointments of the fourteen employees, for lack of merit. The CSC also cited Rule V,
Sections 9 and 10 of the Omnibus Rules, and declared that the appointments of the
said employees were issued in accordance with pertinent laws. Thus, the same were
effective immediately, and cannot be withdrawn or revoked by the appointing authority
until disapproved by the CSC. The CSC also dismissed petitioner’s allegation that these
were "midnight" appointments, pointing out that the Constitutional provision relied
upon by petitioner prohibits only those appointments made by an outgoing President
and cannot be made to apply to local elective officials. Thus, the CSC opined, "the
appointing authority can validly issue appointments until his term has expired, as long
as the appointee meets the qualification standards for the position." 4

The CSC upheld the validity of the appointments on the ground that they had already
been approved by the Head of the CSC Field Office in Lucena City, and for petitioner’s
failure to present evidence that would warrant the revocation or recall of the said
appointments.

Petitioner moved for the reconsideration of the CSC’s Resolution, as well as the Order of
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the CSC Legal and Quasi-Judicial Division, averring that the CSC was without
jurisdiction: (1) to refuse to revoke the subject appointments; and (2) to uphold the
validity of said appointments, even assuming that there was failure to present evidence
that would prove that these appointments contravened existing laws or rules. He also
posited that the CSC erred in finding the appointments valid despite the existence of
circumstances showing that the same were fraudulently issued and processed.

On November 21, 1996, the CSC denied petitioner’s motion for reconsideration. The
CSC reiterated its ruling that:
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In the absence of any showing that these alleged midnight appointments were defective
in form and in substance, nor is there evidence presented to show that subject
appointments were issued in contravention of law or rules, these appointments are
deemed valid and in effect.

x          x           x

Mayor de Rama failed to present evidence that subject appointments should be revoked
or recalled because of any of the above-mentioned grounds enumerated. As a matter of
fact, said appointments were even approved by the Head, Civil Service Field Office,
Lucena City when submitted for attestation. In the absence of a clear showing that
these appointments were issued in violation of any of these grounds, the Commission
has no other recourse but to uphold their validity. (Emphasis supplied)

The CSC also cited the Supreme Court ruling in the case of Aquino v. Civil Service
Commission, 5 wherein this Court held that: chanrob1es virtual 1aw library

It is well-settled that once an appointment is issued and the moment the appointee
assumes a position in the civil service under a completed appointment, he acquires a
legal, not merely equitable right (to the position), which is protected not only by
statute, but also by the Constitution, and cannot be taken away from him either by
revocation of the appointment, or by removal, except for cause, and with previous
notice and hearing. (Emphasis supplied)

Consequently, petitioner filed a petition for review before the Court of Appeals, arguing
that the CSC arrived at the erroneous conclusion after it ignored his "supplement to the
consolidated appeal and motion for reconsideration" wherein he laid out evidence
showing that the subject appointments were obtained through fraud. chanrob1es virtua1 1aw 1ibrary

After reviewing the facts and issues raised by petitioner, the Court of Appeals issued a
Resolution 6 dated May 16, 1997 which held that there was no abuse of the power of
appointment on the part of the outgoing mayor.

The Court of Appeals further held that the fact that the appointments of Marino, Ayala,
Ramos, Mendoza and Glory were made more than four (4) months after the publication
of the vacancies to which they were appointed is of no moment. Setting aside
petitioner’s suppositions, the Court of Appeals ruled that Republic Act No. 7041 does
not provide that every appointment to the local government service must be made
within four (4) months from publication of the vacancies. It cited Section 80 of said Act,
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to wit: chanrob1es virtual 1aw library

SECTION 80. Public Notice of Vacancy: Personnel Selection Board. — (a) Whenever a
local chief executive decides to fill a vacant career position, there shall be posted
notices of the vacancy in at least three (3) conspicuous public places in the local
government unit concerned for a period of not less than fifteen (15) days.

(b) There shall be established in every province, city or municipality a personnel

selection board to assist the local chief executive in the judicious and objective selection
of personnel for employment as well as for promotion, and in the formulation of such
policies as would contribute to employee welfare.

(c) The personnel selection board shall be headed by the local sanggunian concerned. A
representative of the Civil Service Commission, if any, and the personnel officer of the
local government unit concerned shall be ex officio members of the board. 7

Likewise, neither did the CSC’s own Circular Order No. 27, Section 7, Series of 1991,
require that vacant positions published in a government quarterly must be filled up
before the advent of the succeeding quarter.

