EN BANC 1) to appropriate and pay the back salaries of the petitioner Tito B.
riate and pay the back salaries of the petitioner Tito B. Dato equivalent to five (5) years without
G.R. No. 104639, July 14, 1995
PROVINCE OF CAMARINES SUR THROUGH ITS GOVERNOR, SANGGUNIANG
PANLALAWIGAN AND PROVINCIAL TREASURER, PETITIONER, VS. COURT OF
APPEALS AND TITO B. DATO, RESPONDENT.
DECISION
KAPUNAN, J.:
Petitioner Province of Camarines Sur assails the decision of the Court of Appeals which affirmed with
modification the Regional Trial Court of Camarines Sur's decision ordering it to pay private respondent Tito
Dato backwages and attorney's fees.
The relevant antecedents are as follows:
On January 1, 1960, private respondent Tito Dato was appointed as Private Agent by the then governor of
Camarines Sur, Apolonio Maleniza.
On October 12, 1972, he was promoted and was appointed Assistant Provincial Warden by then Governor
Felix Alfelor, Sr. Because he had no civil service eligibility for the position he was appointed to, private
respondent Tito Dato could not be legally extended a permanent appointment. Hence, what was extended to
him was only a temporary appointment. Thereafter, the temporary appointment was renewed annually.
On January 1, 1974, Governor Alfelor approved the change in Dato's employment status from temporary to
permanent upon the latter's representation that he passed the civil service examination for supervising security
guards. Said change of status however, was not favorably acted upon by the Civil Service Commission (CSC)
reasoning that Tito Dato did not possess the necessary civil service eligibility for the office he was appointed
to. His appointment therefore remained temporary.
Thereafter, no other appointment was extended to him.
On March 16, 1976, private respondent Tito Dato was indefinitely suspended by Governor Alfelor after
criminal charges were filed against him and a prison guard for allegedly conniving and/or consenting to
evasion of sentence of some detention prisoners who escaped from confinement.
On March 19, 1976, or two years after the request for change of status was made, Mr. Lope B. Rama, head of
the Camarines Sur Unit of the Civil Service Commission, wrote the Governor of Camarines Sur a letter
informing him that the status of private respondent Tito Dato has been changed from temporary to
permanent, the latter having passed the examination for Supervising Security Guard. The change of status
was to be made retroactive to June 11, 1974, the date of release of said examination.
In the meantime, the Sangguniang Panlalawigan suppressed the appropriation for the position of Assistant
Provincial Warden and deleted private respondent's name from the petitioner's plantilla.
Private respondent Tito Dato was subsequently acquitted of the charges against him. Consequently, he
requested the Governor for reinstatement and backwages.
When his request for reinstatement and backwages was not heeded, private respondent Tito Dato filed an
action for mandamus before the Regional Trial Court of Pili, Camarines Sur, Branch 31.
On May 31, 1991, the trial court[1] rendered judgment, the decretal portion of which reads:
WHEREFORE, judgment is hereby rendered, ordering the respondents:
qualification or deduction, at the rate of P14,532.00 per annum, with all the rights and privileges that he is
entitled to as a regular government employee reaching the age of 65 in the government service, as provided by
law;
2) to pay the petitioner the sum of P5,000.00 as attorney's fees; and
3) to pay the costs.
SO ORDERED.[2]
In due course, petitioner, Province of Camarines Sur appealed the said decision to the Court of Appeals.
On February 20, 1992, respondent Court of Appeals rendered its decision which dispositively reads as follows:
WHEREFORE, in view of all the foregoing, judgment appealed from is hereby AFFIRMED with the
following modifications: (1) respondents are ordered to pay the backwages of petitioner Tito B. Dato during
the entire period of his suspension, with all the rights and privileges that he is entitled to as a regular
government employee reaching the age of 65 in the government service, as provided by law; and (2) the award
of the sum of P5,000 to petitioner as attorney's fees and respondents to pay the costs of suit is deleted.
IT IS SO ORDERED.[3]
Aggrieved by the foregoing ruling, petitioner Province of Camarines Sur interposed the present petition
submitting that the respondent court erred in (a) affirming the trial court's finding that private respondent Tito
Dato was its permanent employee at the time he was suspended on March 16, 1976; and (b) modifying the
said decision so as to allow private respondent to claim backwages for the entire period of his suspension.
The primary question to be resolved in the instant case is whether or not private respondent Tito Dato was a
permanent employee of petitioner Province of Camarines Sur at the time he was suspended on March 16,
1976.
Petitioner contends that when Governor Alfelor recommended to CSC the change in the employment status
of private respondent from temporary to permanent, which the CSC approved as only temporary pending
validation of the results of private respondent's examination for supervising security guard, private
respondent's appointment in effect remained temporary. Hence, his subsequent qualification for civil service
eligibility did not ipso facto convert his temporary status to that of permanent.
Private respondent, on his part, vigorously asseverates that the respondent court committed no error in
confirming his appointment as permanent.
We agree with the petitioner.
Private respondent does not dispute the fact that at the time he was appointed Assistant Provincial Warden on
January 1, 1974, he had not yet qualified in an appropriate examination for the aforementioned position. Such
lack of a civil service eligibility made his appointment temporary[4] and without a fixed and definite term and is
dependent entirely upon the pleasure of the appointing power.[5] The fact that private respondent obtained
civil service eligibility later on is of no moment as his having passed the supervising security guard
examination, did not ipso facto convert his temporary appointment into a permanent one.[6] In cases
such as the one at bench, what is required is a new appointment since a permanent appointment is
not a continuation of the temporary appointment - these are two distinct acts of the appointing
authority.[7]
It is worthy to note that private respondent rests his case entirely on the letter dated March 19, 1976
communicated by Mr. Lope Rama to the Governor of Camarines Sur. The letter, which is self-explanatory, is
reproduced in full below:
xxxxxxxxxxxxxx
CAMARINES SUR UNIT
 Naga City
WHEREFORE, premises considered, the appealed decision is hereby REVERSED and the petition
Re: DATO, Tito for mandamus instituted by herein private respondent Tito Dato is hereby DISMISSED.
- Appointment of

March 19, 1976

The Honorable
The Provincial Governor of Camarines Sur
Naga City

Sir:

This refers to the latest approved appointment of Mr. TITO DATO as Asst. Provincial Warden, this
province, at P3600, effective January 1, 1974 which was approved by this Office as temporary pending
validation of his Supervising Security Guard eligibility.

It appears, however, that the aforementioned eligibility of Mr. Dato was released on June 11, 1974. In this
connection, attention is being invited to Sec. 19, Rule III of the Rules on Personnel Action and Policies which
provides that `Eligibility resulting from civil service examination x x x shall be effective on the date on the release of
the results of the examination. x x x.' (Underscoring supplied.) Mr. Dato's Supervising Security Guard eligibility,
therefore, takes effect June 11, 1974, the date the results thereof was released.

In view thereof, the aforementioned appointment of Mr. Dato is hereby approved anew as follows:
`APPROVED as temporary under Sec. 24(c), R.A. 2260, as amended, effective January 1, 1974 up to June 10,
1974 and as permanent under Sec. 24(b), R.A. 2260, as amended, subject to the report on his physical and
medical examination as to insurability, effective June 11, 1974. The Supervising Security Guard eligibility of Mr.
Dato has been validated by the Civil Service Commission, Quezon City.

The records of Mr. Dato in this Office have been amended accordingly.

Very truly yours,

By authority of the Commission

(Initialled)
LOPE B. RAMA
Unit Head[8]

The foregoing is a clear arrogation of power properly belonging to the appointing authority. Time and again,
the Court has defined the parameters within which the power of approval of appointments shall be exercised
by the Civil Service Commission. In Luego v. Civil Service Commission,[9] the Court ruled that CSC has the power
to approve or disapprove an appointment set before it. It does not have the power to make the appointment
itself or to direct the appointing authority to change the employment status of an employee. The CSC can
only inquire into the eligibility of the person chosen to fill a position and if it finds the person qualified it must
so attest. If not, the appointment must be disapproved. The duty of the CSC is to attest appointments[10] and
after that function is discharged, its participation in the appointment process ceases.[11] In the case at bench,
CSC should have ended its participation in the appointment of private respondent on January 1, 1974 when it
confirmed the temporary status of the latter who lacked the proper civil service eligibility. When it issued the
foregoing communication on March 19, 1976, it stepped on the toes of the appointing authority, thereby
encroaching on the discretion vested solely upon the latter.

Moreover, the Court is not prepared to accord said letter[12] any probative value, the same being merely a
purported photocopy of the alleged letter, initialled and not even signed by the proper officer of the CSC.

Based on the foregoing, private respondent Tito Dato, being merely a temporary employee, is not entitled to
the relief he seeks, including his claim for backwages for the entire period of his suspension.
 EN BANC
G.R. No. 116183, October 06, 1995
SEC. RICARDO T. GLORIA, IN HIS CAPACITY AS SECRETARY OF EDUCATION,
CULTURE & SPORTS AND CHAIRMAN OF THE BOARD OF TRUSTEES OF THE
PHILIPPINE STATE COLLEGE OF AERONAUTICS (PSCA); JULIAN J. LOLENG, JR., IN HIS
CAPACITY AS OFFICER-IN-CHARGE OF PSCA; AND BOARD OF TRUSTEES OF PSCA,
PETITIONERS, VS. HON. SALVADOR P. DE GUZMAN, JR., PRESIDING JUDGE OF
BRANCH 113, REGIONAL TRIAL COURT OF PASAY, METRO MANILA; VIRGILIO R.
RAMOS, LEONY P. SENDIN, ROSARIO V. CERILLO, ANDREA A. PESTANO, ARTHUR V.
RODRIGUEZA, LENI V. DIMAYUGA, JAIME ABON, RIZALDO O. VALLE, JOIE ARCEO,
SHIRLEY PESTANO, SERVANDO SACUEZA, JAIME C. PONEGAL, EDGARDO MERCADO,
CRISTINA BULADO, BENIGNO T. AQUINO, RODEL PESTANO, JUN JAY PARMA, NILO B.
ELLO, AND NELSON SACUEZA, RESPONDENTS.
DECISION
HERMOSISIMA, JR., J.:
Intransigence of private respondents in maintaining a patently indefensible position sparked this long drawn
out controversy. Knowing fully well that, as temporary employees whose terms of office, whether by contract
or by the tenor of their appointments, had expired one year after their respective temporary appointments,
that is, on December 31, 1992, they insist on a perceived, albeit mistaken, right to reinstatement.
Before this Court is a Petition for Certiorari, filed by Hon. Ricardo T. Gloria, in his capacity as Secretary of
Education, Culture and Sports (DECS) and as Chairman of the Board of Trustees of the Philippine State
College of Aeronautics (PSCA); Col. Julian J. Loleng, Jr., in his capacity as Officer-in-Charge of the PSCA;
and the Board of Trustees of the PSCA[1], under Rule 65 of the Revised Rules of Court, with the end in view
of nullifying the Decision[2] and Order[3] of respondent Judge Salvador P. de Guzman, Jr., Presiding Judge of
Branch 113, Regional Trial Court of Pasay City, dated January 31, 1994 and June 29, 1994, respectively.
Questioned in effect by the petitioners is only the portion of the judgment ordering the reinstatement of
private respondent Rosario V. Cerillo to the position of "Coordinator for Extension Services".
Actually, the act of effecting the termination of the appointment of Rosario V. Cerillo was perpetrated by Col.
Julian J. Loleng, Jr. while it was the Hon. Isidro Cario who was the DECS Secretary. The case for
reinstatement which was filed before respondent Judge Salvador P. de Guzman, Jr. of the Pasay City Regional
Trial Court was instituted during the incumbency of the succeeding DECS Secretary, the Hon. Armand
Fabella. The judgment of the lower court, as a matter of fact, involved the Hon. Armand Fabella as
defendant. In view of the resignation of Secretary Fabella, the duty and obligation to question the decision
aforesaid of Judge Salvador P. de Guzman, Jr. devolved on the incumbent Secretary, the Hon. Ricardo T.
Gloria.
Consequently, the dramatis personae in this case include: DECS Secretary Ricardo T. Gloria; PSCA Board of
Trustees Chairman Col. Julian J. Loleng, Jr.; and the PSCA Board of Trustees created under Republic Act No.
7605, as petitioners; and RTC Executive Judge Salvador P. de Guzman, Jr., as public respondent, and the
named private respondents who were the petitioners in the court below.
The facts of the case are not in dispute. The question at issue is one of law: Is private respondent Rosario V.
Cerillo entitled to reinstatement to the position of "Coordinator for Extension Services"?
Private respondents were employees of the Philippine Air Force College of Aeronautics (PAFCA) which was
created by virtue of Presidential Decree No. 1078 on January 26, 1977. Under the said decree, the Board of
Trustees is vested with authority, among others, to appoint, as it did appoint, officials and employees of the
college, except the members of the Board of Trustees themselves and the President of the college. In line
with this authority, the PAFCA Board of Trustees issued Resolution No. 91-026 on April 1, 1991, which
declared that "All faculty/administrative employees are also subject to the required civil service eligibilities", in
accordance with pertinent civil service law, rules and regulations. Thus, herein private respondents were
issued only temporary appointments because at the time of their appointment, they lacked appropriate civil
service eligibilities or otherwise failed to meet the necessary qualification standards for their respective
positions.
Private respondent Rosario V. Cerillo, specifically, was issued a one-year temporary appointment to the
position of Board Secretary II of PAFCA (now PSCA), that is, from January 1, 1992 to December 31,
1992. This appointment went along the line enunciated by the Civil Service Commission in a letter, dated
March 25, 1992.[4] The letter emphasized that temporary appointments were good and renewable only up to
1992.
On March 24, 1992, private respondent Rosario V. Cerillo was relieved as Board Secretary of the PAFCA in
accordance with Board Resolution No. 92-017 by reason of loss of confidence. Subsequently, however, she
was designated as "Coordinator for Extension Services".
On June 3, 1992, Republic Act No. 7605 was enacted into law. It converted PAFCA into a state college to be
known as the Philippine State College of Aeronautics (PSCA). The Board of Trustees likewise was the
governing body of the PSCA. The power to make appointments was retained by the Board. Petitioner Col.
Julian J. Loleng, Jr. remained as Officer-in-Charge by virtue of a designation made anew by then DECS
Secretary Isidro Cario on June 8, 1992.
Only on December 7, 1992 did Col. Loleng inform private respondents that they shall be deemed separated
from the service upon the expiration of their temporary appointments. Had private respondent Rosario V.
Cerillo not been summarily dismissed as Board Secretary on March 24, 1992, her temporary appointment as
such was supposed to have lasted until December 31, 1992.
On June 25, 1993, barely five months after the lapse of the terms of their temporary appointments as
determined by the PSCA administration, the herein private respondents filed before the Regional Trial Court
of Pasay City, presided over by respondent Judge Salvador P. de Guzman, Jr., a "Petition for Mandamus and
Reinstatement, with Back Wages and Damages", docketed as Civil Case No. 10049. The complaint in effect
prayed that then DECS Secretary Armand Fabella complete the filling up of positions for Board of Trustees
and order the Board of Trustees to reinstate the respondents in the case at bench to their respective positions.
In their Answer[5], the herein petitioners opposed the petition upon the ground that mandamus will not lie to
compel reinstatement because the reappointment prayed for is discretionary on the part of the appointing
power. Besides, it was the claim of Secretary Fabella that a writ of mandamus should be unavailing to private
respondents because of their failure to exhaust administrative remedies.
We find the petition to be impressed with merit.
I
The judgment of respondent Judge Salvador P. de Guzman, Jr. which orders the reinstatement of Ms. Rosario
V. Cerillo to the position of "Coordinator for Extension Services" is patently improper because it finds no
support as to facts and the law. Respondent Cerillo, although temporarily extended an appointment as Board
Secretary II, was dismissed therefrom because of loss of confidence. This dismissal was neither contested nor
appealed from by Ms. Cerillo. There is no question, therefore, that her dismissal as Board Secretary II could
not have been the subject of the petition for mandamus and reinstatement filed before respondent Judge. The
fact is that private respondent's assignment as "Coordinator for Extension Services" was a mere
designation. Not being a permanent appointment, the designation to the position cannot be the subject of a
case for reinstatement.
Furthermore, even granting that Ms. Cerillo could be validly reinstated as "Coordinator for Extension
Services", her reinstatement thereto would not be possible because the position is not provided for in the
PSCA plantilla. The PSCA could not have made any valid appointment for this inexistent position. This
could very well be the reason why she was merely designated as Coordinator. As a mere designee, she could
not have acquired any right to the position even if the position existed.