On the basis of all the foregoing findings, the Court of Appeals denied for lack of merit
the petition for review.

Petitioner filed a motion for reconsideration arguing that the appellate court erred in
upholding the CSC’s resolutions despite the following defects: chanrob1es virtual 1aw library

I. No screening process and no criteria were adopted by the Personnel Selection Board
in nominating the respondents;

II. No posting in three (3) conspicuous public places of notice of vacancy as required by
the rules and the law;

III. Merit and fitness requirements were not observed by the selection board and by the
appointing authority as required by the Civil Service rules;

IV. Petitioner has valid grounds to recall the appointments of respondents. 8

In a Resolution dated October 20, 1997, the Court of Appeals denied the motion for
reconsideration.

Hence, the instant petition for review on certiorari on the following assigned errors: chanrob1es virtua1 1aw 1ibrary

I. THE PUBLIC RESPONDENT COURT OF APPEALS, GRAVELY AND SERIOUSLY ERRED IN

FINDING THAT THE CIVIL SERVICE COMMISSION WAS CORRECT IN NOT UPHOLDING
THE PETITIONERS RECALL OF THE APPOINTMENTS OF PRIVATE RESPONDENTS IN THE
FACE OF FRAUD AND VIOLATION OF RULES AND LAWS ON ISSUANCE OF
APPOINTMENTS.

II. THE PUBLIC RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT
THE PARTICULAR GROUNDS NAMELY: chanrob1es virtual 1aw library
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I. No screening process and no criteria were adopted by the Personnel Selection Board
in nominating the respondents;

II. No posting in three (3) conspicuous public places of notice of vacancy as required by
the rules and the law;

III. Merit and fitness requirements were not observed by the selection board and by the
appointing authority as required by the Civil Service rules;

IV. Petitioner has valid grounds to recall the appointments of respondents.

ARE NEW ISSUES BECAUSE THE GROUNDS FOR RECALL OF THE APPOINTMENTS BY
THE PETITIONER WERE PRECISELY THE VIOLATION OF LAWS AND REGULATIONS ON
ISSUANCE OF APPOINTMENTS AS RAISED BEFORE THE RESPONDENT CIVIL SERVICE
COMMISSION.

Petitioner assails the findings of both the CSC and the Court of Appeals for being
contrary to law and not being supported by the evidence on record. chanrobles virtuallawlibrary

This argument is too specious to be given credence. The records reveal that when the
petitioner brought the matter of recalling the appointments of the fourteen (14) private
respondents before the CSC, the only reason he cited to justify his action was that
these were "midnight appointments" that are forbidden under Article VII, Section 15 of
the Constitution. However, the CSC ruled, and correctly so, that the said prohibition
applies only to presidential appointments. In truth and in fact, there is no law that
prohibits local elective officials from making appointments during the last days of his or
her tenure. Petitioner certainly did not raise the issue of fraud on the part of the
outgoing mayor who made the appointments. Neither did he allege that the said
appointments were tainted by irregularities or anomalies that breached laws and
regulations governing appointments. His solitary reason for recalling these
appointments was that they were, to his personal belief, "midnight appointments"
which the outgoing mayor had no authority to make.

Even in petitioner’s consolidated appeal and motion for reconsideration, he did not
make any assertion that these appointments were violative of civil service rules and
procedures. Indeed, he harped on the CSC’s alleged lack of jurisdiction to refuse to
recall the subject appointments. After first invoking the authority of the CSC to approve
or affirm his act, he then contradicted himself by arguing that the CSC had no
jurisdiction to do so, but only after the CSC had ruled that the recall was without legal
basis. He emphasized that he alone has sole discretion to appoint and recall the
appointment of municipal employees, an authority which, he stressed, the CSC cannot
usurp. Yet, nowhere in said pleading did he cite any other ground, much less present
proof that would warrant the recall of said appointments.

Perhaps realizing the weakness of his arguments, albeit belatedly, petitioner filed a
supplement to the appeal and motion for reconsideration where, for the very first time,
he alleged that the appointments were fraught with irregularities for failing to comply
with CSC rules and regulations. Nevertheless, the CSC overruled petitioner’s assertions,
holding that no new evidence had been presented to warrant a reversal of its earlier
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resolution.

Thus, in a petition for review before the Court of Appeals, petitioner questioned the
CSC’s conclusion because it had ignored the allegations and documents he presented in
the supplement to his earlier consolidated appeal and motion for reconsideration. He
argued that these form part of the records of the case and that the CSC erred in failing
to consider the assertions he raised therein. The appellate court, however, agreed with
the CSC when it ruled that the documents presented by petitioner in the supplemental
pleading did not constitute "new evidence" that would convince the CSC to reverse its
earlier ruling. In fine, the Court of Appeals, as did the CSC, simply dismissed
petitioner’s allegations and documents attached to the supplemental pleading for they
did not constitute new evidence that a court, board or tribunal may entertain.

Herein lies the inconsistency of petitioner’s arguments. He faults the Court of Appeals
and the CSC for ignoring his supplemental pleading, while at the same time arguing
that the grounds for recall such as violations of laws and regulations on issuance of
appointments are not new issues because he had timely raised them before the CSC.

There is no question that parties may file supplemental pleadings to supply deficiencies
in aid of an original pleading, but which should not entirely substitute the latter. 9 The
propriety and substance of supplemental pleadings are prescribed under Rule 10,
Section 6 of the 1997 Rules of Civil Procedure, which provides: chanrob1es virtua1 1aw 1ibrary

SECTION 6. Supplemental Pleadings. — Upon motion of a party the court may, upon
reasonable notice and upon such terms as are just, permit him to serve a supplemental
pleading setting forth transactions, occurrences or events which have happened since
the date of the pleading sought to be supplemented. The adverse party may plead
thereto within ten (10) days from notice of the order admitting the supplemental
pleading.

Supplemental pleadings must be with reasonable notice, and it is discretionary upon the
court or tribunal to allow the same or not. Thus, the CSC was under no obligation to
admit the supplemental pleading, or even to consider the averments therein.

Secondly, a supplemental pleading must state transactions, occurrences or events

which took place since the time the pleading sought to be supplemented was filed. In
the instant case, petitioner alleged fraud and irregularities that supposedly occurred
contemporaneous to the execution of the appointments. They should have been raised
at the very first opportunity. They are not new events which petitioner could not have
originally included as grounds for the recall of the appointments.

Accordingly, the CSC, as well as the Court of Appeals, found that the allegations in his
supplemental pleading did not constitute "new evidence" that can be the proper subject
of a supplemental pleading. These were old facts and issues which he failed to raise
earlier. Consequently, the CSC and the Court of Appeals did not err in refusing to give
credence to the supplemental pleading.

Be that as it may, these alleged irregularities were considered by the CSC and the
Court of Appeals as new issues which were raised for the first time on appeal. It is
rather too late for petitioner to raise these issues for the first time on appeal. It is well-
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settled that issues or questions of fact cannot be raised for the first time on appeal. 10
We have consistently held that matters, theories or arguments not brought out in the
original proceedings cannot be considered on review or appeal where they are raised
for the first time. 11 To consider the alleged facts and arguments raised belatedly in the
supplemental pleading to the appeal at this very late stage in the proceedings would
amount to trampling on the basic principles of fair play, justice and due process. 12

The grounds for the recall of the appointments that petitioner raised in his
supplemental pleading to the consolidated appeal and motion for reconsideration are
that: (1) the rules on screening of applicants based on adopted criteria were not
followed; (2) there was no proper posting of notice of vacancy; and (3) the merit and
fitness requirements set by the civil service rules were not observed. These are grounds
that he could have stated in his order of recall, but which he did not. Neither did he
raise said grounds in original appeal, but only by way of a supplemental pleading.
Failure of the petitioner to raise said grounds and to present supporting documents
constitute a waiver thereof, and the same arguments and evidence can no longer be
entertained on appeal before the CSC, nor in the Court of Appeals, and much less in a
petition for review before the Supreme Court. 13 In fine, the raising of these factual
issues for the first time in a pleading which is supplemental only to an appeal is barred
by estoppel. 14

Petitioner asks this Court to appreciate and consider these factual issues. It must be
recalled that the jurisdiction of the Supreme Court in a petition for review
on certiorari under Rule 45 of the Revised Rules of Court is limited to reviewing only
errors of law, not of fact. 15 That is, of course, unless the factual findings assailed by
petitioner are devoid of support by the evidence on record or the impugned judgment is
based on a misapprehension of facts. 16