At any rate, a mere "designation" does not confer upon the designee security of tenure in the position or
office which he occupies in an acting capacity only[6].
II
Should the object of private respondent Cerillo in prosecuting the case in the court below be her
reinstatement to the position of Board Secretary II, the reinstatement prayed for appears to be
impermissible. In the first place, Ms. Cerillo had already been dismissed from this position for loss of
confidence. She did not contest this dismissal possibly because the position of Board Secretary II is primarily
confidential and the Board of Trustees, when finding her, the incumbent to the position, to be wanting in
faithfulness and integrity dismissed her for that reason alone. She accepted the dismissal without any ripple
and when designated as Coordinator for Extension Services, she indicated acceptance by performing the acts
called for by the designation.
The quarrel between the private respondents, on the one hand, and the PSCA administration, on the other,
came about in this manner:
The Civil Service Commission, mandating a policy, wrote petitioner Col. Julian J. Loleng, Jr. a
letter[7] mandating that temporary appointments of officers/employees of the PSCA were to last only up to
December 31, 1992. For a better perspective, We quote a pertinent portion of the letter:
"xxx xxx xxx
Please note that temporary appointments last only for a maximum of one (1) year and all personnel appointed
in a temporary capacity can be replaced any time by a civil service eligible. Since you have just been recently
covered by the Civil Service Law and rules, this Field Office approved all your temporary appointments
subject to yearly renewal up to 1992 only. Subsequent appointments should strictly conform with civil service
policies. You may, therefore, advise all your temporary personnel to take civil service examinations in order to
be eligible for appointment."
This letter was implemented by Col. Julian J. Loleng, Jr. Objecting thereto, private respondents pointed out to
the PSCA administration that, in Resolution No. 91-026, dated April 1, 1991, the Board of Trustees declared
that all faculty/administrative employees of the college, while required to acquire civil service eligibilities under
pertinent civil service law, rules and regulations, must exert effort to acquire civil service eligibilities within a
period of three years from their temporary appointments. This, the private respondents believe should be
taken to mean that, should they acquire civil service eligibilities within that period of three years, they cannot
be terminated from the service.
The fact that private respondent Cerillo passed the requisite Civil Service Examination after the termination of
her temporary appointment is no reason to compel petitioners to reappoint her. Acquisition of civil service
eligibility is not the sole factor for reappointment. Still to be considered by the appointing authority
are: performance, degree of education, work experience, training, seniority, and, more importantly, as in this
case, whether or not the applicant enjoys the confidence and trust of the appointing power. As We said
earlier, the position of Board Secretary II, by its nature, is primarily confidential, requiring as it does "not only
confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which
ensures freedom from misgivings of betrayals of personal trust or confidential matters of state."[8] In other
words, the choice of an appointee from among those who possessed the required qualifications is a political
and administrative decision calling for considerations of wisdom, convenience, utility and the interests of the
service which can best be made by the Head of the office concerned.[9]
It cannot be overemphasized that the PSCA Board Resolution No. 91-026 must yield to the Civil Service
Commission policies on the issuance of temporary appointments. When the Civil Service Commission
directed that temporary appointments were to be effective only up to 1992, it did so in pursuance of the
general purpose of the civil service law, as stated under Section 2 of Republic Act No. 2260, as amended,
which is "to ensure and promote the constitutional mandate regarding appointments only according to merit
and fitness and to provide within the public service a progressive system of personal administration to ensure
the maintenance of an honest and efficient progressive and courteous civil service in the Philippines.[10] For
that matter, it is vested with the function, among others, to promulgate policies, standards and guidelines for
the civil service and adopt plans and programs to promote economical, efficient and effective personnel
administration in the government.[11]
We hold that reappointment to the position of Board Secretary II is an act which is discretionary on the part
of the appointing power. Consequently, it cannot be the subject of an application for a writ of mandamus.
Reinstatement is technically issuance of a new appointment which is essentially discretionary, to be performed
by the officer in which it is vested according to his best lights, the only condition being that the appointee
should possess the qualifications required by law.[12] Such exercise of the discretionary power of appointment
cannot be controlled, not even by the Court as long as it is exercised properly by the appointing authority.[13]
It is Our holding that the questioned order of reinstatement amounts to an undue interference by the Court in
the exercise of the discretionary power of appointment vested in the PSCA Board of Trustees.
Surprisingly, the Court a quo, while upholding the right of private respondent Cerillo to a reappointment,
adhered to this pontification by stating that:
"The appointment of the petitioners to their former positions is not a matter of right; rather, it is a matter of
discretion on the part of the respondents. Mandamus cannot be availed of to compel anyone to exercise his
discretion absent any showing of grave abuse of discretion."
III
The termination of the services of private respondents was proper and legal, it being the consequence of the
Board of Trustees' power to appoint. The view of respondent Judge, however, is that there was no
termination ordered. Either the employees' contracts lapsed or their temporary appointments were abrogated
by circulars from the Civil Service Commission. This, as a necessary consequence of the transition from the
Philippine Air Force College of Aeronautics (PAFCA) to the Philippine State College of Aeronautics (PSCA).
We agree with respondent Judge's disquisition on this point:
"To the question was the termination of the services of the petitioners legal or not?, the only answer is there
was not termination to speak of. Termination presupposes an overt act committed by a superior officer.
There was none whatsoever in the case at bar. At most, Col. Julian (Loleng) gave notice to the petitioners of
the expiration of their respective contracts. Petitioners appointment or employment simply expired either by
its very own terms, or because it may not exceed one year, but most importantly because the PAFCA was
dissolved and replaced by the PSCA. The notice given by Col. Loleng to the petitioners seem to have been
misunderstood by them as an act of dismissal which as they correctly state, belongs to the Board of Trustees
alone."
IV
Considering Our finding that there is merit to the petition, the issue as to whether attorney's fees and costs of
litigation should be awarded to private respondent Rosario V. Cerillo as adjudged in the questioned decision
of respondent Judge has become moot and academic. At any rate, the Court holds that the said award could
not have been imposed because, while it was directly ordered in the dispositive portion of the decision, it was
neither discussed nor justified in the body of the questioned decision. Clear on this point is Our decision in
Policarpio vs. Court of Appeals, 194 SCRA 129, 742, [1991]: "The Court had occasion to state that the reason
for the award of attorney's fees must be stated in the text of the decision, otherwise, if it is stated only in the
dispositive portion of the decision, the same shall be disallowed." This ruling We reiterated in the case of Koa
vs. Court of Appeals, 219 SCRA 541, 549, [1991], citing Central Azucarera de Bais vs. Court of Appeals, 188
SCRA 328, 340, where it was stated that "The award of attorney's fees must be disallowed for want of factual
and legal premise in the text of the decision rendered by the court of origin and the appellate court as well."
WHEREFORE, the petition is GRANTED. The challenged decision, dated January 31, 1994, insofar as it
ordered the reinstatement of Ms. Rosario V. Cerillo and the payment to the latter of back wages and attorney's
fees, and the Order, dated June 29, 1994, of respondent Judge Salvador P. de Guzman, Jr. are hereby declared
null and void and ordered set aside. The temporary restraining order/preliminary injunction heretofore issued
is hereby made permanent.
 EN BANC
G.R. No. 149036, April 02, 2002
MA. J. ANGELINA G. MATIBAG, PETITIONER, VS. ALFREDO L. BENIPAYO,
RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., VELMA J. CINCO, AND
GIDEON C. DE GUZMAN IN HIS CAPACITY AS OFFICER-IN-CHARGE, FINANCE
SERVICES DEPARTMENT OF THE COMMISSION ON ELECTIONS, RESPONDENTS.
DECISION
CARPIO, J.:
The Case
Before us is an original Petition for Prohibition with prayer for the issuance of a writ of preliminary injunction
and a temporary restraining order under Rule 65 of the 1997 Rules of Civil Procedure. Petitioner Ma. J.
Angelina G. Matibag (Petitioner for brevity) questions the constitutionality of the appointment and the right
to hold office of the following: (1) Alfredo L. Benipayo (Benipayo for brevity) as Chairman of the
Commission on Elections (COMELEC for brevity); and (2) Resurreccion Z. Borra (Borra for brevity)
and Florentino A. Tuason, Jr. (Tuason for brevity) as COMELEC Commissioners. Petitioner also
questions the legality of the appointment of Velma J. Cinco[1] (Cinco for brevity) as Director IV of the
COMELECs Education and Information Department (EID for brevity).
The Facts
On February 2, 1999, the COMELEC en banc appointed petitioner as Acting Director IV of the EID. On
February 15, 2000, then Chairperson Harriet O. Demetriou renewed the appointment of petitioner as Director
IV of EID in a Temporary capacity. On February 15, 2001, Commissioner Rufino S.B. Javier renewed
again the appointment of petitioner to the same position in a Temporary capacity.[2]
On March 22, 2001, President Gloria Macapagal Arroyo appointed, ad interim, Benipayo as COMELEC
Chairman,[3] and Borra[4] and Tuason[5] as COMELEC Commissioners, each for a term of seven years and all
expiring on February 2, 2008. Benipayo took his oath of office and assumed the position of COMELEC
Chairman. Borra and Tuason likewise took their oaths of office and assumed their positions as COMELEC
Commissioners. The Office of the President submitted to the Commission on Appointments on May 22,
2001 the ad interim appointments of Benipayo, Borra and Tuason for confirmation.[6] However, the
Commission on Appointments did not act on said appointments.
On June 1, 2001, President Arroyo renewed the ad interim appointments of Benipayo, Borra and Tuason to the
same positions and for the same term of seven years, expiring on February 2, 2008.[7] They took their oaths of
office for a second time. The Office of the President transmitted on June 5, 2001 their appointments to the
Commission on Appointments for confirmation.[8]
Congress adjourned before the Commission on Appointments could act on their appointments. Thus, on
June 8, 2001, President Macapagal Arroyo renewed again the ad interim appointments of Benipayo, Borra and
Tuason to the same positions.[9] The Office of the President submitted their appointments for confirmation to
the Commission on Appointments.[10] They took their oaths of office anew.
In his capacity as COMELEC Chairman, Benipayo issued a Memorandum dated April 11, 2001[11] addressed
to petitioner as Director IV of the EID and to Cinco as Director III also of the EID, designating Cinco
Officer-in-Charge of the EID and reassigning petitioner to the Law Department. COMELEC EID
Commissioner-in-Charge Mehol K. Sadain objected to petitioners reassignment in a Memorandum dated
April 14, 2001[12] addressed to the COMELEC en banc. Specifically, Commissioner Sadain questioned
Benipayos failure to consult the Commissioner-in-Charge of the EID in the reassignment of petitioner.
On April 16, 2001, petitioner requested Benipayo to reconsider her relief as Director IV of the EID and her
reassignment to the Law Department.[13] Petitioner cited Civil Service Commission Memorandum Circular
No. 7 dated April 10, 2001, reminding heads of government offices that transfer and detail of employees are
prohibited during the election period beginning January 2 until June 13, 2001. Benipayo denied her request
for reconsideration on April 18, 2001,[14] citing COMELEC Resolution No. 3300 dated November 6, 2000,
which states in part:
NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred upon it by the
Constitution, the Omnibus Election Code and other election laws, as an exception to the foregoing
prohibitions, has RESOLVED, as it is hereby RESOLVED, to appoint, hire new employees or fill new
positions and transfer or reassign its personnel, when necessary in the effective performance of its mandated
functions during the prohibited period, provided that the changes in the assignment of its field personnel
within the thirty-day period before election day shall be effected after due notice and hearing.
Petitioner appealed the denial of her request for reconsideration to the COMELEC en banc in a Memorandum
dated April 23, 2001.[15] Petitioner also filed an administrative and criminal complaint[16] with the Law
Department[17] against Benipayo, alleging that her reassignment violated Section 261 (h) of the Omnibus
Election Code, COMELEC Resolution No. 3258, Civil Service Memorandum Circular No. 07, s. 001, and
other pertinent administrative and civil service laws, rules and regulations.
During the pendency of her complaint before the Law Department, petitioner filed the instant petition
questioning the appointment and the right to remain in office of Benipayo, Borra and Tuason, as Chairman
and Commissioners of the COMELEC, respectively. Petitioner claims that the ad interim appointments
of Benipayo, Borra and Tuason violate the constitutional provisions on the independence of the
COMELEC, as well as on the prohibitions on temporary appointments and reappointments of its Chairman
and members. Petitioner also assails as illegal her removal as Director IV of the EID and her reassignment to
the Law Department. Simultaneously, petitioner challenges the designation of Cinco as Officer-in-Charge of
the EID. Petitioner, moreover, questions the legality of the disbursements made by COMELEC Finance
Services Department Officer-in-Charge Gideon C. De Guzman to Benipayo, Borra and Tuason by way of
salaries and other emoluments.
In the meantime, on September 6, 2001, President Macapagal Arroyo renewed once again the ad
interim appointments of Benipayo as COMELEC Chairman and Borra and Tuason as Commissioners,
respectively, for a term of seven years expiring on February 2, 2008.[18] They all took their oaths of office
anew.
The Issues
The issues for resolution of this Court are as follows:
1. Whether or not the instant petition satisfies all the requirements before this Court may exercise its
power of judicial review in constitutional cases;
2. Whether or not the assumption of office by Benipayo, Borra and Tuason on the basis of the ad
interim appointments issued by the President amounts to a temporary appointment prohibited by
Section 1 (2), Article IX-C of the Constitution;
3. Assuming that the first ad interim appointments and the first assumption of office by Benipayo,
Borra and Tuason are legal, whether or not the renewal of their ad interim appointments and
subsequent assumption of office to the same positions violate the prohibition on reappointment
under Section 1 (2), Article IX-C of the Constitution;
4. Whether or not Benipayos removal of petitioner from her position as Director IV of the EID and
her reassignment to the Law Department is illegal and without authority, having been done
without the approval of the COMELEC as a collegial body;
 5. Whether or not the Officer-in-Charge of the COMELECs Finance Services Department, in
continuing to make disbursements in favor of Benipayo, Borra, Tuason and Cinco, is acting in
excess of jurisdiction.
First Issue: Propriety of Judicial Review
Respondents assert that the petition fails to satisfy all the four requisites before this Court may exercise its
power of judicial review in constitutional cases. Out of respect for the acts of the Executive department,
which is co-equal with this Court, respondents urge this Court to refrain from reviewing the constitutionality
of the ad interim appointments issued by the President to Benipayo, Borra and Tuason unless all the four
requisites are present. These are: (1) the existence of an actual and appropriate controversy; (2) a personal and
substantial interest of the party raising the constitutional issue; (3) the exercise of the judicial review is pleaded
at the earliest opportunity; and (4) the constitutional issue is the lis mota of the case.[19]
Respondents argue that the second, third and fourth requisites are absent in this case. Respondents maintain
that petitioner does not have a personal and substantial interest in the case because she has not sustained a
direct injury as a result of the ad interim appointments of Benipayo, Borra and Tuason and their assumption of
office. Respondents point out that petitioner does not claim to be lawfully entitled to any of the positions
assumed by Benipayo, Borra or Tuason. Neither does petitioner claim to be directly injured by the
appointments of these three respondents.
Respondents also contend that petitioner failed to question the constitutionality of the ad interim appointments
at the earliest opportunity. Petitioner filed the petition only on August 3, 2001 despite the fact that the ad
interim appointments of Benipayo, Borra and Tuason were issued as early as March 22, 2001. Moreover, the
petition was filed after the third time that these three respondents were issued ad interim appointments.
Respondents insist that the real issue in this case is the legality of petitioners reassignment from the EID to
the Law Department. Consequently, the constitutionality of the ad interim appointments is not the lis mota of
this case.
We are not persuaded.
Benipayo reassigned petitioner from the EID, where she was Acting Director, to the Law Department, where
she was placed on detail service.[20] Respondents claim that the reassignment was pursuant to x x x
Benipayos authority as Chairman of the Commission on Elections, and as the Commissions Chief
Executive Officer.[21]Evidently, respondents anchor the legality of petitioners reassignment on Benipayos
authority as Chairman of the COMELEC. The real issue then turns on whether or not Benipayo is the lawful
Chairman of the COMELEC. Even if petitioner is only an Acting Director of the EID, her reassignment is
without legal basis if Benipayo is not the lawful COMELEC Chairman, an office created by the Constitution.
On the other hand, if Benipayo is the lawful COMELEC Chairman because he assumed office in accordance
with the Constitution, then petitioners reassignment is legal and she has no cause to complain provided the
reassignment is in accordance with the Civil Service Law. Clearly, petitioner has a personal and material stake
in the resolution of the constitutionality of Benipayos assumption of office. Petitioners personal and
substantial injury, if Benipayo is not the lawful COMELEC Chairman, clothes her with the requisite locus
standi to raise the constitutional issue in this petition.
Respondents harp on petitioners belated act of questioning the constitutionality of the ad
interim appointments of Benipayo, Borra and Tuason. Petitioner filed the instant petition only on August 3,
2001, when the first ad interim appointments were issued as early as March 22, 2001. However, it is not the date
of filing of the petition that determines whether the constitutional issue was raised at the earliest opportunity.
The earliest opportunity to raise a constitutional issue is to raise it in the pleadings before a competent court
that can resolve the same, such that, if it is not raised in the pleadings, it cannot be considered at the trial,
and, if not considered at the trial, it cannot be considered on appeal.[22] Petitioner questioned the
constitutionality of the ad interim appointments of Benipayo, Borra and Tuason when she filed her petition
before this Court, which is the earliest opportunity for pleading the constitutional issue before a competent
body. Furthermore, this Court may determine, in the exercise of sound discretion, the time when a
constitutional issue may be passed upon.[23] There is no doubt petitioner raised the constitutional issue on
time.
Moreover, the legality of petitioners reassignment hinges on the constitutionality of Benipayos ad
interim appointment and assumption of office. Unless the constitutionality of Benipayos ad
interim appointment and assumption of office is resolved, the legality of petitioners reassignment from the
EID to the Law Department cannot be determined. Clearly, the lis mota of this case is the very constitutional
issue raised by petitioner.
In any event, the issue raised by petitioner is of paramount importance to the public. The legality of the
directives and decisions made by the COMELEC in the conduct of the May 14, 2001 national elections may
be put in doubt if the constitutional issue raised by petitioner is left unresolved. In keeping with this Courts
duty to determine whether other agencies of government have remained within the limits of the Constitution
and have not abused the discretion given them, this Court may even brush aside technicalities of procedure
and resolve any constitutional issue raised.[24] Here the petitioner has complied with all the requisite
technicalities. Moreover, public interest requires the resolution of the constitutional issue raised by petitioner.
Second Issue: The Nature of an Ad Interim Appointment
Petitioner argues that an ad interim appointment to the COMELEC is a temporary appointment that is
prohibited by Section 1 (2), Article IX-C of the Constitution, which provides as follows:
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,
three Members shall hold office for seven years, two Members for five years, and the last Members 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. (Emphasis supplied)
Petitioner posits the view that an ad interim appointment can be withdrawn or revoked by the President at her
pleasure, and can even be disapproved or simply by-passed by the Commission on Appointments. For this
reason, petitioner claims that an ad interim appointment is temporary in character and consequently prohibited
by the last sentence of Section 1 (2), Article IX-C of the Constitution.
Based on petitioners theory, there can be no ad interim appointment to the COMELEC or to the other two
constitutional commissions, namely the Civil Service Commission and the Commission on Audit. The last
sentence of Section 1 (2), Article IX-C of the Constitution is also found in Article IX-B and Article IX-D
providing for the creation of the Civil Service Commission and the Commission on Audit,
respectively. Petitioner interprets the last sentence of Section 1 (2) of Article IX-C to mean that the ad
interim appointee cannot assume office until his appointment is confirmed by the Commission on
Appointments for only then does his appointment become permanent and no longer temporary in character.
The rationale behind petitioners theory is that only an appointee who is confirmed by the Commission on
Appointments can guarantee the independence of the COMELEC. A confirmed appointee is beyond the
influence of the President or members of the Commission on Appointments since his appointment can no
longer be recalled or disapproved. Prior to his confirmation, the appointee is at the mercy of both the
appointing and confirming powers since his appointment can be terminated at any time for any cause. In the
words of petitioner, a Sword of Damocles hangs over the head of every appointee whose confirmation is
pending with the Commission on Appointments.
We find petitioners argument without merit.
An ad interim appointment is a permanent appointment because it takes effect immediately and can no longer
be withdrawn by the President once the appointee has qualified into office. The fact that it is subject to
confirmation by the Commission on Appointments does not alter its permanent character. The Constitution
itself makes an ad interim appointment permanent in character by making it effective until disapproved by the
Commission on Appointments or until the next adjournment of Congress. The second paragraph of Section
16, Article VII of the Constitution provides as follows:
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. (Emphasis supplied)
Thus, the ad interim appointment remains effective until such disapproval or next adjournment, signifying that
it can no longer be withdrawn or revoked by the President. The fear that the President can withdraw or
revoke at any time and for any reason an ad interim appointment is utterly without basis.
More than half a century ago, this Court had already ruled that an ad interim appointment is permanent in
character. In Summers vs. Ozaeta,[25] decided on October 25, 1948, we held that:
x x x an ad interim appointment is one made in pursuance of paragraph (4), Section 10, Article VII of the
Constitution, which provides that the President shall have the power to make appointments during the recess
of the Congress, but such appointments shall be effective only until disapproval by the Commission on
Appointments or until the next adjournment of the Congress. It is an appointment permanent in nature,
and the circumstance that it is subject to confirmation by the Commission on Appointments does not
alter its permanent character. An ad interim appointment is disapproved certainly for a reason other than
that its provisional period has expired. Said appointment is of course distinguishable from an acting
appointment which is merely temporary, good until another permanent appointment is issued. (Emphasis
supplied)
The Constitution imposes no condition on the effectivity of an ad interim appointment, and thus an ad
interim appointment takes effect immediately. The appointee can at once assume office and exercise, as a de
jure officer, all the powers pertaining to the office. In Pacete vs. Secretary of the Commission on Appointments,[26] this
Court elaborated on the nature of an ad interim appointment as follows:
A distinction is thus made between the exercise of such presidential prerogative requiring confirmation by
the Commission on Appointments when Congress is in session and when it is in recess. In the former, the
President nominates, and only upon the consent of the Commission on Appointments may the person thus
named assume office. It is not so with reference to ad interim appointments. It takes effect at once.
The individual chosen may thus qualify and perform his function without loss of time. His title to
such office is complete. In the language of the Constitution, the appointment is effective until disapproval
by the Commission on Appointments or until the next adjournment of the Congress.
Petitioner cites Blacks Law Dictionary which defines the term ad interim to mean in the meantime or for
the time being. Hence, petitioner argues that an ad interim appointment is undoubtedly temporary in
character. This argument is not new and was answered by this Court in Pamantasan ng Lungsod ng Maynila vs.
Intermediate Appellate Court,[27] where we explained that:
x x x From the arguments, it is easy to see why the petitioner should experience difficulty in understanding
the situation. Private respondent had been extended several ad interim appointments which petitioner
mistakenly understands as appointments temporary in nature. Perhaps, it is the literal translation of the word
ad interim which creates such belief. The term is defined by Black to mean in the meantime or for the
time being. Thus, an officer ad interim is one appointed to fill a vacancy, or to discharge the duties of the
office during the absence or temporary incapacity of its regular incumbent (Blacks Law Dictionary, Revised
Fourth Edition, 1978). But such is not the meaning nor the use intended in the context of Philippine law. In
referring to Dr. Estebans appointments, the term is not descriptive of the nature of the appointments given
to him. Rather, it is used to denote the manner in which said appointments were made, that is, done
by the President of the Pamantasan in the meantime, while the Board of Regents, which is originally
vested by the University Charter with the power of appointment, is unable to act. x x x. (Emphasis
supplied)
Thus, the term ad interim appointment, as used in letters of appointment signed by the President, means a
permanent appointment made by the President in the meantime that Congress is in recess. It does not
mean a temporary appointment that can be withdrawn or revoked at any time. The term, although not
found in the text of the Constitution, has acquired a definite legal meaning under Philippine
jurisprudence. The Court had again occasion to explain the nature of an ad interim appointment in the more
recent case of Marohombsar vs. Court of Appeals,[28] where the Court stated:
We have already mentioned that an ad interim appointment is not descriptive of the nature of the
appointment, that is, it is not indicative of whether the appointment is temporary or in an acting capacity,
rather it denotes the manner in which the appointment was made. In the instant case, the appointment
extended to private respondent by then MSU President Alonto, Jr. was issued without condition nor limitation
as to tenure. The permanent status of private respondents appointment as Executive Assistant II was
recognized and attested to by the Civil Service Commission Regional Office No. 12. Petitioners
submission that private respondents ad interim appointment is synonymous with a temporary
appointment which could be validly terminated at any time is clearly untenable. Ad interim
appointments are permanent but their terms are only until the Board disapproves them. (Emphasis
supplied)
An ad interim appointee who has qualified and assumed office becomes at that moment a government
employee and therefore part of the civil service. He enjoys the constitutional protection that [n]o officer or
employee in the civil service shall be removed or suspended except for cause provided by law.[29] Thus, an ad
interim appointment becomes complete and irrevocable once the appointee has qualified into office. The
withdrawal or revocation of an ad interim appointment is possible only if it is communicated to the appointee
before the moment he qualifies, and any withdrawal or revocation thereafter is tantamount to removal from
office.[30] Once an appointee has qualified, he acquires a legal right to the office which is protected not only by
statute but also by the Constitution. He can only be removed for cause, after notice and hearing, consistent
with the requirements of due process.
An ad interim appointment can be terminated for two causes specified in the Constitution. The first cause is the
disapproval of his ad interim appointment by the Commission on Appointments. The second cause is the
adjournment of Congress without the Commission on Appointments acting on his appointment. These two
causes are resolutory conditions expressly imposed by the Constitution on all ad interim appointments. These
resolutory conditions constitute, in effect, a Sword of Damocles over the heads of ad interim appointees. No
one, however, can complain because it is the Constitution itself that places the Sword of Damocles over the
heads of the ad interim appointees.
While an ad interim appointment is permanent and irrevocable except as provided by law, an appointment or
designation in a temporary or acting capacity can be withdrawn or revoked at the pleasure of the appointing
power.[31] A temporary or acting appointee does not enjoy any security of tenure, no matter how briefly. This
is the kind of appointment that the Constitution prohibits the President from making to the three
independent constitutional commissions, including the COMELEC. Thus, in Brillantes vs. Yorac,[32] this Court
struck down as unconstitutional the designation by then President Corazon Aquino of Associate
Commissioner Haydee Yorac as Acting Chairperson of the COMELEC. This Court ruled that:
A designation as Acting Chairman is by its very terms essentially temporary and therefore revocable at will.
No cause need be established to justify its revocation. Assuming its validity, the designation of the respondent
as Acting Chairman of the Commission on Elections may be withdrawn by the President of the Philippines at
any time and for whatever reason she sees fit. It is doubtful if the respondent, having accepted such
designation, will not be estopped from challenging its withdrawal.
xxx
The Constitution provides for many safeguards to the independence of the Commission on Elections,
foremost among which is the security of tenure of its members. That guarantee is not available to the
respondent as Acting Chairman of the Commission on Elections by designation of the President of the
Philippines.
Earlier, in Nacionalista Party vs. Bautista,[33] a case decided under the 1935 Constitution, which did not have a
provision prohibiting temporary or acting appointments to the COMELEC, this Court nevertheless declared
unconstitutional the designation of the Solicitor General as acting member of the COMELEC. This Court
ruled that the designation of an acting Commissioner would undermine the independence of the COMELEC
and hence violate the Constitution. We declared then: It would be more in keeping with the intent, purpose
and aim of the framers of the Constitution to appoint a permanentCommissioner than to designate one to
act temporarily. (Emphasis supplied)
In the instant case, the President did in fact appoint permanent Commissioners to fill the vacancies in the
COMELEC, subject only to confirmation by the Commission on Appointments. Benipayo, Borra and
Tuason were extended permanent appointments during the recess of Congress. They were not appointed or
designated in a temporary or acting capacity, unlike Commissioner Haydee Yorac in Brillantes vs. Yorac[34] and
Solicitor General Felix Bautista in Nacionalista Party vs. Bautista.[35] The ad interim appointments of Benipayo,
Borra and Tuason are expressly allowed by the Constitution which authorizes the President, during the recess
of Congress, to make appointments that take effect immediately.

While the Constitution mandates that the COMELEC shall be independent[36], this provision should be
harmonized with the Presidents power to extend ad interim appointments. To hold that the independence of
the COMELEC requires the Commission on Appointments to first confirm ad interim appointees before the
appointees can assume office will negate the Presidents power to make ad interim appointments. This is
contrary to the rule on statutory construction to give meaning and effect to every provision of the law. It will
also run counter to the clear intent of the framers of the Constitution.
The original draft of Section 16, Article VII of the Constitution - on the nomination of officers subject to
confirmation by the Commission on Appointments - did not provide for ad interim appointments. The
original intention of the framers of the Constitution was to do away with ad interim appointments because the
plan was for Congress to remain in session throughout the year except for a brief 30-day compulsory
recess. However, because of the need to avoid disruptions in essential government services, the framers of
the Constitution thought it wise to reinstate the provisions of the 1935 Constitution on ad
interim appointments. The following discussion during the deliberations of the Constitutional Commission
elucidates this:
FR. BERNAS: X x x our compulsory recess now is only 30 days. So under such circumstances, is it necessary
to provide for ad interim appointments? Perhaps there should be a little discussion on that.
xxx
MS. AQUINO: My concern is that unless this problem is addressed, this might present problems in terms
of anticipating interruption of government business, considering that we are not certain of the length of
involuntary recess or adjournment of the Congress. We are certain, however, of the involuntary adjournment
of the Congress which is 30 days, but we cannot leave to conjecture the matter of involuntary recess.
FR. BERNAS: That is correct, but we are trying to look for a formula. I wonder if the Commissioner has a
formula x x x.
xxx
MR. BENGZON: Madam President, apropos of the matter raised by Commissioner Aquino and after
conferring with the Committee, Commissioner Aquino and I propose the following amendment as the last
paragraph of Section 16, the wordings of which are in the 1935 Constitution: THE PRESIDENT SHALL
HAVE THE POWER TO MAKE APPOINTMENTS DURING THE RECESS OF CONGRESS
WHETHER IT BE 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.
This is otherwise called the ad interim appointments.
xxx
THE PRESIDENT: Is there any objection to the proposed amendment of Commissioners Aquino and
Bengzon, adding a paragraph to the last paragraph of Section 16? (Silence) The Chair hears none; the
amendment is approved.[37] (Emphasis supplied)
Clearly, the reinstatement in the present Constitution of the ad interim appointing power of the President was
for the purpose of avoiding interruptions in vital government services that otherwise would result from
prolonged vacancies in government offices, including the three constitutional commissions. In his concurring
opinion in Guevara vs. Inocentes,[38] decided under the 1935 Constitution, Justice Roberto Concepcion, Jr.
explained the rationale behind ad interimappointments in this manner:
Now, why is the lifetime of ad interim appointments so limited? Because, if they expired before the session of
Congress, the evil sought to be avoided interruption in the discharge of essential functions may
take place. Because the same evil would result if the appointments ceased to be effective during the session of
Congress and before its adjournment. Upon the other hand, once Congress has adjourned, the evil
aforementioned may easily be conjured by the issuance of other ad interim appointments or
reappointments. (Emphasis supplied)
Indeed, the timely application of the last sentence of Section 16, Article VII of the Constitution barely avoided
the interruption of essential government services in the May 2001 national elections. Following the decision
of this Court in Gaminde vs. Commission on Appointments,[39] promulgated on December 13, 2000, the terms of
office of constitutional officers first appointed under the Constitution would have to be counted starting
February 2, 1987, the date of ratification of the Constitution, regardless of the date of their actual
appointment. By this reckoning, the terms of office of three Commissioners of the COMELEC, including the
Chairman, would end on February 2, 2001.[40]
Then COMELEC Chairperson Harriet O. Demetriou was appointed only on January 11, 2000 to serve,
pursuant to her appointment papers, until February 15, 2002,[41] the original expiry date of the term of her
predecessor, Justice Bernardo P. Pardo, who was elevated to this Court. The original expiry date of the term
of Commissioner Teresita Dy-Liacco Flores was also February 15, 2002, while that of Commissioner Julio F.
Desamito was November 3, 2001.[42] The original expiry dates of the terms of office of Chairperson
Demetriou and Commissioners Flores and Desamito were therefore supposed to fall after the May 2001
elections. Suddenly and unexpectedly, because of the Gaminde ruling, there were three vacancies in the seven-
person COMELEC, with national elections looming less than three and one-half months away. To their
credit, Chairperson Demetriou and Commissioner Flores vacated their offices on February 2, 2001 and did
not question any more before this Court the applicability of the Gaminde ruling to their own situation.
In a Manifestation[43] dated December 28, 2000 filed with this Court in the Gaminde case, Chairperson
Demetriou stated that she was vacating her office on February 2, 2001, as she believed any delay in choosing
her successor might create a constitutional crisis in view of the proximity of the May 2001 national
elections. Commissioner Desamito chose to file a petition for intervention[44] in the Gaminde case but this
Court denied the intervention. Thus, Commissioner Desamito also vacated his office on February 2, 2001.
During an election year, Congress normally goes on voluntary recess between February and June considering
that many of the members of the House of Representatives and the Senate run for re-election. In 2001, the
Eleventh Congress adjourned from January 9, 2001 to June 3, 2001.[45] Concededly, there was no more time
for Benipayo, Borra and Tuason, who were originally extended ad interim appointments only on March 22,
2001, to be confirmed by the Commission on Appointments before the May 14, 2001 elections.
If Benipayo, Borra and Tuason were not extended ad interim appointments to fill up the three vacancies in the
COMELEC, there would only have been one division functioning in the COMELEC instead of two during
the May 2001 elections. Considering that the Constitution requires that all x x x election cases shall be heard
and decided in division,[46] the remaining one division would have been swamped with election
cases. Moreover, since under the Constitution motions for reconsideration shall be decided by the
Commission en banc, the mere absence of one of the four remaining members would have prevented a
quorum, a less than ideal situation considering that the Commissioners are expected to travel around the
country before, during and after the elections. There was a great probability that disruptions in the conduct
of the May 2001 elections could occur because of the three vacancies in the COMELEC. The successful
conduct of the May 2001 national elections, right after the tumultuous EDSA II and EDSA III events, was
certainly essential in safeguarding and strengthening our democracy.
Evidently, the exercise by the President in the instant case of her constitutional power to make ad
interim appointments prevented the occurrence of the very evil sought to be avoided by the second paragraph
of Section 16, Article VII of the Constitution. This power to make ad interim appointments is lodged in the
President to be exercised by her in her sound judgment. Under the second paragraph of Section 16, Article
VII of the Constitution, the President can choose either of two modes in appointing officials who are subject
to confirmation by the Commission on Appointments. First, while Congress is in session, the President may
nominate the prospective appointee, and pending consent of the Commission on Appointments, the nominee
cannot qualify and assume office. Second, during the recess of Congress, the President may extend an ad
interim appointment which allows the appointee to immediately qualify and assume office.
Whether the President chooses to nominate the prospective appointee or extend an ad interim appointment is a
matter within the prerogative of the President because the Constitution grants her that power. This Court
cannot inquire into the propriety of the choice made by the President in the exercise of her constitutional
power, absent grave abuse of discretion amounting to lack or excess of jurisdiction on her part, which has not
been shown in the instant case.
The issuance by Presidents of ad interim appointments to the COMELEC is a long-standing practice. Former
President Corazon Aquino issued an ad interimappointment to Commissioner Alfredo E. Abueg.[47] Former
President Fidel V. Ramos extended ad interim appointments to Commissioners Julio F. Desamito, Japal M.
Guiani, Graduacion A. Reyes-Claravall and Manolo F. Gorospe.[48] Former President Joseph Estrada also
extended ad interim appointments to Commissioners Abdul Gani M. Marohombsar, Luzviminda Tancangco,
Mehol K. Sadain and Ralph C. Lantion.[49]
The Presidents power to extend ad interim appointments may indeed briefly put the appointee at the mercy of
both the appointing and confirming powers. This situation, however, is only for a short period - from the
time of issuance of the ad interim appointment until the Commission on Appointments gives or withholds its
consent. The Constitution itself sanctions this situation, as a trade-off against the evil of disruptions in vital
government services. This is also part of the check-and-balance under the separation of powers, as a trade-off
against the evil of granting the President absolute and sole power to appoint. The Constitution has wisely
subjected the Presidents appointing power to the checking power of the legislature.
This situation, however, does not compromise the independence of the COMELEC as a constitutional body.
The vacancies in the COMELEC are precisely staggered to insure that the majority of its members hold
confirmed appointments, and not one President will appoint all the COMELEC members.[50] In the instant
case, the Commission on Appointments had long confirmed four[51] of the incumbent COMELEC members,
comprising a majority, who could now be removed from office only by impeachment. The special
constitutional safeguards that insure the independence of the COMELEC remain in place.[52] The COMELEC
enjoys fiscal autonomy, appoints its own officials and employees, and promulgates its own rules on pleadings
and practice. Moreover, the salaries of COMELEC members cannot be decreased during their tenure.
In fine, we rule that the ad interim appointments extended by the President to Benipayo, Borra and Tuason, as
COMELEC Chairman and Commissioners, respectively, do not constitute temporary or acting appointments
prohibited by Section 1 (2), Article IX-C of the Constitution.
Third Issue: The Constitutionality of Renewals of Appointments
Petitioner also agues that assuming the first ad interim appointments and the first assumption of office by
Benipayo, Borra and Tuason are constitutional, the renewal of the their ad interim appointments and their
subsequent assumption of office to the same positions violate the prohibition on reappointment under
Section 1 (2), Article IX-C of the Constitution, which provides as follows:
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,
three Members shall hold office for seven years, two Members for five years, and the last members for three
years, without reappointment. X x x. (Emphasis supplied)
Petitioner theorizes that once an ad interim appointee is by-passed by the Commission on Appointments, his ad
interim appointment can no longer be renewed because this will violate Section 1 (2), Article IX-C of the
Constitution which prohibits reappointments. Petitioner asserts that this is particularly true to permanent
appointees who have assumed office, which is the situation of Benipayo, Borra and Tuason if their ad
interim appointments are deemed permanent in character.
There is no dispute that an ad interim appointee disapproved by the Commission on Appointments can no
longer be extended a new appointment. The disapproval is a final decision of the Commission on
Appointments in the exercise of its checking power on the appointing authority of the President. The
disapproval is a decision on the merits, being a refusal by the Commission on Appointments to give its
consent after deliberating on the qualifications of the appointee. Since the Constitution does not provide for
any appeal from such decision, the disapproval is final and binding on the appointee as well as on the
appointing power. In this instance, the President can no longer renew the appointment not because of the
constitutional prohibition on reappointment, but because of a final decision by the Commission on
Appointments to withhold its consent to the appointment.
An ad interim appointment that is by-passed because of lack of time or failure of the Commission on
Appointments to organize is another matter. A by-passed appointment is one that has not been finally acted
upon on the merits by the Commission on Appointments at the close of the session of Congress. There is no
final decision by the Commission on Appointments to give or withhold its consent to the appointment as
required by the Constitution. Absent such decision, the President is free to renew the ad interim appointment
of a by-passed appointee. This is recognized in Section 17 of the Rules of the Commission on Appointments,
which provides as follows:
Section 17. Unacted Nominations or Appointments Returned to the President. Nominations or appointments
submitted by the President of the Philippines which are not finally acted upon at the close of the session of
Congress shall be returned to the President and, unless new nominations or appointments are made, shall
not again be considered by the Commission. (Emphasis supplied)
Hence, under the Rules of the Commission on Appointments, a by-passed appointment can be considered
again if the President renews the appointment.
It is well settled in this jurisdiction that the President can renew the ad interim appointments of by-passed
appointees. Justice Roberto Concepcion, Jr. lucidly explained in his concurring opinion in Guevara vs.
Inocentes[53] why by-passed ad interim appointees could be extended new appointments, thus:
In short, an ad interim appointment ceases to be effective upon disapproval by the Commission, because the
incumbent can not continue holding office over the positive objection of the Commission. It ceases, also,
upon the next adjournment of the Congress, simply because the President may then issue new
appointments - not because of implied disapproval of the Commission deduced from its inaction during the
session of Congress, for, under the Constitution, the Commission may affect adversely the interim
appointments only by action, never by omission. If the adjournment of Congress were an implied disapproval
of ad interim appointments made prior thereto, then the President could no longer appoint those so by-passed
by the Commission. But, the fact is that the President may reappoint them, thus clearly indicating that
the reason for said termination of the ad interimappointments is not the disapproval thereof allegedly inferred
from said omission of the Commission, but the circumstance that upon said adjournment of the Congress,
the President is free to make ad interim appointments or reappointments. (Emphasis supplied)
Guevara was decided under the 1935 Constitution from where the second paragraph of Section 16, Article
VII of the present Constitution on ad interim appointments was lifted verbatim.[54] The jurisprudence under
the 1935 Constitution governing ad interim appointments by the President is doubtless applicable to the
present Constitution. The established practice under the present Constitution is that the President can renew
the appointments of by-passed ad interimappointees. This is a continuation of the well-recognized practice
under the 1935 Constitution, interrupted only by the 1973 Constitution which did not provide for a
Commission on Appointments but vested sole appointing power in the President.
The prohibition on reappointment in Section 1 (2), Article IX-C of the Constitution applies neither to
disapproved nor by-passed ad interim appointments. A disapproved ad interim appointment cannot be revived
by another ad interim appointment because the disapproval is final under Section 16, Article VII of the
Constitution, and not because a reappointment is prohibited under Section 1 (2), Article IX-C of the
Constitution. A by-passed ad interim appointment can be revived by a new ad interim appointment because
there is no final disapproval under Section 16, Article VII of the Constitution, and such new appointment will
not result in the appointee serving beyond the fixed term of seven years.
Section 1 (2), Article IX-C of the Constitution provides that [t]he Chairman and the Commissioners shall be
appointed x x x for a term of seven years without reappointment. (Emphasis supplied) There are four
situations where this provision will apply. The first situation is where an ad interim appointee to the
COMELEC, after confirmation by the Commission on Appointments, serves his full seven-year term. Such
person cannot be reappointed to the COMELEC, whether as a member or as a chairman, because he will then
be actually serving more than seven years. The second situation is where the appointee, after confirmation,
serves a part of his term and then resigns before his seven-year term of office ends. Such person cannot be
reappointed, whether as a member or as a chair, to a vacancy arising from retirement because a reappointment
will result in the appointee also serving more than seven years. The third situation is where the appointee is
confirmed to serve the unexpired term of someone who died or resigned, and the appointee completes the
unexpired term. Such person cannot be reappointed, whether as a member or chair, to a vacancy arising from
retirement because a reappointment will result in the appointee also serving more than seven years.
The fourth situation is where the appointee has previously served a term of less than seven years, and a
vacancy arises from death or resignation. Even if it will not result in his serving more than seven years, a
reappointment of such person to serve an unexpired term is also prohibited because his situation will be
similar to those appointed under the second sentence of Section 1 (2), Article IX-C of the Constitution. This
provision refers to the first appointees under the Constitution whose terms of office are less than seven years,
but are barred from ever being reappointed under any situation. Not one of these four situations applies
to the case of Benipayo, Borra or Tuason.
The framers of the Constitution made it quite clear that any person who has served any term of office as
COMELEC member whether for a full term of seven years, a truncated term of five or three years, or
even for an unexpired term of any length of time can no longer be reappointed to the
COMELEC. Commissioner Foz succinctly explained this intent in this manner:
MR. FOZ. But there is the argument made in the concurring opinion of Justice Angelo Bautista in the case
of Visarra vs. Miraflor, to the effect that the prohibition on reappointment applies only when the term or
tenure is for seven years. But in cases where the appointee serves only for less than seven years, he would be
entitled to reappointment. Unless we put the qualifying words without reappointment in the case of
those appointed, then it is possible that an interpretation could be made later on their case, they can
still be reappointed to serve for a total of seven years.
Precisely, we are foreclosing that possibility by making it clear that even in the case of those first
appointed under the Constitution, no reappointment can be made.[55](Emphasis supplied)
In Visarra vs. Miraflor,[56] Justice Angelo Bautista, in his concurring opinion, quoted Nacionalista vs. De
Vera[57] that a [r]eappointment is not prohibited when a Commissioner has held office only for, say, three or
six years, provided his term will not exceed nine years in all. This was the interpretation despite the express
provision in the 1935 Constitution that a COMELEC member shall hold office for a term of nine years and
may not be reappointed.
To foreclose this interpretation, the phrase without reappointment appears twice in Section 1 (2), Article
IX-C of the present Constitution. The first phrase prohibits reappointment of any person previously
appointed for a term of seven years. The second phrase prohibits reappointment of any person previously
appointed for a term of five or three years pursuant to the first set of appointees under the Constitution. In
either case, it does not matter if the person previously appointed completes his term of office for the intention
is to prohibit any reappointment of any kind.
However, an ad interim appointment that has lapsed by inaction of the Commission on Appointments does not
constitute a term of office. The period from the time the ad interim appointment is made to the time it lapses is
neither a fixed term nor an unexpired term. To hold otherwise would mean that the President by his unilateral
action could start and complete the running of a term of office in the COMELEC without the consent of the
Commission on Appointments. This interpretation renders inutile the confirming power of the Commission
on Appointments.
The phrase without reappointment applies only to one who has been appointed by the President and
confirmed by the Commission on Appointments, whether or not such person completes his term of
office. There must be a confirmation by the Commission on Appointments of the previous appointment
before the prohibition on reappointment can apply. To hold otherwise will lead to absurdities and negate the
Presidents power to make ad interim appointments.
In the great majority of cases, the Commission on Appointments usually fails to act, for lack of time, on the ad
interim appointments first issued to appointees. If such ad interim appointments can no longer be renewed, the
President will certainly hesitate to make ad interim appointments because most of her appointees will effectively
be disapproved by mere inaction of the Commission on Appointments. This will nullify the constitutional
power of the President to make ad interimappointments, a power intended to avoid disruptions in vital
government services. This Court cannot subscribe to a proposition that will wreak havoc on vital government
services.
The prohibition on reappointment is common to the three constitutional commissions. The framers of the
present Constitution prohibited reappointments for two reasons. The first is to prevent a second appointment
for those who have been previously appointed and confirmed even if they served for less than seven
years. The second is to insure that the members of the three constitutional commissions do not serve beyond
the fixed term of seven years. As reported in the Journal of the Constitutional Commission, Commissioner Vicente
B. Foz, who sponsored[58]the proposed articles on the three constitutional commissions, outlined the four
important features of the proposed articles, to wit:
Mr. Foz stated that the Committee had introduced basic changes in the common provision affecting the
three Constitutional Commissions, and which are: 1) fiscal autonomy which provides (that) appropriations
shall be automatically and regularly released to the Commission in the same manner (as) provided for the
Judiciary; 2) fixed term of office without reappointment on a staggered basis to ensure continuity of
functions and to minimize the opportunity of the President to appoint all the members during his
incumbency; 3) prohibition to decrease salaries of the members of the Commissions during their term of
office; and 4) appointments of members would not require confirmation.[59] (Emphasis supplied)
There were two important amendments subsequently made by the Constitutional Commission to these four
features. First, as discussed earlier, the framers of the Constitution decided to require confirmation by the
Commission on Appointments of all appointments to the constitutional commissions. Second, the framers
decided to strengthen further the prohibition on serving beyond the fixed seven-year term, in the light of a
former chair of the Commission on Audit remaining in office for 12 years despite his fixed term of seven
years. The following exchange in the deliberations of the Constitutional Commission is instructive:
MR. SUAREZ: These are only clarificatory questions, Madam President. May I call the sponsors attention,
first of all, to Section 2 (2) on the Civil Service Commission wherein it is stated: In no case shall any Member
be appointed in a temporary or acting capacity. I detect in the Committees proposed resolutions a
constitutional hangover, if I may use the term, from the past administration. Am I correct in concluding that
the reason the Committee introduced this particular provision is to avoid an incident similar to the case of the
Honorable Francisco Tantuico who was appointed in an acting capacity as Chairman of the Commission on
Audit for about 5 years from 1975 until 1980, and then in 1980, was appointed as Chairman with a tenure of
another 7 years. So, if we follow that appointment to (its) logical conclusion, he occupied that position for
about 12 years in violation of the Constitution?
MR. FOZ: It is only one of the considerations. Another is really to make sure that any member who is
appointed to any of the commissions does not serve beyond 7 years.[60] (Emphasis supplied)
Commissioner Christian Monsod further clarified the prohibition on reappointment in this manner:
"MR. MONSOD. If the (Commissioner) will read the whole Article, she will notice that there is no
reappointment of any kind and, therefore as a whole there is no way that somebody can serve for more than
seven years. The purpose of the last sentence is to make sure that this does not happen by including in
the appointment both temporary and acting capacities."[61] (Emphasis supplied)
Plainly, the prohibition on reappointment is intended to insure that there will be no reappointment of any
kind. On the other hand, the prohibition on temporary or acting appointments is intended to prevent any
circumvention of the prohibition on reappointment that may result in an appointees total term of office
exceeding seven years. The evils sought to be avoided by the twin prohibitions are very specific -
reappointment of any kind and exceeding ones term in office beyond the maximum period of seven years.
Not contented with these ironclad twin prohibitions, the framers of the Constitution tightened even further
the screws on those who might wish to extend their terms of office. Thus, the word designated was
inserted to plug any loophole that might be exploited by violators of the Constitution, as shown in the
following discussion in the Constitutional Commission:
MR. DE LOS REYES: On line 32, between the words appointed and in, I propose to insert the words
OR DESIGNATED so that the whole sentence will read: In no case shall any Member be appointed OR
DESIGNATED in a temporary or acting capacity.
THE PRESIDING OFFICER (Mr. Trenas): What does the Committee say?
MR. FOZ: But it changes the meaning of this sentence. The sentence reads: In no case shall any Member be
appointed in a temporary or acting capacity.
MR. DE LOS REYES: Mr. Presiding Officer, the reason for this amendment is that some lawyers make a
distinction between an appointment and a designation. The Gentleman will recall that in the case of
Commissioner on Audit Tantuico, I think his term exceeded the constitutional limit but the Minister of Justice
opined that it did not because he was only designated during the time that he acted as Commissioner on
Audit. So, in order to erase that distinction between appointment and designation, we should specifically
place the word so that there will be no more ambiguity. In no case shall any Member be appointed OR
DESIGNATED in a temporary or acting capacity.
MR. FOZ: The amendment is accepted, Mr. Presiding Officer.
MR. DE LOS REYES: Thank you.
THE PRESIDING OFFICER (Mr. Trenas): Is there any objection? (Silence) The Chair hears none; the
amendment is approved.[62]
The ad interim appointments and subsequent renewals of appointments of Benipayo, Borra and Tuason do not
violate the prohibition on reappointments because there were no previous appointments that were confirmed
by the Commission on Appointments. A reappointment presupposes a previous confirmed
appointment. The same ad interim appointments and renewals of appointments will also not breach the seven-
year term limit because all the appointments and renewals of appointments of Benipayo, Borra and
Tuason are for a fixed term expiring on February 2, 2008.[63] Any delay in their confirmation will not
extend the expiry date of their terms of office. Consequently, there is no danger whatsoever that the renewal
of the ad interim appointments of these three respondents will result in any of the evils intended to be
exorcised by the twin prohibitions in the Constitution. The continuing renewal of the ad interim appointment
of these three respondents, for so long as their terms of office expire on February 2, 2008, does not violate the
prohibition on reappointments in Section 1 (2), Article IX-C of the Constitution.
Fourth Issue: Respondent Benipayos Authority to Reassign Petitioner
Petitioner claims that Benipayo has no authority to remove her as Director IV of the EID and reassign her to
the Law Department. Petitioner further argues that only the COMELEC, acting as a collegial body, can
authorize such reassignment. Moreover, petitioner maintains that a reassignment without her consent
amounts to removal from office without due process and therefore illegal.
Petitioners posturing will hold water if Benipayo does not possess any color of title to the office of Chairman
of the COMELEC. We have ruled, however, that Benipayo is the de jure COMELEC Chairman, and
consequently he has full authority to exercise all the powers of that office for so long as his ad
interim appointment remains effective. Under Section 7 (4), Chapter 2, Subtitle C, Book V of the Revised
Administrative Code, the Chairman of the COMELEC is vested with the following power:
Section 7. Chairman as Executive Officer; Powers and Duties. The Chairman, who shall be the Chief Executive
Officer of the Commission, shall:
xxx
(4) Make temporary assignments, rotate and transfer personnel in accordance with the provisions of the
Civil Service Law. (Emphasis supplied)
The Chairman, as the Chief Executive of the COMELEC, is expressly empowered on his own authority to
transfer or reassign COMELEC personnel in accordance with the Civil Service Law. In the exercise of this
power, the Chairman is not required by law to secure the approval of the COMELEC en banc.
Petitioners appointment papers dated February 2, 1999, February 15, 2000 and February 15, 2001, attached as
Annexes X, Y and Z to her Petition, indisputably show that she held her Director IV position in the
EID only in an acting or temporary capacity.[64] Petitioner is not a Career Executive Service (CES) officer,
and neither does she hold Career Executive Service Eligibility, which are necessary qualifications for holding
the position of Director IV as prescribed in the Qualifications Standards (Revised 1987) issued by the Civil
Service Commission.[65] Obviously, petitioner does not enjoy security of tenure as Director IV. In Secretary of
Justice Serafin Cuevas vs. Atty. Josefina G. Bacal,[66] this Court held that:
As respondent does not have the rank appropriate for the position of Chief Public Attorney, her
appointment to that position cannot be considered permanent, and she can claim no security of tenure in
respect of that position. As held in Achacoso v. Macaraig:
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 moments notice, conformably to established
jurisprudence x x x.
The mere fact that a position belongs to the Career Service does not automatically confer security of tenure on
its occupant even if he does not possess the required qualifications. Such right will have to depend on the
nature of his appointment, which in turn depends on his eligibility or lack of it. A person who does not have
the requisite qualifications for the position cannot be appointed to it in the first place, or as an exception to
the rule, may be appointed to it merely in an acting capacity in the absence of appropriate eligibles. The
appointment extended to him cannot be regarded as permanent even if it may be so designated x x x.
Having been appointed merely in a temporary or acting capacity, and not possessed of the necessary
qualifications to hold the position of Director IV, petitioner has no legal basis in claiming that her
reassignment was contrary to the Civil Service Law. This time, the vigorous argument of petitioner that a
temporary or acting appointment can be withdrawn or revoked at the pleasure of the appointing power
happens to apply squarely to her situation.
Still, petitioner assails her reassignment, carried out during the election period, as a prohibited act under
Section 261 (h) of the Omnibus Election Code, which provides as follows:
Section 261. Prohibited Acts. The following shall be guilty of an election offense:
xxx
(h) Transfer of officers and employees in the civil service - Any public official who makes or causes any
transfer or detail whatever of any officer or employee in the civil service including public school teachers,
within the election period except upon prior approval of the Commission.
Petitioner claims that Benipayo failed to secure the approval of the COMELEC en banc to effect transfers or
reassignments of COMELEC personnel during the election period.[67] Moreover, petitioner insists that the
COMELEC en banc must concur to every transfer or reassignment of COMELEC personnel during the
election period.
Contrary to petitioners allegation, the COMELEC did in fact issue COMELEC Resolution No. 3300 dated
November 6, 2000,[68] exempting the COMELEC from Section 261 (h) of the Omnibus Election Code. The
resolution states in part:
WHEREAS, Sec. 56 and Sec. 261, paragraphs (g) and (h), of the Omnibus Election Code provides as
follows:
xxx
Sec. 261. Prohibited Acts. The following shall be guilty of an election offense:
xxx
(h) Transfer of officers and employees in the civil service Any public official who makes or causes any
transfer or detail whatever of any officer or employee in the civil service including public school teachers,
within the election period except upon approval of the Commission.
WHEREAS, the aforequoted provisions are applicable to the national and local elections on May 14, 2001;
WHEREAS, there is an urgent need to appoint, transfer or reassign personnel of the Commission on
Elections during the prohibited period in order that it can carry out its constitutional duty to conduct free,
orderly, honest, peaceful and credible elections;
NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred upon it by the
Constitution, the Omnibus Election Code and other election laws, as an exception to the foregoing
prohibitions, has RESOLVED, as it is hereby RESOLVED, to appoint, hire new employees or fill new
positions and transfer or reassign its personnel, when necessary in the effective performance of its
mandated functions during the prohibited period, provided that the changes in the assignment of its field
personnel within the thirty-day period before election day shall be effected after due notice and
hearing. (Emphasis supplied)
The proviso in COMELEC Resolution No. 3300, requiring due notice and hearing before any transfer or
reassignment can be made within thirty days prior to election day, refers only to COMELEC field personnel
and not to head office personnel like the petitioner. Under the Revised Administrative Code,[69] the
COMELEC Chairman is the sole officer specifically vested with the power to transfer or reassign
COMELEC personnel. The COMELEC Chairman will logically exercise the authority to transfer or reassign
COMELEC personnel pursuant to COMELEC Resolution No. 3300. The COMELEC en banc cannot
arrogate unto itself this power because that will mean amending the Revised Administrative Code, an act the
COMELEC en banc cannot legally do.