A thorough perusal of the records reveal that the CSC’s ruling is supported by the
evidence and the law. The fourteen (14) employees were duly appointed following two
meetings of the Personnel Selection Board held on May 31 and June 26, 1995. There is
no showing that any of the private respondents were not qualified for the positions they
were appointed to. Moreover, their appointments were duly attested to by the Head of
the CSC field office at Lucena City. By virtue thereof, they had already assumed their
appointive positions even before petitioner himself assumed his elected position as
town mayor. Consequently, their appointments took effect immediately and cannot be
unilaterally revoked or recalled by petitioner.
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It has been held that upon the issuance of an appointment and the appointee’s
assumption of the position in the civil service, "he acquires a legal right which cannot
be taken away either by revocation of the appointment or by removal except for cause
and with previous notice and hearing" 17 Moreover, it is well-settled that the person
assuming a position in the civil service under a completed appointment acquires a legal,
not just an equitable, right to the position. This right is protected not only by statute,
but by the Constitution as well, which right cannot be taken away by either revocation
of the appointment, or by removal, unless there is valid cause to do so, provided that
there is previous notice and hearing. 18

Petitioner admits that his very first official act upon assuming the position of town
mayor was to issue Office Order No. 95-01 which recalled the appointments of the
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private respondents. There was no previous notice, much less a hearing accorded to the
latter. Clearly, it was petitioner who acted in undue haste to remove the private
respondents without regard for the simple requirements of due process of law. In doing
so, he overstepped the bounds of his authority. While he argues that the appointing
power has the sole authority to revoke said appointments, there is no debate that he
does not have blanket authority to do so. Neither can he question the CSC’s jurisdiction
to affirm or revoke the recall.

Rule V, Section 9 of the Omnibus Implementing Regulations of the Revised

Administrative Code specifically provides that "an appointment accepted by the
appointee cannot be withdrawn or revoked by the appointing authority and shall remain
in force and in effect until disapproved by the Commission." Thus, it is the CSC that is
authorized to recall an appointment initially approved, but only when such appointment
and approval are proven to be in disregard of applicable provisions of the civil service
law and regulations. 19

Moreover, Section 10 of the same rule provides: chanrob1es virtual 1aw library

SECTION 10. An appointment issued in accordance with pertinent laws and rules shall
take effect immediately upon its issuance by the appointing authority, and if the
appointee has assumed the duties of the position, he shall be entitled to receive his
salary at once without awaiting the approval of his appointment by the Commission.
The appointment shall remain effective until disapproved by the Commission. In no
case shall an appointment take effect earlier than the date of its issuance. chanrob1es virtua1 1aw 1ibrary

Section 20 of Rule VI also provides: chanrob1es virtual 1aw library

SECTION 20. Notwithstanding the initial approval of an appointment, the same may be
recalled on any of the following grounds: chanrob1es virtual 1aw library

(a) Non-compliance with the procedures/criteria provided in the agency’s Merit

Promotion Plan;

(b) Failure to pass through the agency’s Selection/Promotion Board;

(c) Violation of the existing collective agreement between management and employees
relative to promotion; or

(d) Violation of other existing civil service law, rules and regulations.

Accordingly, the appointments of the private respondents may only be recalled on the
above-cited grounds. And yet, the only reason advanced by the petitioner to justify the
recall was that these were "midnight appointments." The CSC correctly ruled, however,
that the constitutional prohibition on so-called "midnight appointments," specifically
those made within two (2) months immediately prior to the next presidential elections,
applies only to the President or Acting President.

If ever there were other procedural or legal requirements that were violated in
implementing the appointments of the private respondents, the same were not
seasonably brought before the Civil Service Commission. These cannot be raised for the
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first time on appeal.

WHEREFORE, in view of all the foregoing, the instant petition for review is DENIED and
the Resolution of the Court of Appeals in CA-G.R. SP No. 42896 affirming CSC
Resolutions Nos. 96-2828 and 96-7527 is hereby AFFIRMED in toto.

No pronouncement as to costs.

SO ORDERED.

Kapunan, Quisumbing, Pardo, Buena and Sandoval-Gutierrez, JJ., concur.

Bellosillo, J., I concur for the reason that in this case bad faith cannot be presumed.