COMELEC Resolution No. 3300 does not require that every transfer or reassignment of COMELEC
personnel should carry the concurrence of the COMELEC as a collegial body. Interpreting Resolution No.
3300 to require such concurrence will render the resolution meaningless since the COMELEC en banc will
have to approve every personnel transfer or reassignment, making the resolution utterly useless. Resolution
No. 3300 should be interpreted for what it is, an approval to effect transfers and reassignments of personnel,
without need of securing a second approval from the COMELEC en banc to actually implement such transfer
or reassignment.

The COMELEC Chairman is the official expressly authorized by law to transfer or reassign COMELEC
personnel. The person holding that office, in a de jurecapacity, is Benipayo. The COMELEC en banc, in
COMELEC Resolution No. 3300, approved the transfer or reassignment of COMELEC personnel during the
election period. Thus, Benipayos order reassigning petitioner from the EID to the Law Department does not
violate Section 261 (h) of the Omnibus Election Code. For the same reason, Benipayos order designating
Cinco Officer-in-Charge of the EID is legally unassailable.

Fifth Issue: Legality of Disbursements to Respondents

Based on the foregoing discussion, respondent Gideon C. De Guzman, Officer-in-Charge of the Finance
Services Department of the Commission on Elections, did not act in excess of jurisdiction in paying the
salaries and other emoluments of Benipayo, Borra, Tuason and Cinco.

WHEREFORE, the petition is dismissed for lack of merit. Costs against petitioner.
 FIRST DIVISION
G.R. No. 139251, August 29, 2002
MA. ERLY P. ERASMO, PETITIONER, VS. HOME INSURANCE & GUARANTY
CORPORATION, RESPONDENT.
DECISION
AUSTRIA-MARTINEZ, J.:
Before us is a petition for review on certiorari under Rule 45 of the Rules of Court contesting the Decision of
the Court of Appeals dated June 30, 1999 in CA-G.R. SP No. 47037 which affirmed the decision of the Civil
Service Commission dismissing the appeal of petitioner Ma. Erly P. Erasmo and denying her request for
reinstatement, payment of back wages and other benefits.[1]
Petitioner started working with respondent Home Insurance & Guaranty Corporation (HIGC) in 1982 as a
consultant on the Project Evaluation Department,[2]and held various positions therein, including Manager of
Project Evaluation Department (April 1, 1982 to December 31, 1985),[3] Manager of Accounts Management
(January 1, 1986 to April 1987),[4] Assistant Vice-President of Accounts Management (May 1987 to July
1988),[5] Manager II of Guaranty and Credit Insurance Department (August 1988 to March 15, 1992),[6] and
Officer-in-Charge of Technical Service/Guaranty and Credit Insurance Group (TS/GCIG) (March 16 to June
14, 1992),[7] until finally, she was promoted to Vice-President of TS/GCIG on June 15, 1992.[8] The nature of
her appointment was promotion and her employment status was "temporary," since the position is a Career
Executive Service Office (CESO) and petitioner lacks the required CES eligibility.[9]
On February 24, 1993 petitioner was administratively charged with: (1) neglect of duty, (2) incompetence in
the performance of official duties, (3) conduct prejudicial to the best interest of the service, and (4) directly or
indirectly having financial and material interest in any transaction requiring the approval of her office. [10]
In the meantime, petitioner appealed the status of her temporary appointment to the Civil Service
Commission (CSC), which on March 12, 1993, issued Resolution No. 93-990, holding that a CES eligibility is
required to a CES position, and even if one possesses such eligibility, still the appointment cannot be
considered permanent unless an appointment to the rank has been granted by the President of the
Philippines.[11]
On June 10, 1993, respondent, through its President, Fernando M. Miranda, Jr., wrote petitioner, informing
her that by operation of law, your appointment shall be deemed terminated and shall automatically cease to
have further force and effect at the close of office hours on the expiration of your appointment. She was also
advised that the pendency of the administrative case against her precludes any renewal of her appointment.[12]
Petitioner, through counsel, then sought the opinion of the Executive Director of the Career Executive
Service Board who, on August 31, 1993, replied that a temporary appointment to a CES position can be
revoked at any time by the appointing authority, without waiting for a specific period to lapse; that the filing
of an administrative case does not automatically revoke the appointment nor does it affect the validity of the
temporary appointment; and that for the termination to be effective, there must be a categorical and/or
positive act of termination of service.[13]
Encouraged by said opinion, petitioner wrote respondent seeking reinstatement to her previous position with
back wages, but her request was denied. She was also informed that the position that she vacated has already
been filled up and approved by the CSC on a permanent basis.[14]
When the investigating committee of the HIGC recommended the dismissal of the charges against petitioner
on June 29, 1995,[15] the latter again wrote respondent asking that she be allowed to continue to discharge her
duties and responsibilities as VP for TS/GCIG, alleging that respondent furnished her with a copy of the
report of the investigation committee only eight (8) months thereafter. Again, respondent denied her
demands.[16]
One (1) year after, petitioner wrote the Chairperson of the CSC, appealing her case.[17] The CSC dismissed her
appeal on February 3, 1998 per Resolution No. 980182. According to the CSC: (1) petitioner is not protected
by the security of tenure clause under the Constitution because she was holding her position of Vice-President
under a temporary status; (2) her appeal was filed beyond the 15-day reglementary period; and (3) the
appointing authority cannot generally be compelled to issue an appointment.[18]
On petition for review, the Court of Appeals affirmed the CSCs resolution and dismissed the petition for lack
of merit.[19]
Petitioner now comes before this Court alleging the following errors committed by the appellate court:
I
THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT A PERMANENT CIVIL
SERVICE EMPLOYEE, LIKE THE PETITIONER WHO WORKED WITH RESPONDENT HIGC
CONTINUOUSLY FOR TWELVE (12) YEARS HOLDING VARIOUS MANAGERIAL POSITIONS
AND WHO ACCEPTED A PROMOTIONAL APPOINTMENT AS HIGCS VICE PRESIDENT OF
TS/GCIG SUBJECT TO HER COMPLIANCE OF CIVIL SERVICE ELIGIBILITY WHICH
PETITIONER DULY COMPLIED WITH, IS STILL TERMINABLE AT THE PLEASURE AND
DISCRETION OF THE APPOINTING POWER.
II
THE HONORABLE COURT OF APPEALS ERRED IN FINDING THAT THE APPROVAL OF THE
PERMANENT APPOINTMENT OF PETITIONERS SUCCESSOR TO THE POSITION OF VICE
PRESIDENT OF RESPONDENTS TS/GCIG AS PER BOARD RESOLUTION NO.55-1993
RATIFIED PETITIONERS SEPARATION FROM THE HIGC.
III
THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT THE DOCTRINE
ENUNCIATED IN THE CASE OF ACHACOSO VS. MACARAIG, 195 SCRA 235 (MARCH 13, 1991)
APPLIES TO PETITIONER.
IV
THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT PETITIONER IS NOT
ENTITLED TO BE REVERTED TO THE POSITION SHE WAS OCCUPYING PRIOR TO HER
APPOINTMENT AS VICE PRESIDENT FOR TS/GCIG ON THE GROUND THAT HIGC HAS
EXERCISED ITS PREROGATIVE IN RESPECT OF PETITIONERS TENURE BY NOT
RENEWING HER TEMPORARY APPOINTMENT, AND HER CONTINUANCE IN HIGC
SERVICE, BY NOT REAPPOINTING HER TO HER FORMER POSITION.
V
THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT PETITIONERS APPEAL
IN THE CIVIL SERVICE COMMISSION WAS FILED BEYOND THE REGLEMENTARY
PERIOD.[20]
The principal issue to be resolved in this case is whether or not petitioner is entitled to be reinstated to the
position of Vice-President of TS/GCIG of respondent HIGC.
We answer in the negative.
The facts of this case indubitably show that petitioners promotional appointment as Vice-President of
TS/GCIG is merely temporary in nature. Her appointment papers dated June 11, 1992 clearly indicate
it.[21] This is because petitioner does not possess a career executive service eligibility which is necessary for the
position of Vice-President of TS/GCIG, it being a career service executive office. Her new appointment,
being temporary in character, was terminable at the pleasure of the appointing power with or without a
cause,[22] and petitioner does not enjoy security of tenure.
In the recent case of Matibag v. Benipayo, we reiterated the long standing ruling that a person who is issued a
temporary appointment does not enjoy security of tenure, thus:
As respondent does not have the rank appropriate for the position of Chief Public Attorney, her
appointment to that position cannot be considered permanent, and she can claim no security of tenure in
respect of that position. As held in Achacoso v. Macaraig:
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 moments notice, conformably to established
jurisprudence
informed of the real objective of the contract. It was also ruled that the contract was void and cannot be the
basis for the claim that Palmera abandoned his post.[27]
The foregoing circumstances are not present in petitioners case. For one, it cannot be deduced that she did
not understand the implications of her promotional, albeit temporary, appointment. In the first place, she was
under no obligation to accept such promotion, for there is no law that compels an employee to accept a
promotion, as a promotion is in the nature of a gift or reward, which a person has a right to refuse.[28] And
although she was formerly holding a permanent appointment, she accepted such temporary appointment.
Having done so, petitioner had abandoned or given up her former position. When she accepted the temporary
appointment, in effect, she abandoned her right to security of tenure as we have ruled in Romualdez v. Civil
Service Commission, to wit:
x x x This is not a case of removal from office. Indeed, when he accepted this temporary appointment he
was thereby effectively divested of security of tenure. A temporary appointment does not give the appointee
any definite tenure of office but makes it dependent upon the pleasure of the appointing power. Thus, the
matter of converting such a temporary appointment to a permanent one is addressed to the sound discretion
of the appointing authority. Respondent CSC cannot direct the appointing authority to make such an
appointment if it is not so disposed.[29]
For another, the crucial fact remains --- petitioner does not possess the required CES eligibility to qualify her for the
position. While the law allows in exceptional cases the appointment of a non-CES eligible provided that the
appointee subsequently passes the CES Examinations,[30] petitioner is yet to completely pass and attain her
CES eligibility. Clearly therefore, the Palmera case is not applicable, and respondent cannot be compelled to
reinstate petitioner.
On the matter of whether or not petitioner may be reverted to her position previous to her appointment as
VP for TS/GCIG, again, we must answer in the negative. Suffice it to say that the power of appointment is
essentially discretionary and cannot be controlled, not even by the Court, as long as it is exercised properly by
the appointing authority.[31]