Puno, J., I concur on the ground that evidence of bad faith is weak.

Vitug, J., I concur; I perceive no clear irregularities in the appointments.

Separate Opinions

MENDOZA, J., dissenting: chanrob1es virtual 1aw library

By its decision in this case today, the majority sanctions the making of "midnight
appointments" by local executives on the simplistic reasoning that Art. VII, §15 1 of the
Constitution applies only to Presidents and Acting Presidents. What the majority
overlooks is that Art. VII, §15 is simply an application of a broader principle that after
the appointing authority has lost the elections, his is the duty of a prudent caretaker of
the office, and, therefore, he should not fill positions in the government unless required
by the imperatives of public service. This rule binds all, including mayors, who are
vested with the power of appointment, and it flows from the principle that a public
office is a public trust. 2 In Aytona v. Castillo, 3 this Court did not need a specific
constitutional or statutory provision to rule that the making of 350 appointments after
the proclamation of a new President and during the last hours of the outgoing Chief
Executive could not be upheld consistent with "good faith, morality, and propriety." 4
So why should the majority in this case demand a specific rule before it puts its foot
down on this pernicious practice of making "midnight" or last-hour appointments by
local executives?

For such indeed are the 14 appointments made in this case to various positions in the
municipal government of Pagbilao, Quezon. They were made by Mayor Ma. Evelyn S.
Abeja after she had lost her bid for re-election. Despite the fact that the results of the
election were proclaimed on May 11, 1995, she made several appointments within the
space of 27 days, from June 1, 1995 to June 27, 1995, just three days before she
bowed out of the service. Even when there was no urgent need to do so, she went
ahead and filled the vacancies in the municipal government a few days before the new
mayor, herein petitioner Conrado L. de Rama, took office on June 30, 1995.

The majority justifies the appointments on the ground that they were made with the
advice of the Personnel Selection Board of the Municipality and attested by the Head of
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the Civil Service Field Office in Lucena City. As petitioner points out, however, the 14
appointments were considered in only two brief meetings of the board. Nine were
passed upon by the Personnel Selection Board in its meeting of June 16, 1995 which
lasted only an hour, from 4:30 to 5:30 P.M. These were the appointments of the
following respondents: chanrob1es virtua1 1aw 1ibrary

Aristeo G. Catalla Gen. Services Officer

Elsa M. Marino Mun. Agriculturist

Graciela V. Glory Bookkeeper II

Ma. Petra Muffet Luce Accounting Clerk III

Felicidad T. Orinday Accounting Clerk II

Bernardita M. Mendoza Agricultural Technologist

Flordeliza S. Oriasel Clerk I

Jane Macatangay Day Care Worker I

Adolfo Glodoviza Utility Worker II

On June 27, 1995, the nine (9) respondents were issued their appointments by Mayor
Abeja.

The appointments of four other respondents were considered by the Personnel Selection
Board in its meeting of May 31, 1995, which lasted only an hour and ten minutes, from
3 P.M. to 4:10 P.M. These respondents are the following, with the dates of their
appointments set opposite their names: chanrob1es virtual 1aw library

Eladio P. Martinez Registration Officer I June 1, 1995

Divino M. de Jesus Bookbinder III June 1, 1995

Morell M. Ayala Accounting Clerk III June 16, 1995

Daisy D. Porta Clerk IV June 27, 1995

In short, respondents’ appointments were made at two meetings of the Personnel

Selection Board, held on May 31, 1995 and June 16, 1995, each meeting lasting no
more than an hour. At both meetings of the board, Mayor Abeja presided as
chairperson. There was just a perfunctory compliance with legal requirements. In the
case of respondent Florencio S. Ramos, there is even no record that his appointment on
June 27, 1995 as Utility Foreman was passed by the Personnel Selection Board.

Yet, neither the Civil Service Commission nor the Court of Appeals found anything
wrong or irregular with the 14 appointments made by outgoing Mayor Abeja. The Civil
Service Commission said: chanrob1es virtual 1aw library
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Sections 9 and 10, Rule V, Omnibus Rules Implementing Book V of the Revised
Administrative Code of 1987 provides as follows: chanrob1es virtual 1aw library

SECTION 9. An appointment accepted by the appointee cannot be withdrawn or

revoked by the appointing authority and shall remain in force and effect until
disapproved by the Commission. However, an appointment may be void from the
beginning due to fraud on the part of the appointee or because it was issued in violation
of law.