The mere fact that a position belongs to the Career Service does not automatically confer security of tenure
on its occupant even if he does not possess the required qualifications. Such right will have to depend on the
nature of his appointment, which in turn depends on his eligibility or lack of it. A person who does not have
the requisite qualifications for the position cannot be appointed to it in the first place, or as an exception to
the rule, may be appointed to it merely in an acting capacity in the absence of appropriate eligibles. The
appointment extended to him cannot be regarded as permanent even if it may be so designated [23]
Finally, petitioner insists that she timely brought her case to the Civil Service Commission. According to her,
her letter to the CSC was not an appeal but a petition seeking to implement the decision of the investigating
committee. But whether her letter to the CSC was an appeal or a petition, the CSC nevertheless entertained
and decided on her petition or appeal which decision we find to be without any reversible error.
WHEREFORE, the petition for review on certiorari is hereby DENIED for lack of merit.

Petitioner maintains that we apply the ruling in Palmera v. Civil Service Commission, 235 SCRA 87 1994,
instead of Achacoso v. Macaraig, 195 SCRA 235 1991.[24] This, however, is not possible.

The Achacoso case, penned by Justice Isagani Cruz in 1991, laid down the jurisprudential basis in cases involving
security of tenure in career executive service positions.[25] Simply put, it was ruled therein that a CES eligibility
is required for a CES position, such that an appointment of one who does not possess such eligibility shall be
temporary and may be withdrawn at will by the appointing authority and at a moments notice.[26] Thus, it
was concluded that Achacoso, not being CES eligible, was merely holding a temporary appointment, and may
be validly removed. His separation is termed as expiration of term.

On the other hand, in the Palmera case, likewise penned by Justice Isagani Cruz, this time in 1994, it was
inferred from the circumstances of the case that Palmera, who accepted a contractual appointment, had no
intention of abandoning his permanent position and security of tenure. Having worked in the government for
34 years, it was held that by signing the contract, Palmera couldnt be reasonably supposed to have knowingly
relinquished his permanent post and all its concomitant rights and benefits. Also, the petitioner was already
getting on in years and could not afford to face an uncertain future without a regular and steady income. More
importantly, Palmera was led to believe that the contract he signed was merely a subterfuge to provide legal
basis for the payment of his salary for the period of January 1 to December 31, 1987, and he was not
 EN BANC
G.R. No. 149451, May 08, 2003
REMEDIOS S. PADILLA, PETITIONER, VS. THE HONORABLE CIVIL SERVICE
COMMISSION AND DEPARTMENT OF LABOR AND EMPLOYMENT, RESPONDENTS.
DECISION
CORONA, J.:
Before this Court is a petition for review of the decision[1] dated January 22, 2001 of the Court of Appeals
affirming (1) Resolution No. 980256[2] dated February 5, 1998 of the Civil Service Commission (CSC)
dismissing petitioner Remedios Padilla's appeal and (2) Resolution No. 981425[3] dated June 10, 1998 of CSC
denying her motion for reconsideration.
The antecedent facts, as found by respondent CSC and affirmed by the Court of Appeals, follow.
On January 18, 1982, petitioner Remedios Padilla assumed the permanent position of Clerk II in the then
Ministry of Labor and Employment. On May 11, 1983, petitioner was promoted to the position of Labor
Development Assistant. Without waiting for the CSC's approval of her appointment, she assumed her new
position.
On March 4, 1985, CSC-NCR Regional Director Aurora de Leon sent a 1st Indorsement to the Minister of
Labor and Employment disapproving petitioner's appointment as Labor Development Assistant on the
ground that she failed to meet the eligibility requirement for the position. Maria Esther Manigque, Officer-In-
Charge of the Institute of Labor and Manpower Studies, sought reconsideration of respondent CSC's ruling
by pointing out petitioner's satisfactory performance. It was denied. In May 1985, petitioner resigned from the
service citing "personal reasons."
On July 28, 1985, petitioner took the Career Service Examination (Professional Level). After passing the same
in August, 1985, she re-applied at the respondent Department of Labor and Employment (DOLE). She was
appointed as Casual Research Assistant on October 17, 1988, effective until November 30, 1988. Upon
expiration of her appointment, the same was extended to December 31, 1988. From January 1989 until
December 1989, petitioner occupied the position of Casual Technical.
Due to the implementation of RA 6758, otherwise known as the Salary Standardization Act of 1989, casual
items such as Casual Research Assistant and Casual Technical were abolished. Petitioner was offered the
position of Clerk II (the only available permanent position then) for which the Selection Board deemed her
qualified. However, she declined the offer.
On January 2, 1990, petitioner was appointed Casual Clerk III, effective till the end of June 1990. After the
expiration of her appointment as a casual employee, petitioner was no longer given any position. She then
requested the monetary conversion of her unused sick and vacation leaves which respondent DOLE granted.
Nevertheless, petitioner appealed her alleged termination as casual employee to the CSC but this was
dismissed for having been filed out of time. [4]
Thereafter, petitioner filed a letter-complaint addressed to then Secretary of Justice Teofisto Guingona. The
letter-complaint was forwarded to respondent DOLE and later to the CSC for appropriate action. Acting on
the complaint, the CSC treated the same as a petition to seek relief. In its Resolution No. 980256 dated
February 5, 1998, the CSC dismissed the petition and denied petitioner's claim. Her motion for
reconsideration was likewise denied in CSC Resolution No. 981425 dated June 10, 1998.
Petitioner appealed the CSC resolutions to the Court of Appeals. On January 22, 2001, the appellate court
rendered a decision, the dispositive portion of which read:
WHEREFORE, in view of the foregoing, the petition is DENIED and accordingly DISMISSED for lack of
merit. Accordingly, the assailed Resolution No. 98-0256 dated February 5, 1998 issued by the Civil Service
Commission dismissing the petitioner's appeal, as well as its Resolution No. 981425 dated June 10, 1998, is
(sic) AFFIRMED.
SO ORDERED.[5]
The Court of Appeals held that the CSC had the power to revoke the appointment of a public officer whose
qualification did not meet the minimum requirements of the law. To refute petitioner's contention that
respondent DOLE was obliged to give her a permanent position upon becoming eligible, the appellate court
ruled that, although the petitioner was a civil service eligible, her acceptance of a temporary appointment as a
casual vested her no right to security of tenure. Her appointment depended exclusively on the pleasure of the
appointing authority.[6]
On July 4, 2001, the appellate court issued a resolution[7] denying petitioner's motion for reconsideration.
Hence, this appeal based on the following assignments of error:
I
WHETHER OR NOT THE TERMINATION OF PETITIONER IS LEGAL.
II
WHETHER OR NOT THE DISMISSAL OF HER COMPLAINT BY PUBLIC RESPONDENT CIVIL
SERVICE COMMISSION WAS PROPER UNDER THE CIRCUMSTANCES.[8]
Petitioner does not question anymore the disapproval of her appointment as Labor Development Assistant
due to her failure to meet the eligibility requirements. However, she invokes her alleged right to be reinstated
to a permanent position considering that she has since attained the required civil service eligibility and that she
used to hold a permanent position. Petitioner bewails the fact that she ended up as a casual employee despite
her civil service eligibility and without any derogatory record during her stint in the government. To support
her claim, she cites Section 24 (d) of PD 807, otherwise known as the Civil Service Law of 1975, which states
that "(a)ny 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."
She also contends that she was not accorded due process when she was removed from her permanent
position without prior notice. Neither was she given an opportunity to explain why she should not be
removed from office.
Did respondent DOLE violate petitioner's purported right to security of tenure? We do not think so.
The jurisdiction of this Court over cases brought to it from the Court of Appeals via Rule 45 of the Rules of
Court is limited to reviewing errors of law.[9] The factual findings of the Court of Appeals are generally
conclusive and may not be reviewed on appeal.[10] We have good reason to apply this well-entrenched
principle in the instant case because the factual findings of the Court of Appeals affirm the findings of fact of
the CSC.
One of the exceptions to the rule is when the appellate court's factual disquisitions are not supported by
evidence.[11] In the case at bar, petitioner seeks reinstatement on the ground that she was unjustly removed
from the service, which was contrary to the appellate court's finding that she voluntarily resigned. Considering
that petitioner's submission was premised on an alleged misapprehension of facts, she had the burden of
showing that the CSC and the appellate court's findings of fact were not supported by evidence.[12] However,
she fell short of that responsibility and ended up with hollow claims.
On the other hand, the Office of the Solicitor General (OSG), representing respondents CSC and DOLE,
adequately proved that petitioner voluntarily resigned and was never removed from the service. The OSG
presented as evidence petitioner's own letter in 1990 addressed to Sec. Flerida Ruth Romero,[13] then Special
Assistant to the President and Presidential Legislative Liaison Officer, which read:
In 1985, The Civil Service Commission (CSC) disapproved my appointment because the qualification standard
for the position of Labor Development Assistant was raised from sub-professional to professional level.
Despite my best effort to appeal before the Civil Service Commission, I never got a favorable response. I was
hurt so much that I decided to resign in April 1985.[14] (underlining supplied)
Petitioner used to occupy the permanent position of Clerk II before the disapproval of her appointment for
Labor Development Assistant, a higher permanent position. Thereafter, she voluntarily resigned and later
came back to occupy casual positions only despite passing the eligibility requirement for a permanent position.
Like removal for just cause, voluntary resignation results in the abdication of all present and future rights
accorded to an employee and in the severance of all work-related ties between the employer and the employee.
When she returned to work for respondent DOLE, the same was not a continuation of her previous service
but the start of a new work slate. Petitioner could not therefore demand from respondent DOLE her
reinstatement to a permanent position under Section 24 (d) of PD 807 inasmuch as she was never unjustly
removed.

We agree with the observation of the OSG that when petitioner re-applied for and was offered the position of
Casual Research Assistant and later Casual Technical, she readily and unqualifiedly accepted the said offer.
Having accepted the position of a casual employee, petitioner should have known that she had no security of
tenure and could thus be separated from the service anytime.

We also take note of the fact that in December 1989, after finishing her contract as a Casual Technical,
respondent DOLE offered to petitioner the permanent position of Clerk II (the only available permanent
position then) for which the Selection Board deemed her qualified. However, she declined the offer and
instead opted to accept another casual position as Casual Clerk III. Respondent DOLE therefore gave her the
opportunity to re-assume a permanent position but petitioner was apparently bent on acquiring a position
equal to a Labor Development Assistant, a position she could not obtain by right due to her earlier
resignation. On the ground of estoppel, petitioner is barred from asserting her right to a permanent position.

Not having been unjustly removed from the service, it follows that petitioner's right to due process was not
violated. In fact, there was no need to furnish her a notice of termination since, as a casual employee,
petitioner was aware of the date of expiration of her temporary appointment.

WHEREFORE, the petition is hereby DENIED. No costs.

 EN BANC
G.R. No. 158737, August 31, 2004
CIVIL SERVICE COMMISSION, PETITIONER, VS. SATURNINO DE LA CRUZ,
RESPONDENT.
DECISION
CORONA, J.:
Before us is a petition for certiorari under Rule 45 of the Revised Rules of Court, seeking to review and set
aside the May 14, 2003 decision[1] and June 17, 2003 resolution[2] of the Court of Appeals in CA-G.R. SP No.
54088, entitled Saturnino de la Cruz vs. Civil Service Commission. In that decision, the appellate court set aside CSC
Resolution Nos. 98-2970 and 99-1451, consequently approving Saturnino de la Cruz appointment as Chief of
the Aviation Safety Regulation Office.
The pertinent facts,[3] as narrated by the Office of the Solicitor General, follow.
Respondent Saturnino de la Cruz is an employee of the Air Transportation Office, DOTC, presently holding
the position of Chief Aviation Safety Regulation Officer of the Aviation Safety Division.
Respondent was promotionally appointed to the said position on November 28, 1994, duly attested by the
Civil Service Commission (CSC). But prior thereto, he was a Check Pilot II in the Air Transportation Office
(ATO).
In a letter dated February 9, 1995, Annabella A. Calamba of the Aviation Security Division of the ATO
formally filed with the Department of Transportation and Communication (DOTC) her protest against the
promotional appointment of respondent as Chief Aviation Safety Regulation Officer, claiming among others
that respondent did not meet the four-year supervisory requirement for said position.
On July 20, 1995, then DOTC Secretary Jesus B. Garcia rendered a decision finding the protest without merit.
Apparently dissatisfied, Calamba appealed the decision of the DOTC Secretary to the CSC-NCR.
Under date of October 17, 1995, Director Nelson Acebedo of CSC-NCR requested ATO Executive Director
Manuel Gilo to comment on the appeal and to submit to the CSC-NCR the documents pertinent thereto.
Since the CSC-NCR received no action on said request for comment, the CSC-NCR again wrote Director
Gilo regarding the matter on May 5, 1997. But to no avail.
On October 14, 1997, for the last time, the CSC-NCR reiterated to Director Gilo its request for comment.
On November 18, 1997, the CSC-NCR rendered its decision upholding the protest of Calamba and recalling
the approval of respondents appointment as Chief Aviation Safety Regulation Officer. Said the CSC-NCR:
After an initial evaluation of the protest, we find that the only issue to be resolved is whether or not the
protestee meets the minimum experience requirements as of the date of the protestees appointment to the
contested position. The contested position requires four years of work experience in position/s involving
management per Qualification Standards Manual prescribed by MC No. 46, s. 1993 and/or four years of
experience in planning, organizing, directing, coordinating and supervising the enforcement of air safety laws,
rules and regulations pertaining to licensing, rating and checking of all airmen and mechanics and regulation of
the activities of flying schools per ATO Qualification Standards xxx.
xxx xxx xxx
Taking into account his previous positions, Mr. dela Cruz could not have exercised managerial or supervisory
functions for the required number of years. x x x. Moreover, vis--vis the experience requirements of the
approved ATO Qualification Standards, Mr. dela Cruz work experience prior to his appointment to the
contested position did not concur therewith.
We are of the view therefore, that experience-wise, Mr. dela Cruz did not meet the requirements of the
contested position as of the date of his appointment thereto.
xxx xxx xxx.
Under date of December 11, 1997, ATO Director Gilo wrote the CSC-NCR asking for the suspension of the
order recalling respondents appointment, citing several reasons in support thereof.
Subsequently, a Manifestation with Motion to Admit Addendum dated December 22, 1997 was filed by
Director Gilo with the CSC-NCR. Director Gilo argued that Calamba had no legal personality to file a protest
because she is not a qualified next-in-rank and that the protest was filed out of time. He likewise asserted that
respondent had fully met the qualifications required of the position.
On January 5, 1998, CSC-NCR Director Acebedo ruled that there is no cogent reason to disturb earlier rulings
on the matter. He also denied ATO Director Gilos request, for lack of merit.
Strangely, in a letter dated January 13, 1998, CSC-NCR Director Acebedo granted Director Gilos request and
affirmed the approval of respondents appointment as Chief Aviation Safety Regulation Officer. He said:
xxx xxx xxx.
We reviewed again the documents including the Office Orders designating protestant dela Cruz to supervisory
position which were obviously issued during the latter part of 1993. A liberal consideration thereof would
come up with a little over one year of supervisory and managerial experience. Certainly, he was short of the
required number of years of work experience for the contested position as of the date of the issue of his
appointment. Nevertheless, considering that Mr. dela Cruz has already in his favor at least four years of
continuous supervisory/managerial experience from his designation as Acting Chief of the Aviation Safety
Regulation Division, supervened by his permanent appointment thereto as Chief thereof in November 28,
1994, up to present, he has substantially satisfied the four years experience required for appointment to the
contested position.
xxx xxx xxx.
In a letter dated January 26, 1998, Calamba requested the CSC to implement the January 5, 1998 ruling of the
CSC-NCR.
When asked by the CSC to clarify the conflicting rulings, CSC-NCR Director Acebedo explained that the
January 5, 1998 ruling is unofficial and inexistent.
The CSC treated Calambas request as an appeal. On November 13, 1998, the CSC rendered its Resolution
No. 98-2970, the decretal portion of which reads:
WHEREFORE, the appeal of Annabella A. Calamba is hereby granted. The appointment of Saturnino De la
Cruz as Chief Aviation Regulation Officer is disapproved. De la Cruz is hereby reverted to his former
position.
xxx xxx xxx.
Acting on the request for reconsideration filed by respondent, the CSC rendered its Resolution No. 99-1451
on July 6, 1999, the dispositive portion of which reads:
WHEREFORE, the instant motion for reconsideration of Saturnino dela Cruz is hereby denied.
Accordingly, CSC Resolution No. 98-2970 dated November 13, 1998 stands.
On August 11, 1999, respondent filed a petition for review with the Court of Appeals, docketed as CA-G.R.
SP No. 54088, seeking to nullify CSC Resolution Nos. 98-2970 and 99-1451.
In a decision[4] dated March 14, 2003, the Court of Appeals granted the petition by setting aside CSC
Resolution Nos. 98-2970 and 99-1451 and approving respondents appointment as Chief of the Aviation
Safety Regulation Office.
Petitioners motion for reconsideration was subsequently denied in a resolution issued on June 17, 2003.
Hence, the instant petition for review.
Petitioner contends that the appellate court erred in approving respondents appointment as Chief Aviation
Safety Regulation Officer despite his failure to meet the minimum four-year managerial and supervisory
qualification for the position. It further contends that respondents completion of the required
experience during the pendency of the present case cannot be counted in his favor because compliance with the
prescribed mandatory requirements should be as of the date of issuance of the appointment and not the date
of approval by the CSC or the resolution of the protest against the appointment.
The petition lacks merit.
Respondent would indeed lack the required years of work experience to qualify for the contested position if
the managerial standards in the first clause above were to be strictly followed. At the time of his permanent
appointment on November 28, 1994 as Chief Aviation Safety Regulation Officer, respondent had a little over
one year of managerial experience from his designation as Acting Chief of the Aviation Safety Division during
the latter part of 1993. However, the work already rendered by respondent in the ATO at the time of his
appointment was well within the supervisory standard in the second clause. Planning, organizing, directing,
coordinating and supervising the enforcement of air safety laws, rules and regulations pertaining to licensing,
rating and checking of all airmen and mechanics and regulation of the activities of flying schools were part of
the work performed by respondent for more than 13 years prior to his appointment.

Contrary to petitioners contention, respondent has sufficiently complied with the required experience Before respondent was appointed to the contested position, he had held several other positions in the ATO,
standards. namely:

First, upon the issuance of respondents appointment on November 28, 1994, the qualification standards of
the DOTC for the position of Chief Aviation Safety Regulation Officer were as follows: March 6, 1981 to July 15, 1981 Supply Checker
July 16, 1981 to February 5, 1983 Junior Aeronautical
Engineer
EDUCATION: BACHELORS DEGREE RELATED TO AVIATION February 6, 1983 to February 29, 1984 Air Carrier Safety Inspector
March 1, 1984 to February 28, 1987 Check Pilot I
EXPERIENCE: 4 YEARS OF EXPERIENCE IN PLANNING, March 1, 1987 to November 27, 1994 Check Pilot II
ORGANIZING, DIRECTING, COORDINATING, November 28, 1994 to date Chief Aviation Safety
AND SUPERVISING THE ENFORCEMENT OF AIR Regulation Officer[9]
SAFETY LAWS, RULES, AND REGULATIONS
PERTAINING TO LICENSING, RATING AND These positions, spanning more than 13 years, in four of the five sections of the Aviation Safety Division of
CHECKING OF ALL AIRMEN AND MECHANICS the ATO definitely met the minimum supervisory experience required of respondent for the position.
AND THE REGULATION OF THE ACTIVITIES OF
FLYING SCHOOLS. In Rapisora vs. Civil Service Commission,[10] this Court held that the rule that appointees must possess the
prescribed mandatory requirements cannot be so strictly interpreted as to curtail an agencys discretionary
LICENSE REQUIRED: AIRLINE TRANSPORT power to appoint, as long as the appointee possesses other qualifications required by law. The appellate court
RATING / FLIGHT OPERATIONS OFFICER / was therefore correct in setting aside the assailed CSC resolutions and considering the respondents total work
AIRCRAFT MAINTENANCE ENGINEER (A&P) experience as sufficient to meet the supervisory standards under the second clause, thereby finding respondent
LICENSE / FLIGHT ENGINEER LICENSE qualified for appointment to the contested position.

TRAINING: IN-SERVICE TRAINING IN MANAGEMENT; Second, respondents promotional appointment was issued in accordance with petitioners selection process.
SPECIALIZED COURSE IN AIRCRAFT Respondent passed the rigid screening of the ATO Personnel Selection/Promotion Board as well as the oral
MAINTENANCE / AIR CARRIER OPERATIONS/ and written examinations of the DOTC Selection Board.
FLIGHT DISPATCHING/ AIRCRAFT ACCIDENT
INVESTIGATION/ EQUIPMENT QUALIFICATION DOTC Assistant Secretary Panfilo V. Villaruel, Jr. noted that:
COURSE / FLIGHT TRAINING (LOCAL &
ABROAD) 1. Capt. dela Cruz has been with the Air Transportation Office for more than 13 years
already and during such period, he faithfully and efficiently (served in) four of the five
ELIGIBILITY: RELEVANT RA 1080 CAREER SERVICE PROF. sections of the Aviation Safety Division of which the position under consideration is
1ST GRADE the head, thereby gaining more varied experience and working knowledge of the most
RELEVANT ELIGIBILITY FOR SECOND LEVEL important and sensitive functions of the Division over other applicants;
POSITION[5]

As noted by the CSC-NCR,[6] the contested position required four years of work experience in managerial
position(s) per the Qualification Standards Manual prescribed by MC No. 46, s. 1993 and/or four years of
experience in planning, organizing, directing, coordinating and supervising the enforcement of air safety laws,
rules and regulations pertaining to licensing, rating and checking of all airmen and mechanics and regulation of
the activities of flying schools per the above-stated ATO-DOTC Qualification Standards.
Petitioners insistence that respondent failed to meet the four-year managerial and supervisory experience
requirement is misplaced. It is a well-settled rule in statutory construction that the use of the term and/or
means that the word and and the word or are to be used interchangeably.[7] The word or is a disjunctive
term signifying dissociation and independence of one thing from another.[8] Thus, the use of the disjunctive
term or in this controversy connotes that either the standard in the first clause or that in the second clause
may be applied in determining whether a prospective applicant for the position under question may qualify.
2. The recommendee always performs his assigned tasks promptly with dedication,
integrity, high sense of responsibility and professionalism which he had demonstrated
when he established and developed the Airport Crash Rescue Organization (ACRO)
procedure to various national airports of the country, and when he organized the Air
Transportation Office (ATO) Operations Center which is now on a 24-hour operation
and serving as the nerve center of this Office;
3. He is a dedicated public servant and is always willing to respond to call of duty even
beyond office hours like when he is flying the ATOs aircraft for navigation aide check
during holidays and weekends, aside from conducting checkride to airmen prior to
issuance of the pilot license;
 4. Capt. dela Cruz is an outstanding team worker as well as a leader and promotes
enthusiasm among co-workers. He handles all areas of job with minimal supervision
and accomplishes objectives efficiently. He accepts stress situations and performs
extremely well.[11]
Because of respondents excellent credentials, DOTC Assistant Secretary for Administrative and Legal Affairs
Wilfredo M. Trinidad, chair of the Personnel Selection Board, strongly recommended his promotional
appointment to the contested position.
Third, respondents multifarious experiences and trainings[12] in air transportation were taken into account
when he was chosen for the subject position. Respondent not only showed a continuing interest to improve
his expertise in the field of air transportation, he also acquired an Airline Transport Pilots License in
1998.[13] As a privileged holder of such license, respondent exercised administrative supervision and control
over pilots, cabin and crew members to ensure compliance with air safety laws, rules and regulations.
In addition, respondents dedication to the service was demonstrated by his conceptualization and
establishment of the Airport Crash Rescue Organization (ACRO) procedure in various national airports in the
country to ensure the security of both airport personnel and passengers. Respondent also organized the Air
Transportation Office Operations Center which now provides air service assistance on a 24-hour basis.
Because of respondents commendable performance, he was designated Chief of the Air Transportation
Office Operations Center in 1993 per Office Order No. 178-93,[14] in addition to his duties as Check Pilot II.
He was also designated Acting Chief, Aviation Safety Division, of the ATO per Office Order No. 211-93.[15]
In Teologo vs. Civil Service Commission,[16] the Supreme Court ruled:
Promotions in the Civil Service should always be made on the basis of qualifications, including occupational
competence, moral character, devotion to duty, and, not least important, loyalty to the service. The last trait
should always be given appropriate weight, to reward the civil servant who has chosen to make his
employment in the Government a lifetime career in which he can expect advancement through the years for
work well done. Political patronage should not be necessary. His record alone should be sufficient assurance
that when a higher position becomes vacant, he shall be seriously considered for the promotion and, if
warranted, preferred to less devoted aspirants.
As stated by ATO Executive Director Manuel Gilo in his letter to CSC-NCR Director Nelson Acebedo, a
proven excellent performance of a person is better than just experience by occupying a position but lacks
dedication to duty, strong leadership and technical know-how.[17]
Regulation Office considering that he is fully qualified and evidently the choice of the appointing authority.
Between the Commission and the appointing authority, we sustain the latter.[21] 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, etc., may be valuable but so are such intangibles as
resourcefulness, team spirit, courtesy, initiative, loyalty, ambition, prospects for the future and best interest of
the service. 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.[22]
We, however, agree with petitioner that the reckoning point in determining the qualifications of an appointee
is the date of issuance of the appointment and not the date of its approval by the CSC or the date of
resolution of the protest against it. We need not rule on petitioners assertion that respondents subsequent
compliance with the experience standards during the pendency of the case should not be counted in his favor
since respondent was anyway qualified for the position at the time of his appointment.
But even assuming for the sake of argument that respondent failed to meet the experience requirement to
qualify for the contested position, we are still inclined to uphold the appellate courts approval of respondents
appointment. Petitioner itself has, on several occasions, allowed the appointment of personnel who were
initially lacking in experience but subsequently obtained the same.
In Civil Service Commission Resolution No. 97-0191 dated January 9, 1997, it ruled thus:
A careful evaluation of the qualifications of Josue reveals that he meets the education, training and eligibility
requirements of the position. Considering that Josue has already in his favor three (3) years and eight (8)
months experience as Senior Inspector up to the present, he has substantially satisfied the four (4) years
experience required for the appointment as Chief Inspector.
Following petitioners line of reasoning, respondent is deemed to have satisfactorily complied with the
experience requirement for the contested position when he was designated Chief of the ATO Operations
Center and Acting Chief of the ATO Aviation Safety Division. Having held said positions from 1993 to the
present, respondent may be considered to have acquired the necessary experience for the position.
WHEREFORE, the instant petition is hereby DENIED. The decision of the Court of Appeals setting aside
CSC Resolution No. 98-2970 and CSC Resolution No. 99-1451 is AFFIRMED. The appointment of
Saturnino de la Cruz as Chief Aviation Safety Regulation Officer is APPROVED.

It is elementary in the law of public officers that the power to appoint is in essence discretionary on the part
of the proper authority. In Salles vs. Francisco, et al.,[18]we had occasion to rule that, in the appointment or
promotion of employees, the appointing authority considers not only their civil service eligibilities but also
their performance, education, work experience, trainings and seminars attended, agency examinations and
seniority. 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 final choice of the appointing authority should be respected and
left undisturbed. Judges should not substitute their judgment for that of the appointing authority.

In the appointment of division chiefs, as in this case, the power to appoint rests on the head of the
department. Sufficient if not plenary discretion should be granted to those entrusted with the responsibility of
administering the offices concerned. They are in a position to determine who can best fulfill the functions of
the office vacated.[19] Not only is the appointing authority the officer primarily responsible for the
administration of the office, he is also in the best position to determine who among the prospective
appointees can efficiently discharge the functions of the position.[20]

Respondent was the uncontested choice of the appointing authority. Then DOTC Secretary Jesus B. Garcia
dismissed the protest against respondents appointment. ATO Executive Director Gilo also noted
respondents full compliance with the qualifications for the position. CSC-NCR Director Acebedo, who
previously recalled respondents appointment, later affirmed it after a re-evaluation of the case and declared
his previous ruling unofficial and inexistent.