SECTION 10. An appointment issued in accordance with pertinent laws or rules shall
take effect immediately upon its issuance by the appointing authority, and if the
appointee has assumed the duties of the position, he shall be entitled to receive his
salary at once without awaiting the approval of his appointment by the Commission.
The appointment shall remain effective until disapproved by the Commission. In no
case shall an appointment take effect earlier than the date of its issuance.

In the absence of any showing that these alleged midnight appointments were defective
in form and in substance, nor is there evidence presented to show that subject
appointments were issued in contravention of law or rules, these appointments are
deemed valid and in effect. chanrob1es virtua1 1aw 1ibrary

The Honorable Mayor anchored his request for the recall of subject appointments on the
fact that these appointments were issued in violation of Section 15, Article VII of the
1987 Constitution which provides as follows: chanrob1es virtual 1aw library

SECTION 15. Two months immediately before the next presidential elections and up to
the end of his term, as 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. (Emphasis supplied)

Clearly, the constitutional provision cited by Mayor De Rama speaks of presidential

elections. The instant case involves local elections and no analogy can be made that
what is prohibited during the presidential elections is applicable also to local elections
without any express provision of law. Hence, the appointing authority can validly issue
appointments until his term has expired, as long as the appointee meets the
qualification standards for the position.

This ruling of the Civil Service Commission is echoed at pages 11-12 of the majority
opinion.

It is clear, however, that the Civil Service Commission did not find anything wrong or
irregular in the appointments of respondents because it failed to appreciate the fact
that "midnight appointments" — whether made by the President or by a mayor — are
bad, because they are made hurriedly, without due deliberation and careful
consideration of the needs of the office and the qualifications of the appointees, and by
an appointing authority on the eve of his departure from office. "Midnight
appointments" are bad because, as the Aytona decision puts it, they offend principles of
"fairness, justice and righteousness." 5 They cannot be less bad because they are made
at the local level, by mayors and other local executives. The fact that in this case the
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appointments were subsequently attested by the Civil Service Commission Field Office
in Lucena City does not make them any less odious. chanrob1es virtua1 1aw 1ibrary

Public office — it cannot be too often repeated — is a public trust. As trustee of a public
office, the duty of Mayor Ma. Evelyn S. Abeja, as outgoing executive, was to preserve
the vacancies in the municipal government for her successor to fill or not to fill. What
this Court said in Aytona v. Castillo applies with equal force to Mayor Abeja: chanrob1es virtual 1aw library

But it is common sense to believe that after the proclamation of the election of
President Macapagal, [outgoing President Garcia] was no more than a "care-taker"
administration. He was duty bound to prepare for the orderly transfer of authority to
the incoming President, and he should not do acts which he ought to know, would
embarrass or obstruct the policies of his successor. The time for debate had passed;
the electorate had spoken. It was not for him to use his powers as incumbent President
to continue the political warfare that had ended or to avail himself of presidential
prerogatives to serve partisan purposes. The filling up of vacancies in important
positions, if few, and so spaced as to afford some assurance of deliberate action and
careful consideration of the need for the appointment and the appointee’s qualifications
may undoubtedly be permitted. But the issuance of 350 appointments in one night and
the planned induction of almost all of them a few hours before the inauguration of the
new President may, with some reason, be regarded by the latter as an abuse of
Presidential prerogatives, the steps taken being apparently a mere partisan effort to fill
all vacant positions irrespective of fitness and other conditions, and thereby to deprive
the new administration of an opportunity to make the corresponding appointments. 6

Of course an outgoing executive retains the power of appointment up to the last day he
is in his office. As the above excerpt from Aytona says, however, the exercise of such
power is circumscribed by the requirement that the appointments made must be "few
and so spaced as to afford some assurance of deliberate action and careful
consideration of the need for the appointment and the appointee’s qualifications." 7 The
hurried appointments of respondents detract from that degree of good faith, morality,
and propriety required for appointments made by a faithful and prudent caretaker in
order to be considered valid.chanrob1es virtua1 1aw 1ibrary

For these reasons, I vote to reverse the decision of the Court of Appeals and to declare
the appointments of private respondents as null and void.

Davide, Jr., C.J., Melo, Panganiban, Gonzaga-Reyes and De Leon, Jr., JJ., concur.