Clearly then, there is no reason to disapprove the appointment of respondent as Chief of the Aviation Safety
 EN BANC
G.R. NO. 167472, January 31, 2007
CIVIL SERVICE COMMISSION, PETITIONER, VS. ENGR. ALI P. DARANGINA,
RESPONDENT.
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution is the instant Petition for Review on Certiorari under Rule 45 of the 1997 Rules of Civil
Procedure, as amended, seeking to reverse the Resolutions of the Court of Appeals dated October 7,
2004[1] and March 18, 2005[2] in CA-G.R. SP No. 71353.
The undisputed facts are:
Engr. Ali P. Darangina, respondent, was a development management officer V in the Office of Muslim
Affairs (OMA). On September 25, 2000, he was extended a temporary promotional appointment as director
III, Plans and Policy Services, in the same office. On October 11, 2000, the Civil Service Commission (CSC),
petitioner, approved this temporary appointment effective for one (1) year from the date of its issuance unless
sooner terminated.
On October 31, 2000, newly appointed OMA Executive Director Acmad Tomawis terminated the temporary
appointment of respondent on the ground that he is not a career executive service eligible. Tomawis then
appointed Alongan Sani as director III. But he is not also a career executive service eligible. Thus, the CSC
disapproved his appointment, stating that respondent could only be replaced by an eligible.
On appeal by respondent, the CSC issued Resolution No. 01-1543 dated September 18, 2001 sustaining the
termination of his temporary appointment but ordering the payment of his salaries from the time he was
appointed on September 25, 2000 until his separation on October 31, 2000.
Respondent filed a motion for reconsideration. On March 20, 2002, the CSC issued Resolution No. 02-439
granting the same with modification in the sense that respondent should be paid his backwages from the time
his employment was terminated on October 11, 2000 until September 24, 2001, the expiration of his one
year temporary appointment.
On April 3, 2002, respondent filed a motion for partial reconsideration, praying for his reinstatement as
director III and payment of backwages up to the time he shall be reinstated.
On June 5, 2002, the CSC issued Resolution No. 02-782 denying respondents motion for partial
reconsideration being a second motion for reconsideration which is prohibited.
Respondent then filed a petition for review with the Court of Appeals, docketed as CA-G.R. SP No.
71353. But in its Resolution of February 27, 2004, the petition was dismissed for his failure to implead the
OMA Executive Director and the incumbent of the disputed position.
Respondent filed a motion for reconsideration.
In a Resolution dated October 7, 2004, the Court of Appeals reconsidered its Decision of February 27, 2004,
thus:
ACCORDINGLY, our Decision of February 27, 2004 is RECONSIDERED and the assailed CSC resolutions
are hereby MODIFIED in that the petitioner is reinstated to his post to finish his 12-month term with
backwages from the date of his removal until reinstatement.
SO ORDERED.
The CSC filed a motion for reconsideration but it was denied by the Court of Appeals in a Resolution dated
March 28, 2005.
Section 27, Chapter 5, Subtitle A, Title I, Book V of the Administrative Code of 1987, as amended, classifying
the appointment status of public officers and employees in the career service, reads:
SEC. 27. Employment Status. Appointment in the career service shall be permanent or temporary.
(1) Permanent status. A permanent appointment shall be issued to a person who meets all the requirements for
the position to which he is being appointed, including appropriate eligibility prescribed, in accordance with the
provisions of law, rules and standards promulgated in pursuance thereof.
(2) Temporary appointment. 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.
It is clear that a permanent appointment can issue only to a person who possesses all the requirements for the
position to which he is being appointed, including the appropriate eligibility.[3] Differently stated, as a rule, no
person may be appointed to a public office unless he or she possesses the requisite qualifications. The
exception to the rule is where, in the absence of appropriate eligibles, he or she may be appointed to it merely
in a temporary capacity. Such a temporary appointment is not made for the benefit of the appointee. Rather,
an acting or temporary appointment seeks to prevent a hiatus in the discharge of official functions by
authorizing a person to discharge the same pending the selection of a permanent appointee.[4] In Cuadra v.
Cordova,[5] this Court defined a temporary appointment as one made in an acting capacity, the essence of
which lies in its temporary character and its terminability at pleasure by the appointing power. Thus, the
temporary appointee accepts the position with the condition that he shall surrender the office when called
upon to do so by the appointing authority. Under Section 27 (2), Chapter 5, Subtitle A, Title I, Book V of the
same Code, the term of a temporary appointment shall be 12 months, unless sooner terminated by the
appointing authority. Such pre-termination of a temporary appointment may be with or without cause as the
appointee serves merely at the pleasure of the appointing power.[6]
Under the Revised Qualifications Standards prescribed by the CSC, career executive service eligibility is a
necessary qualification for the position of director III in Plans and Policy Services, OMA. It is not disputed
that on September 25, 2000, when respondent was extended an appointment, he was not eligible to the
position, not being a holder of such eligibility. Hence, his appointment was properly designated as
temporary. Then on October 31, 2000, newly-appointed OMA Executive Director Tomawis recalled
respondents temporary appointment and replaced him by appointing Alongan Sani. It turned out, however,
that Sani is not likewise qualified for the post. A game of musical chairs then followed. Sani was subsequently
replaced by Tapa Umal, who in turn, was succeeded by Camad Edres, and later, was replaced by Ismael
Amod. All these appointees were also disqualified for lack of the required eligibility.
The Court of Appeals ruled that such replacements are not valid as the persons who replaced respondent are
not also eligible. Also, since he was replaced without just cause, he is entitled to serve the remaining term of
his 12-month term with salaries.
This Court has ruled that where a non-eligible holds a temporary appointment, his replacement by another
non-eligible is not prohibited.[7]
Moreover, in Achacoso[8] cited earlier, this Court held that when a temporary appointee is required to relinquish
his office, he is being separated precisely because his term has expired. Thus, reinstatement will not lie in
favor of respondent. Starkly put, with the expiration of his term upon his replacement, there is no
longer any remaining term to be served. Consequently, he can no longer be reinstated.
As to whether respondent is entitled to back salaries, it is not disputed that he was paid his salary during the
entire twelve-month period in spite of the fact that he served only from September 25, 2000 to October 31,
2000, or for only one month and six days. Clearly, he was overpaid.
WHEREFORE, this Court GRANTS the petition and REVERSES the assailed Resolutions of the Court
of Appeals. Considering that respondents employment was validly terminated on October 31, 2000, he is
ordered to refund the salaries he received from that date up to September 24, 2001.
 FIRST DIVISION
G.R. No. 123989, January 26, 1998
ATTY. DAVID B. CORPUZ, PETITIONER, VS. COURT OF APPEALS, AND MOVIE AND
TELEVISION REVIEW ANDCLASSIFICATION BOARD, RESPONDENTS.
DECISION
DAVIDE, JR., J.:
Petitioner Atty. David Corpuz (hereafter CORPUZ) asks us to set aside the 13 October 1995 decision of the
Court of Appeals in CA-G.R. SP-No. 37694[1]which reversed Resolution No. 93-5964 of the Civil Service
Commission (CSC),[2] the latter declaring that petitioners separation from the service as Attorney V in the
Movie Television Review Board (MTRCB) was not in order and directed that he be automatically restored to
his position.
The pleadings of the parties, the decision of the Court of Appeals and the Resolution of the CSC disclose the
following facts:
On 18 July 1986, CORPUZ was appointed as the MTRCBs legal Counsel -- Prosecutor and Investigation
Services (Supervising Legal Staff Officer).[3] The appointment was approved by Asst. Regional Director Benita
Santos of the CSC-National Capital Region. Subsequently, CORPUZ position was designated Attorney V
under the Salary Standardization Law.
As MTRCB Legal Counsel, CORPUZ duties included attendance in Board meetings pursuant to then
Chairman Moratos memorandum of 11 September 1987.[4]
Sometime in August 1991, the MTRCB passed MTRCB Resolution No. 8-1-91[5] entitled An Act To Declare
The Appointments Of The Administrative And Subordinate Employees Of This Board As Null And Void.
This undated resolution noted that the past and present Chairmen of the MTRCB had failed to submit for
approval the appointments of administrative and subordinate employees to the MTRCB before forwarding
them to the CSC, in violation of Section 5 of P.D. No. 876-A, and later, P.D. No. 1986.[6] It thus declared:
FOR ALL OF THE FOREGOING, this Board, in Session Assembled, hereby declare[s] that ALL the
appointments of the present administrative and subordinate employees of this Board suffers [sic] from
illegality and therefore [are] considered invalid and of no value and effect ab initio.
IT IS THEREFORE RESOLVED, AS IT IS HEREBY RESOLVED BY THIS BOARD, that the Chairman
recommend to this Board, the appointment of all or some of the present administrative and subordinate
employees of this Board, or new ones, at his initiative, discretion and preference, including the category of the
position for which the appointees [are] recommended, within a period of ONE MONTH from the approval
of this Resolution;
IT IS FURTHER RESOLVED, that in the interregnum, and in order not to disrupt the workings and
functions of this Board while this body is awaiting for [sic] the recommendation of the appointments of the
old and or new appointees, the present administrative and subordinate employees shall hold on [to] their
position[s] in an [sic] holdover capacity.
As certified by MTRCB Secretary Vicente G. Sales,[7] Resolution No. 8-1-91 was filed in his office on 1 August
1991, while Resolution No. 10-2-91, a mere reiteration of Resolution No. 8-1-91, was approved by the
MTRCB en banc on 9 October 1991. No copy of Resolution No. 10-2-91, however, was found in the records.
CORPUZ was unaware of the promulgation of Resolution No. 8-1-91 as he was then on leave. The
Resolution was likewise kept secret and it was only on 12 March 1993 that an announcement[8] of its contents
was posted by an Ad Hoc Committee on the MTRCB bulletin board. This announcement invited the
submission of any information concerning the appointments involved therein to the Committee. It appears,
however, that nothing was immediately done to implement Resolution No. 8-1-91.
On 14 July 1992, Henrietta S. Mendez was appointed MTRCB Chairman. Thereafter, new members of the
Board were likewise appointed with Mendez assuming office in August 1992.
At the MTRCB meeting of 19 January 1993, Mendez was informed about Resolution No. 8-1-91. An Ad Hoc
Committee composed of MTRCB members was then constituted to look into the appointments extended by
former Chairman Morato, as well as the qualifications of the appointees. The Committee then posted on the
MTRCB bulletin board the 12 March 1993 announcement mentioned above.
Thereafter, the Committee resolved to recommend to the MTRCB the approval of the appointments, except
that of CORPUZ and seven others.
In a Memorandum[9] dated 28 June 1993, Mendez informed CORPUZ that at the MTRCB regular meeting of
25 June 1993, his appointment was disapproved effective 30 June 1993. None of the parties attached to their
pleadings a copy of the MTRCB Resolution disapproving the appointment.
On 27 July 1993, CORPUZ and one Larry Rigor filed a complaint with the CSC requesting a formal
investigation and hearing. In her comment to the complaint, Mendez stated that she discovered that the
appointments extended by Morato were not submitted to the MTRCB for approval pursuant to Section 5(c)
of P.D. No. 1986; hence to cure the defect, she submitted the appointments to the MTRCB.
On 31 August 1993, the CSC promulgated Resolution No. 93-3509 granting the MTRCB authority to fill up
positions vacated in the agency due to appointments which were not submitted to the MTRCB for
approval.[10]
However, in Resolution No. 93-5964[11] dated 23 December 1993, the CSC ruled in favor of CORPUZ, as
follows:
It must be appreciated that the appointment of Atty. Corpuz was approved by the Commission because it was
signed by Mr. Manuel Morato, then Chairman of [the] MTRCB and the duly authorized signatory of MTRCB
appointments. All the appointments signed by Mr. Morato in his capacity as MTRCB Chairman are presumed
to have been made after complying with all the legal requirements including the Board approval, whether
express or implied.
The appointment of Atty. Corpuz, if defective, could have been the subject of a direct action for revocation or
recall which may be brought to the Commission within a reasonable period of time after its approval Since
no such action was filed with the Commission, we can safely state that Corpuz had already acquired security of
tenure in the said position. Hence, the Commission can not allow the current Boards disapproval of the said
appointment to produce any effect. Atty. Corpuz can no longer be separated from the service except for cause
and after observing the requirements of due process.
WHEREFORE, foregoing premises considered, the Commission hereby resolves to rule that the separation
of Mr. David Corpuz from the service is not in order. Accordingly, he is automatically restored to his position
of Atty. V with payment of back salaries.
The MTRCBs motion for reconsideration was denied by the CSC in Resolution No. 94-2551[12] dated 20 June
1994.
In the meantime, specifically on 22 August 1994, CORPUZ became a permanent employee of the
Ombudsman.[13]
The MTRCB filed with us a special civil action for certiorari which we referred to the Court of Appeals in
view of Republic Act No. 7902.[14] The Court of Appeals then docketed the case as CA-G.R. SP No. 37694.
In its decision, the Court of Appeals declared null and void Resolution No. 93-5964 of the CSC, ruling that
since the appointment of CORPUZ was not approved by the MTRCB, the appointment was invalid and he
could not invoke security of tenure. In support of its ruling, the Court of Appeals held:
Presidential Decree No. 1986, the law creating the Movie and Television Review and Classification Board,
specifically provides as follows:
Section 16. Organization Patterns; Personnel. -- The Board shall determine its organizational structure and
staffing pattern. It shall have the power to suspend or dismiss for cause any employee and/or approve or
disapprove the appointment, transfer or detail of employees. It shall appoint the Secretary of the Board who
shall be the official custodian of the records of the meetings of the Board and who shall perform such other
duties and functions as directed by the Board. (Underscoring supplied)
The record shows that the appointment of respondent Atty. David Corpuz was not approved by the Board, as
mandated by Presidential Decree No. 1986, Section 16.
The Supreme Court, in a similar case has reiterated the importance of complying with legal requirements for a
valid appointment. In Tomali vs. Civil Service Commission (238 SCRA 572), it held:
Compliance with the legal requirements for an appointment to a civil service position is essential in order to
make it fully effective (Favis vs. Rupisan, 17 SCRA 190, cited in Mitra vs. Subido, 21 SCRA 127). Without the
favorable certification or approval of the Commission, in cases when such an approval is required, no title to
the office can yet be deemed to be permanent; vested in favor of the appointee, and the appointment can still
be recalled or withdrawn by the appointing authority (Grospe vs. Secretary of Public Works and
Communication, 105 Phil. 129; Villanueva vs. Balallo, 9 SCRA 407; Suarez vs. Commission on Elections, 20
SCRA 797). Until an appointment has become a completed act, it would likewise be precipitate to invoke the
rule of security of tenure (See Aquino vs. Civil Service Commission, 208 SCRA 240; Mitra vs. Subido, 21
SCRA 797).
It appearing that respondent Atty. Corpuz appointment was not approved by the Board, the same cannot be
considered as [a] valid appointment. As such, he cannot invoke security of tenure, even if he has rendered
service for a number of years.
Neither would the silence or the failure of the Board to recall the private respondents appointment constitute
as a [sic] consent or confirmation. In the aforecited case, the Supreme Court restated the existing
jurisprudence on the matter, thus:
The tolerance, acquiescence or mistake of the proper officials, resulting in the non-observance of the
pertinent rules on the matter does not render the legal requirement, on the necessity of the approval of the
Commissioner on Civil Service of appointments, ineffective and unenforceable. The employee, whose
appointment was not approved, may only be considered as a de facto officer. (Tomali vs. Civil Service
Commission, supra citing Favis vs. Rupisan, 17 SCRA 190, 191)
Thus, We find merit in petitioners contention that respondent Atty. David Corpuz did not acquire a vested
right nor does he presently enjoy a [sic] security of tenure to the subject position in the MTRCB for failure to
comply with the legal requirements needed for a valid appointment. Hence, he cannot be reinstated. Not
being a permanent employee of the Movie and Television Review and Classification Board, the tenure of
respondent Atty. Corpuz ceased when he was not properly appointed under present law.
His motion for reconsideration having been denied in the Resolution[15] of 13 February 1996, CORPUZ filed
the instant petition under Rule 45 of the Rules of Court and asked us to reverse the challenged decision of the
Court of Appeals on the sole ground that:
THE COURT OF APPEALS ERRED IN RULING THAT THE APPOINTMENT OF PETITIONER
ATTY. DAVID B. CORPUZ DID NOT HAVE THE APPROVAL OF THE MTRCB BOARD WHICH
IF NOT CORRECTED, IS TANTAMOUNT TO A VIOLATION OF HIS CONSTITUTIONAL
RIGHTS TO SECURITY OF TENURE.
In his Memorandum, however, CORPUZ explicitly declared that he is no longer seeking reinstatement with
respondent MTRCB but for the continuity of his government service from the time he was illegally dismissed
on 30 June 1993 up to the time he was permanently employed with the Office of the Ombudsman on 22
August 1994 plus back salaries and other benefits due him if not for the illegal dismissal.[16]
Pursuant to Section 2 of P.D. No. 1986, the MTRCB is composed of a Chairman, a Vice-Chairman and thirty
(30) members, all appointed by the President of the Philippines. Section 5 thereof enumerates the following
functions, powers and duties of the Chairman as the Chief Executive Officer of the MTRCB, to wit:
(a) Execute, implement and enforce the decisions, orders, awards, rules
and regulations issued by the BOARD;
(b) Direct and supervise the operations and the internal affairs of the
BOARD;
(c) Establish the internal organization and administrative procedures of
the BOARD, and recommend to the BOARD the appointment of the
necessary administrative and subordinate personnel; and
(d) Exercise such other powers and functions and perform such duties as
are not specifically lodged in the BOARD.
On the other hand, Section 16 thereof, quoted in the challenged decision of the Court of Appeals, vests upon
the Board itself the power to, inter alia, approve or disapprove the appointments of its personnel.
It is thus clear that there are two stages in the process of appointing MTRCB personnel, other than its
Secretary, namely: (a) recommendation by the Chairman which is accomplished by the signing of the
appointment paper, which is among his powers under Section 5(d) above; and (b) approval or disapproval by
the MTRCB of the appointment. As to the Secretary, it is the MTRCB itself that is empowered to appoint said
official pursuant to Section 16.
It is long settled in the law of public offices and officers that where the power of appointment is absolute, and
the appointee has been determined upon, no further consent or approval is necessary, and the formal evidence
of the appointment, the commission, may issue at once. Where, however, the assent or confirmation of some
other officer or body is required, the commission can issue or the appointment may be complete only when
such assent or confirmation is obtained. In either case, the appointment becomes complete when the last act
required of the appointing power is performed.[17] Until the process is completed, the appointee can claim no
vested right in the office nor invoke security of tenure. Hence, in the case of CORPUZ, since the last act
required for the completion of his appointment, viz., approval by the MTRCB itself, was not obtained, as a
matter of fact, the MTRCB ultimately disapproved it, his appointment ceased to have effect, if at all, and his
services were properly terminated. This Court so declared in Favis v. Rupisan[18] where the appointment
involved was not approved by the Civil Service Commission pursuant to Section 16(h) of R.A. No. 2260 and
Section 2(a) of Rule VI of the Civil Service Rules implementing said law; Taboy v. Court of Appeals[19] and
Provincial Board of Cebu v. Presiding Judge of Cebu Court of First Instance [20] where the appointments of subject
employees were disapproved by the Provincial Boards pursuant to the powers granted them; in Carillo v. Court
of Appeals[21] where the required consent of the municipal council in the appointment of the chief of police was
not obtained; and in Tomali v. Civil Service Commission,[22] which the Court of Appeals relied upon, where
the required submission to and approval by the Civil Service Commission were not made as required by
Section 9(h) of P.D. No. 807 and Section 11, Rule V of the Omnibus Rules Implementing Book V of
Executive Order No. 292, otherwise known as the Administrative Code of 1987. In the latter, this Court held
that compliance with the legal requirements for an appointment to a civil service position is essential to make
it fully effective. That the employee involved had, in fact, assumed office and performed the functions and
duties thereof is of no moment, for it matters not that the appointee had served for several years. Those years
of service cannot substitute for the want of consent of another body required by law to complete the
appointment. The tolerance, acquiescence or mistake of the proper officials resulting in non-observance of the
requirements of law or rules to complete the appointment does not render the requirements ineffective and
unenforceable.[23]
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 for the reason that he assumed office under color of a
known appointment which is void by reason of some defect or irregularity in its exercise.[24] Undeniably, under
the facts here, CORPUZ was such a de facto officer.
WHEREFORE, the instant petition is DENIED and the assailed decision of 13 October 1995 of the Court
of Appeals in CA-G.R. SP-No.37694 is AFFIRMED.
 EN BANC
G.R. No. 96298, May 14, 1991
RENATO M. LAPINID, PETITIONER, VS. CIVIL SERVICE COMMISSION PHILIPPINE
PORTS AUTHORITY AND JUANITO JUNSAY, RESPONDENTS.
DECISION
CRUZ, J.:
The issue raised in this case has been categorically resolved in a long line of cases that should have since
guided the policies and actions of the respondent Civil Service Commission. Disregard of our consistent
ruling on this matter has needlessly imposed on the valuable time of the Court and indeed borders on
disrespect for the highest tribunal. We state at the outset that this conduct can no longer be countenanced.
Petitioner Renato M. Lapinid was appointed by the Philippine Ports Authority to the position of Terminal
Supervisor at the Manila International Container Terminal on October 1, 1988. This appointment was
protested on December 15, 1988, by private respondent Juanito Junsay, who reiterated his earlier
representations with the Appeals Board of the PPA on May 9, 1988, for a review of the decision of the
Placement Committee dated May 3, 1988. He contended that he should be designated terminal supervisor, or
to any other comparable position, in view of his preferential right thereto. On June 26, 1989, complaining
that the PPA had not acted on his protest, Junsay went to the Civil Service Commission and challenged
Lapinid's appointment on the same grounds he had earlier raised before the PPA. In a resolution dated
February 14, 1990, the Commission disposed as follows:
After a careful review of the records of the case, the Commission finds the appeal meritorious. In the
comparative evaluation sheets, the parties were evaluated according to the following criteria,
namely: eligibility; education; work experience; productivity/performance/attendance; integrity;
initiative/leadership; and physical characteristics/personality traits. The results of the evaluation are as
follows:
JUNSAY, Juanito - 79.5
VILLEGAS, Benjamin - 79
LAPINID, Renato - 75
DULFO, Antonio - 78
MARIANO, Eleuterio - 79
FLORES, Nestor - 80
DE GUZMAN, Alfonso - 80
VER, Cesar - 80
It is thus obvious that Protestants Junsay (79.5) and Villegas (79) have an edge over that of protestees Lapinid
(75) and Dulfo (78).
Foregoing premises considered, it is directed that Appellants Juanito Junsay and Benjamin Villegas be
appointed as Terminal Supervisor (SG 18) vice protestees Renato Lapinid and Antonio Dulfo respectively
who may be considered for appointment to any position commensurate and suitable to their qualifications,
and that the Commission be notified within ten (10) days of the implementation hereof.
SO ORDERED.
Upon learning of the said resolution, Lapinid, who claimed he had not been informed of the appeal and had
not been heard thereon, filed a motion for reconsideration on March 19, 1990. This was denied on May 25,
1990. The Philippine Ports Authority also filed its own motion for reconsideration on June 19, 1990, which
was denied on August 17, 1990. A second motion for reconsideration filed on September 14, 1990, based on
the re-appreciation of Lapinid's rating from 75% to 84%, was also denied on October 19, 1990.
When the petitioner came to this Court on December 13, 1990, we resolved to require Comments from the
respondents and in the meantime issued a temporary restraining order. The Solicitor General took a stand
against the Civil Service Commission, which, at his suggestion, was allowed to file its own Comment. The
petitioner filed a Reply. The private respondent's Comment was dispensed with when it was not filed within
the prescribed period.
We see no reason to deviate from our consistent ruling on the issue before us.
In Luego v. Civil Service Commission,[1] this Court declared:
The issue is starkly simple: Is the Civil Service Commission authorized to disapprove a permanent
appointment on the ground that another person is better qualified than the appointee and, on the basis of this
finding, order his replacement by the latter?
... ... ...
Appointment is an essentially discretionary power and must be performed by the officer in which it is vested
according to his best lights, the only condition being that the appointee should possess the qualifications
required by law. If he does, then the appointment cannot be faulted on the ground that there are others better
qualified who should have been preferred. This is a political question involving considerations of wisdom
which only the appointing authority can decide.
... ... ...
Significantly, the Commission on Civil Service acknowledged that both the petitioner and the private
respondent were qualified for the position in controversy. That recognition alone rendered it functus officio in
the case and prevented it from acting further thereon except to affirm the validity of the petitioner's
appointment. To be sure, it had no authority to revoke the said appointment simply because it believed that
the private respondent was better qualified for that would have constituted an encroachment on the discretion
vested solely in the city mayor.
The same ruling has been affirmed, in practically the same language as Luego, in Central Bank v. Civil Service
Commission, 171 SCRA 744; Santiago v. Civil Service Commission, 178 SCRA 733; Pintor v. Tan, G.R. No.
84022 and G.R. No. 85804, March 9, 1989, En Banc, Minute Resolution; Galura v. Civil Service Commission,
G.R. No. 85812, June 1, 1989, En Banc, Minute Resolution; Zulueta v. Mamangun, G.R. No. 85941, June 15,
1989, En Banc, Minute Resolution; Remigio v. Chairman, Civil Service Commission, G.R. No. 86324, July 6,
1989, En Banc, Minute Resolution; Aurora Macacua v. Civil Service Commission, G.R. No. 91520, July 31,
1990, En Banc, Minute Resolution; Abdulwahab A. Bayao v. Civil Service Commission, G.R. No. 92388,
September 11, 1990, En Banc, Minute Resolution; Orbos v. Civil Service Commission, G.R. No. 92561,
September 12, 1990; Alicia D. Tagaro v. The Hon. Civil Service Commission, et al., G.R. No. 90477,
September 13, 1990, En Banc; Minute Resolution; Elenito Lim v. Civil Service Commission, et al., G.R. No.
87145, October 11, 1990, En Banc, Minute Resolution; Teologo v. Civil Service Commission, G.R. No. 92103,
November 8, 1990; Simpao v. Civil Service Commission, G.R. No. 85976, November 15, 1990.
Only recently, in Gaspar v. Court of Appeals,[2] this Court said:
The only function of the Civil Service Commission in cases of this nature, according to Luego, is to review the
appointment in the light of the requirements of the Civil Service Law, and when it finds the appointee to be
qualified and all other legal requirements have been otherwise satisfied, it has no choice but to attest to the
appointment. Luego finally points out that the recognition by the Commission that both the appointee and the
protestant are qualified for the position in controversy renders it functus officio in the case and prevents it from
acting further thereon except to affirm the validity of the former's appointment; it has no authority to revoke
the appointment simply because it considers another employee to be better qualified for that would constitute
an encroachment on the discretion vested in the appointing authority.
... ... ...
The determination of who among 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, etc., may be
valuable but so are such intangibles as resourcefulness, team spirit, courtesy, initiative, loyalty, ambition,
prospects for the future, and best interests of the service. 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.
It is therefore incomprehensible to the Court why, despite these definitive pronouncements, the Civil Service
Commission has seen fit to ignore, if not defy, the clear mandate of the Court.

We declare once again, and let us hope for the last time, that the Civil Service Commission has no power of
appointment except over its own personnel. Neither does it have the authority to review the appointments
made by other offices except only to ascertain if the appointee possesses the required qualifications. The
determination of who among aspirants with the minimum statutory qualifications should be preferred belongs
to the appointing authority and not the Civil Service Commission. It cannot disallow an appointment because
it believes another person is better qualified and much less can it direct the appointment of its own choice.

Appointment is a highly discretionary act that even this Court cannot compel. While the act of appointment
may in proper cases be the subject of mandamus, the selection itself of the appointee - taking into account the
totality of his qualifications, including those abstract qualities that define his personality - is the prerogative of
the appointing authority. This is a matter addressed only to the discretion of the appointing authority. It is a
political question that the Civil Service Commission has no power to review under the Constitution and the
applicable laws.

Commenting on the limits of the powers of the public respondent, Luego declared:
It is understandable if one is likely to be misled by the language of Section 9(h) of Article V of the Civil
Service Decree because it says the Commission has the power to "approve" and "disapprove"
appointments. Thus, it is provided therein that the Commission shall have inter alia the power to:
"9(h) Approve all appointments, whether original or promotional, to positions in the civil service, except those presidential
appointees, members of the Armed Forces of the Philippines, police forces, firemen, and jailguards,
and disapprove those where the appointees do not possess of appropriate eligibility or required qualifications." (Emphasis
supplied)
However, a full reading of the provision, especially of the underscored parts, will make it clear that all the
Commission is actually allowed to do is check whether or not the appointee possesses the appropriate civil
service eligibility or the required qualifications. If he does, his appointment is approved; if not, it is
disapproved. No other criterion is permitted by law to be employed by the Commission when it acts on - or
as the Decree says, "approves" or "disapproves" - an appointment made by the proper authorities.

The Court believes it has stated the foregoing doctrine clearly enough, and often enough, for the Civil Service
Commission not to understand them. The bench does; the bar does; and we see no reason why the Civil
Service Commission does not. If it will not, then that is an entirely different matter and shall be treated
accordingly.
We note with stern disapproval that the Civil Service Commission has once again directed the appointment of
its own choice in the case at bar. We must therefore make the following injunctions which the Commission
must note well and follow strictly.

Whatever the reasons for its conduct, the Civil Service Commission is ORDERED to desist from disregarding
the doctrine announced in Luego v. Civil Service Commission and the subsequent decisions reiterating such
ruling. Up to this point, the Court has leniently regarded the attitude of the public respondent on this matter
as imputable to a lack of comprehension and not to intentional intransigence. But we are no longer disposed
to indulge that fiction. Henceforth, departure from the mandate of Luego by the Civil Service Commission
after the date of the promulgation of this decision shall be considered contempt of this Court and shall be
dealt with severely, in view especially of the status of the contemner.

While we appreciate the fact that the Commission is a constitutional body, we must stress, as a necessary
reminder, that every department and office in the Republic must know its place in the scheme of the
Constitution. The Civil Service Commission should recognize that its acts are subject to reversal by this
Court, which expects full compliance with its decisions even if the Commission may not agree with them.

The Commission on Civil Service has been duly warned. Henceforth, it disobeys at its peril.

WHEREFORE, the petition is GRANTED. The Resolutions of the respondent Civil Service Commission
dated February 14, 1990, May 25, 1990, August 17, 1990, and October 19, 1990, are REVERSED and SET
ASIDE. The temporary restraining order dated December 13, 1990, is made PERMANENT. No costs.
 THIRD DIVISION 1988, Par. 3;[7] (2) CSC MC NO. 10, s. 1986, Par. A, 1.2 and Par. B;[8] and (3) Civil Service Eligibility. These
grounds were not explained or discussed in the Resolution, the dispositive portion of which reads:
WHEREFORE, premises considered, this Board upholds the appointment of Ramon A. Anino as Resources
G.R. No. 129616, April 17, 2002
Management Division Manager of the Port Management Office of Iloilo.
On October 24, 1988, respondent was furnished a copy of PPA Special Order No. 479-88[9] (entitled
THE GENERAL MANAGER, PHILIPPINE PORTS AUTHORITY (PPA) AND RAMON Creation of the PPA Managers Pool), dated September 28, 1988, issued by the new PPA General Manager,
ANINO, PETITIONERS, VS. JULIETA MONSERATE, RESPONDENT. Mr. Rogelio A. Dayan. That Special Order excluded the name of respondent from the pool-list and placed
instead the name of petitioner as Manager II, Resource Management Division. In effect, the Special Order
DECISION implemented the August 11, 1988 Resolution of the PPA Appeals Board.

Aggrieved, respondent filed with the PPA General Manager an appeal/request for clarification dated
SANDOVAL-GUTIERREZ, J.: November 2, 1988.[10] She questioned her replacement under PPA Special Order No. 479-88, claiming that the
proceedings before the PPA Appeals Board were irregular because (1) she was not notified of the hearing
This petition for review on certiorari[1] seeks to set aside the Decision dated June 20, 1997 of the Court of before it; (2) she was not furnished a copy of the August 11, 1988 PPA Appeals Board Resolution or a copy
Appeals in CA-G.R. No. 39670,[2] declaring null and void the Resolution No. 952043 dated March 21, 1995 of the protest filed by petitioner Anino;[11](3) she was not informed of the reasons behind her replacement;
and Resolution No. 956640 dated October 24, 1995 of the Civil Service Commission (CSC), and ordering the and (4) their Port Manager (in Iloilo City), who was then an official member of the Board, was not included in
reinstatement of Julieta G. Monserate as Division Manager II of the Resources Management Division, Ports the said proceedings.
Management Office, Philippine Ports Authority (PPA), Iloilo City.
On November 8, 1988, pending resolution of her appeal/request for clarification, respondent received a copy
The facts are: of PPA Special Order No. 492-88[12] dated October 21, 1988, also issued by General Manager Dayan. This
PPA Order officially reassigned her to the position of Administrative Officer (SG-15) which was petitioner
Julieta Monserate, respondent, started her government service in 1977 as Bookkeeper II in the Port Anino's former position and was lower than her previous position as Finance Officer (SG 16) before she was
Management Office, PPA, Iloilo City. Barely a year later, she was promoted to the position of Cashier II and appointed as Division Manager.
then as Finance Officer (SG-16) in 1980.[3]
Apparently at a loss with the turn of events, coupled by the inaction of PPA General Manager Dayan on her
In the early part of 1988, when the PPA underwent a reorganization, respondent applied for the permanent earlier appeal/request for clarification, respondent filed on November 25, 1988 a precautionary
position of Manager II (SG-19) of the Resource Management Division, same office. The Comparative Data appeal[13] with the CSC. She manifested that as of said date (November 25), she has not yet been furnished a
Sheet[4] accomplished by the PPA Reorganization Task Force shows the ranking of the six (6) aspirants to the certified copy of the PPA Appeals Board Resolution.
said position, thus:
On January 2, 1989, respondent received a copy of her new appointment as Administrative Officer
COMPARATIVE DATA SHEET
dated October 1, 1988.[14] It was also during this time when she learned that PPA General Manager Dayan
had just issued petitioners appointment dated October 21, 1988 as Manager II in the Resource Management
OFFICE: PMO ILOILO Division effective February 1, 1988.
DIVISION: RES. MANAGEMENT DIVISION On January 16, 1989, respondent filed with the CSC an appeal formally protesting against petitioner Aninos
POSITION: DIVISION MANAGER appointment and at the same time questioning the propriety of the August 11, 1988 Resolution of the PPA
REQUIRED CS ELIG.: CS PROF / RA 1080 Appeals Board. This appeal remained pending with the CSC for more than six (6) years despite respondent's
requests for early resolution. In the meantime, she assumed the position of Administrative Officer.

CANDIDATES ELIGIBILITY xxx TOTAL Eventually, the CSC, in its Resolution No. 95-2043[15] dated March 21, 1995, dismissed respondents appeal,
thus:
It is well-established rule that an appointment, although approved by this Commission, does not become
1. MONSERATE, JULIETA CS Prof. xxx 79.5 final until the protest filed against it is decided by the agency or by the Commission. Although Monserate
2. ANINO, RAMON 1st grade xxx 70 had already assumed the position of RMD Manager II, the appointing authority may still withdraw the same if
3. TEODOSIO, APRIL PD 907 (CPA) xxx 67 a protest is seasonably filed. This is covered by Section 19, Rule VI of the Omnibus Rules implementing EO
292 x x x.
4. MORTOLA, DARIO CS Prof. xxx 67
5. ESPINOSA, AMALIK Bar xxx 63.5 Monserates claim that she is more qualified than Anino is not relevant to the issue before this
Commission. In cases of protest filed or appealed to the Commission, the main question to be resolved is
6. PERFECTO, BASCOS RA 1080 xxx 59.5
whether or not the appointee meets the qualification standard. x x x. The Commission will not disturb the
On February 1, 1988, Maximo Dumlao, Jr., then General Manager of the PPA, appointed[5] respondent to the choice of the appointing authority as long as the appointee meets the qualification prescribed for the position
position of Manager II (Resource Management Division). On even date, respondent assumed office and in question.
discharged the functions thereof. On July 8, 1988, the CSC, through Guillermo R. Silva (Assistant Director Respondent filed a motion for reconsideration but the same was denied by the CSC in its Resolution No. 95-
of the Civil Service Field Office-PPA) approved her appointment. 6640 dated October 24, 1995.
Meanwhile, on April 18, 1988, petitioner Ramon Anino, who ranked second to respondent per the In due time, respondent filed with the Court of Appeals a petition for review impleading as respondents the
Comparative Data Sheet earlier quoted, filed an appeal/petition with the PPA Appeals Board, protesting PPA General Manager and petitioner Anino.
against respondents appointment. The PPA Appeals Board, in a Resolution[6] dated August 11, 1988,
sustained the protest and rendered ineffective respondents appointment based on (1) CSC MC No. 5, s. On June 20, 1997, the Court of Appeals rendered a Decision[16] nullifying the twin Resolutions of the CSC. It
ruled that the August 11, 1988 Resolution of the PPA Appeals Board was not supported by evidence and that
the same was irregularly issued due to lack of proper notice to respondent with respect to the Boards
proceedings. It concluded that her reassignment from the position of Manager II, Resource Management
Division (SG-19), to the position of Administrative Officer (SG-15) was a demotion violative of her
constitutional right to security of tenure and due process. The dispositive portion of the Court of Appeals'
Decision reads:
THE FOREGOING CONSIDERED, judgment is hereby rendered declaring as null and void Resolution
Nos. 952043 and 95640 (should be 956640) dated March 21 and October 21, 1988 (should be October 24,
1995), of the Civil service Commission; and directing the reinstatement of the petitioner to the position of
Resource Management Division Manager II.
SO ORDERED.
Thereupon, Ramon Anino and the PPA General Manager filed on August 14, 1997 the present petition. On
November 30, 1997, petitioner Anino retired from the government service.[17]
Petitioners ascribe to the Court of Appeals the following errors:
I. THE COURT OF APPEALS SERIOUISLY ERRED IN FINDING THAT
RESPONDENT MONSERATE WAS DEMOTED FROM RESOURCES
MANAGEMENT DIVISION MANAGER TO ADMINISTRATIVE OFFICER,
THUS VIOLATING HER RIGHT TO SECURITY OF TENURE.
II. THE COURT OF APPEALS GRAVELY ERRED IN NOT ALIGNING ITSELF
WITH THE WELL-NIGH RULE THAT RESPONDENT MONSERATES
APPOINTMENT AS RESOURCE MANAGEMENT DIVISION MANAGER,
ALTHOUGH APPROVED BY CSC, DOES NOT BECOME FINAL UNTIL THE
PROTEST FILED AGAINST HER IS FAVORABLY DECIDED IN HER FAVOR
BY THE AGENCY OR THE CSC.
III. THE COURT OF APPEALS COMMITTED A SERIOUS ERROR OF
JUDGMENT IN IGNORING THAT IN CASES OF PROTEST FILED OR
APPEALED TO THE CSC, THE MAIN QUESTION TO BE RESOLVED IS
WHETHER OR NOT THE APPOINTEE MEETS THE QUALIFICATION
STANDARD.[18]
The pivotal issue in this case is whether or not there was due process when respondent was replaced by
petitioner Anino from her position as Manager II, Resource Management Division, and demoted as
Administrative Officer.
Petitioners vehemently aver that respondent was never demoted since demotion, being in the nature of
administrative penalty, presupposes a conviction in an administrative case. Here, respondent was not charged
of any administrative case. Rather, she was displaced from her position as an aftermath of the PPA
reorganization, authorized by law, the implementation of which having been carried out with utmost good
faith.
Furthermore, the said displacement was just the necessary effect of the August 11, 1988 Resolution of the
PPA Appeals Board which sustained petitioner Aninos timely protest against respondents appointment.
Petitioners theorize that the appointment of respondent as Resource Management Division Manager did not
become final until the protest filed against her was favorably decided in her favor by the CSC. In support of
this contention, they cited Section 19, Rule VI of the Omnibus Rules Implementing Book V of Executive
Order No. 292 (otherwise known as the Administrative Code of 1987), which provides inter alia:
SEC 19. An appointment, though contested, shall take effect immediately upon its issuance if the appointee
assumes the duties of the position and the appointee is entitled to receive the salary attached to the
position. However, the appointment, together with the decision of the department head, shall be submitted to
the Commission for appropriate action within 30 days from the date of its issuance, otherwise the
appointment becomes ineffective thereafter. Likewise, such appointment shall become ineffective in
case the protest is finally resolved against the protestee, in which case, he shall be reverted to his
former position.
Petitioners also contend that the head of an agency, being the appointing authority, is the one most
knowledgeable to decide who can best perform the functions of the office. The appointing authority has a
wide latitude of choice subject only to the condition that the appointee should possess the qualifications
required by law. Consequently, the CSC acted rightly when it did not interfere in the exercise of discretion
by the PPA appointing authority, there being no evidence of grave abuse of discretion thereof or violation of
the Civil Service Law and Rules.
The petition is unmeritorious.
In the first place, the PPA reorganization in 1988 has nothing to do with respondents demotion from the
contested position of Manager II, Resource Management Office (SG-19), to the lower position of
Administrative Officer (SG-15). Antithetically, it was precisely because of the said reorganization that
respondent applied to the higher position of Division Manager II. In fact, the Comparative Data Sheet
accomplished by the PPA Reorganization Task Force itself shows that respondent ranked No. 1, while
petitioner Anino ranked No. 2, from among the six (6) contenders to the said post. Respondent was
eventually issued a permanent appointment as such Division Manager on February 1, 1988 by then PPA
General Maximo Dumlao, Jr., during which time she actually assumed office and discharged its
functions. This appointment was later approved on July 8, 1988 by the CSC, through Assistant Director
Guillermo R. Silva of the Civil Service Field Office-PPA.
Clearly, it was only after the reorganization and upon the issuance of the August 11, 1988 Resolution of the
PPA Appeals Board when respondent was demoted to the lower position of Administrative Officer. This is
further shown by the following orders and appointments subsequently issued by then PPA General Manager
Rogelio Dayan:
1. PPA Special Order No. 479-88 dated September 28, 1988 which excluded respondent
Monserate from the PPA Managers pool-list;
2. Appointment of respondent, dated October 1, 1988, to the position of Administrative
Officer;
3. PPA Special Order No. 492-88 dated October 21, 1988 which officially reassigned
respondent to the position of Administrative Officer; and
4. Appointment of petitioner Anino, dated October 21, 1988, to the position of Manager
II, Resource Management Division, effective February 1, 1988.
Therefore, contrary to petitioners claim, respondent was demoted, not by reason of the PPA reorganization
in 1988, but due to the PPA Appeals Board Resolution dated August 11, 1988 sustaining petitioner Aninos
protest against respondents appointment.
Unfortunately for petitioners, this Court cannot accord validity to the August 11, 1988 Resolution of the PPA
Appeals Board which upholds the appointment of Ramon A. Anino as Resource Management
Division Manager. But how can it uphold his appointment when he was not yet appointed then? It bears
stressing that he was appointed on a much later date - October 21, 1988, or more than two (2) months
after August 11, 1998 when the PPA Appeals Board Resolution was issued. Stated differently, the PPA
Appeals Board could not uphold an appointment which was not yet existing.
Equally questionable are the grounds for respondents demotion stated in the August 11, 1998
Resolution: (1) CSC MC No. 5, s. 1988, Par. 3; (2) CSC MC NO. 10, s. 1986, Par. A, 1.2 and Par. B; and (3)
Civil Service Eligibility. These grounds are incomprehensible for lack of discussion or explanation by the
Board to enable respondent to know the reason for her demotion.
We uphold the Court of Appeals finding that the August 11, 1998 PPA Appeals Board Resolution was void
for lack of evidence and proper notice to respondent. As aptly held by the Appellate Court:
In the August 11, 1988 Resolution by the PPA Appeals Board (Ibid., p. 46) upholding the appointment of the
private respondent (Ramon Anino) as Division Manager, the grounds against petitioner's (Julieta Monserate)
appointment were: a) the CSC MC No. 5, s. 1988, Par 3; b) the CSC MC No. 10, 2. 1986, Par. A, 1.2 and Par.
B; and c) Civil service eligibility.
"x x x
To us, the August 11, 1988 Resolution by the PPA Appeals Board was not supported by evidence. Of the
CSC MC No. 5, the petitioner had no pending administrative or criminal case at the time of her appointment
as Manager. x x x.
With respect to the CSC MC No. 10, Par. A (1.2) and Par. B, the processing, review, evaluation and
recommendation of her appointment as Manager II, passed several committees created by the PPA. x x
x. Moreover, she had a 1.9 average performance rating compared to the private respondent who only got
2.03. x x x.
On eligibility, she has a Career Service Professional eligibility while the private respondent only has a First
Grade Civil Service Eligibility.
She added that she was not aware of any proceeding on her demotion as a Division Manager. As a matter of
fact, it was only upon her iniative sometime during the latter part of November, 1988 that she was able to
obtain a copy of the August 11, 1988 Resolution of the Appeals Board. The resolution sustained the private
respondents appointment as Division Manager even if on August 11, 1988, he was not yet extended any
appointment. As a matter of fact, he was appointed only on October 1, 1988 (should be October 21, 1988).
Furthermore, she said that the resolution of the PPA Appeals Board appears irregular, if not null and
void. She was never notified of any proceeding; she was not furnished either a copy of the resolution. What
she received instead was a Special Order dated September 29, 1988 already ordering her demotion. She was
not at all given the oppurtunity of defending herself before the Appeals Board.
x x x.
In the case now before us, the petitioner did not receive or was not given a copy of the August 11, 1988
Resolution of the Appeals Board. She did not even know that she was demoted until after she received a
copy of the of the Special Order No. 479-88.[19]
From all indications, it is indubitable that substantial and procedural irregularities attended respondents
demotion from the position of Manager II, Resource Management Division, to the lower position of
Administrative Officer. Indeed, her demotion, tantamount to a revocation of her appointment as Manager II,
is a patent violation of her constitutional rights to security of tenure and due process. In Aquino vs. Civil Service
Commission,[20] this Court emphasized 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.
The challenged Court of Appeals Decision ordered the reinstatement of respondent without awarding
backwages. This matter becomes controversial because respondent assumed the lower position of
Administrative Officer during the pendency of her protest against petitioner Aninos appointment to the
contested position. Also, petitioner Anino retired from the service on November 30, 1997.
In this respect, while petitioner Aninos appointment to the contested position is void, as earlier discussed, he
is nonetheless considered a de facto officer during the period of his incumbency.[24] A de facto officer is one who
is in possession of an office and who openly exercises its functions under color of an appointment or election,
even though such appointment or election may be irregular.[25] In Monroy vs. Court of Appeals,[26] this Court ruled
that a rightful incumbent of a public office may recover from a de facto officer the salary received by the latter
during the time of his wrongful tenure, even though he (the de facto officer) occupied the office in good faith
and under color of title. A de facto officer, not having a good title, takes the salaries at his risk and must,
therefore, account to the de jureofficer for whatever salary he received during the period of his wrongful
tenure. In the later case of Civil Liberties Union vs. Executive Secretary,[27] this Court allowed a de facto officer to
receive emoluments for actual services rendered but only when there is no de jure officer, thus:
x x x in cases where there is no de jure officer, a de facto officer who, in good faith, has had possession
of the office and has discharged the duties pertaining thereto, is legally entitled to the emoluments of the
office, and may in appropriate action recover the salary, fees and other compensations attached to the office.
In fine, the rule is that where there is a de jure officer, a de facto officer, during his wrongful incumbency, is not
entitled to the emoluments attached to the office, even if he occupied the office in good faith. This rule,
however, cannot be applied squarely on the present case in view of its peculiar circumstances. Respondent
had assumed under protest the position of Administrative Officer sometime in the latter part of 1988, which
position she currently holds. Since then, she has been receiving the emoluments, salary and other
compensation attached to such office. While her assumption to said lower position and her acceptance of the
corresponding emoluments cannot be considered as an abandonment of her claim to her rightful office
(Division Manager), she cannot recover full backwages for the period when she was unlawfully deprived
thereof. She is entitled only to backpay differentials for the period starting from her assumption as
Administrative Officer up to the time of her actual reinstatement to her rightful position as Division
Manager. Such backpay differentials pertain to the difference between the salary rates for the positions of
Manager II and Administrative Officer. The same must be paid by petitioner Anino corresponding from the
time he wrongfully assumed the contested position up to the time of his retirement on November 30, 1997.
WHEREFORE, the petition is DENIED. The challenged Decision of the Court of Appeals dated June 20,
1997 is AFFIRMED with MODIFICATION in the sense that petitioner Ramon A. Anino is ordered to pay
respondent Julieta Monserate backpay differentials pertaining to the period from the time he wrongfully
assumed the contested position of Manager II up to his retirement on November 30, 1997.

Concededly, the appointing authority has a wide latitude of discretion in the selection and appointment of
qualified persons to vacant positions in the civil service.[21] However, the moment the discretionary power of
appointment is exercised and the appointee assumed the duties and functions of the position, such
appointment cannot anymore be revoked by the appointing authority and appoint another in his stead, except
for cause. Here, no iota of evidence was ever established to justify the revocation of respondent's appointment
by demoting her. Respondents security of tenure guaranteed under the 1987 Constitution [Article IX-B,
Section 2, par. (3)] should not be placed at the mercy of abusive exercise of the appointing power.[22]

Parenthetically, when the Court of Appeals reinstated respondent to her legitimate post as Manager II in the
Resource Management Division, it merely restored her appointment to the said position to which her right to
security of tenure had already attached. To be sure, her position as Manager II never became vacant since
her demotion was void. In this jurisdiction, "an appointment to a non-vacant position in the civil service is
null and void ab initio."[23]

We now delve on the backwages in favor of respondent.