Gloria v Gloria v. De Guzman, Jr. GR No. 116183, 6 October 1995 position even if the position existed.
position even if the position existed. At any rate, a mere "designation" does not confer upon the
Facts: Private respondents were employees of the Philippine Air Force College of Aeronautics
(PAFCA). Under the PD creating it, the Board of Trustees (BOT) is w/ authority to appoint
officials & employees of the college, except the members of the BOT themselves & the
President of the College. In line w/ this, the BOT issued a resolution in 1991 w/c declared that
all faculty/administrative employees are also subject to the required civil service eligibilities.
Thus, private respondents were issued only temporary appointments because at the time of their
appointments, they lacked appropriate civil service eligibilities or otherwise failed to meet the
necessary qualification standards for their respective positions. The temporary appointments
were good & renewable only up to 1992. Private respondent Cerillo was issue a 1-year
temporary appointment to the position of Board Secretary II which is until December 31, 1992.
However, on March 24, 1992, she was relieved as Board Secretary by reason of loss of
confidence & designated as Coordinatior for extension Services. Subsequently, when the
PAFCA was converted into a state college, the OIC of the BOT informed private respondents
that they shall be deemed separated from the service upon the expiration of their temporary
appointments. After the lapse of their temporary appointments, private respondents filed a
petition for mandamus & reinstatement praying that the DECS Secretary complete the filling
up positions for BOT & order said board to reinstate the respondents in the case at bench to
their respective positions.
Issue: Whether a mandamus will lie to compel reinstatement of private respondents to their
positions
Held: No. The judgment of respondent Judge which orders the reinstatement of 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 of the position cannot be the subject of a case
for reinstatement. Furthermore, even granting that 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
designee security of tenure in the position or office which he occupies in an acting capacity
only. The fact that 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."
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. 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. 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.
Pamantasan ng Lungsod ng Maynila vs Intermediate Appellate Court (140 SCRA 22 –
Law on Public Officers – Ad Interim Appointment)
Facts: In 1973, Dr. Hernani Esteban was appointed by Dr. Consuelo Blanco as the Vice-
President for Administration in the Pamantasan ng Lungsod ng Maynila (PLM). Esteban’s
appointment was ad interim in nature (because at that time the PLM Board of Regents was not
in session). His appointment was extended in 1975. However, he later discovered that his name
was not included among those recommended for permanent appointment. He then requested
Blanco to make him a permanent appointee. Blanco, however, appointed Esteban as Professor
III instead and his appointment as VP for Admin was terminated. Esteban brought the case
before the Civil Service Commission where he got a favorable judgment. The trial court
reversed the CSC. The Intermediate Appellate Court reversed the trial court.
ISSUE: Whether or not Esteban is a permanent appointee.
HELD: Yes. Hence, he enjoys security of tenure. The Supreme Court explains that the term
“ad interim” as used in the Philippines does not literally translate to “temporary”. In this
jurisdiction an ad interim appointment is a permanent appointment. This was explained in the
landmark case of Summers vs Ozaeta:
…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. In other words,
if the Board of Regents is in session, the PLM President merely nominates while the Board
issues the appointment. But when the Board is not in session, the President is authorized to
issue ad interim appointments. Such appointments are permanent but their terms are only until
the Board disapproves them. If confirmed, the appointee’s term is converted into the regular
term inherent in the position. In the case at bar, apparently, Esteban was confirmed by the Board
of Regents in 1975. Blanco however did not relay this confirmation to Esteban. The latter was
made to believe (due to souring relationship with Blanco) that his appointment was extended
but only as an extension of temporary appointment.
Marohombsar v. Alonto February 25, 1991
 FACTS: •Mar. 22, 1988: Dr. Emily M. Marohombsar was designated as OIC
of the Office of the Vice-Chancellor for Academic Affairs (OVCAA) of
Mindanao State University (MSU) Marawi Campus in a concurrent capacity
with her position then as VP for External Studies.
 •Jan. 2, 1989: The Office of the Vice-President for External Studies was
merged with the OVCAA and, as such, the functions of the former were to be
exercised by the latter.
 •Dr. Marohombsar was appointed acting Vice-Chancellor for Academic
Affairs on the same day.
• May 16, 1989: The Board of Regents of the MSU thru Resolution
No. 59, s. 1989, approved her appointment as acting Vice-
Chancellor for Academic Affairs.
 "RESOLVED, that upon recommendation of the President of the University of
the Executive Committee of the Board of Regents the following Special
Orders as amended/corrected are hereby confirmed:
 A. DESIGNATIONS
 A1. Major designations xxx
 9) Special Order No. 10-P, S. 1989, designating Prof. Emily M.
Marohombsar as Acting Vice Chancellor for Academic Affairs, MSU Marawi
Campus, with an honorarium in accordance with the approved policies of the
University, subject to accounting and auditing rules and regulations, effective
January 2, 1989 and shall remain in force until revoked or amended by
competent authority.'"
• May 14, 1990: Ahmad E. Alonto, MSU President, wrote Dr.
Marohombsar informing her that he has decided to tap her talent
for the MSU system as Vice-President for Academic Affairs which
position is under his administrative staff.
• Same date: Dr. Marohombsar answered that she cannot accept
the position since she has already started several projects in the
OVCAA which she wants to see through.
• May 16, 1990: Pres. Alonto designated Professor Macacuna
Moslem as Vice-Chancellor for Academic Affairs but the latter did
not accept the designation.
• May 28, 1990: Pres. Alonto issued Special Order No. 158-P
designating Professor Corazon Batara as OIC of the OVCAA.
• Dr. Marohombsar now comes to SC assailing her removal as Vice-
Chancellor by President Alonto.
 ISSUE + RULING: Whether or not Dr. Emily M. Marohombsar, who was
appointed Acting Vice-Chancellor for Academic Affairs of the MSU Marawi
Campus by MSU President Ahmad Alonto, may be removed from office even
without cause?
 (NO)
 • Marohombsar: Her appointment being permanent, she can be
removed only after hearing and for cause.
• SC: Permanent Appointment. Her appointment as Acting Vice-
Chancellor for Academic Affairs was couched in temporary terms.
However, it should have been an ad interim appointment since
both the security of tenure of the occupant and the needs of the
new office called for the ad interim appointment when the Vice-
Presidency for External Studies was abolished and its functions
were merged with the Vice-Chancellorship for Academic Affairs.
Pres. Alonto cannot use the device of an ambiguous designation
to go around the security of tenure principle.
 ACTING APPOINTMENTS
• CAB: The special order confirmed by the Board of Regents
specifically designated Marohombsar as Acting Vice Chancellor
for Academic Affairs.
• A bona fide appointment in an acting capacity is essentially
temporary and revocable in character and the holder of such
appointment may be removed anytime even without hearing or
cause. (Austria v. Amante).
 A person who accepts an appointment in an acting capacity extended and
received without any protest or reservation and who acts thereunder for a
considerable time cannot later be heard to say that the appointment was, in
reality, permanent and therefore there can be no removal except for cause.
(Cabiling v. Pabualan)
• RATIO FOR ACTING APPOINTMENTS: The essence of an acting
appointment is its temporary nature. It is a stop gap measure
intended to fill an office for a limited time until a permanent
appointment is extended or a new appointee is chosen. (Austria
v. Amante)
• EXTENT: The nature of an acting appointment limits not only the
claims of the appointee to a lengthy tenure but also defines the
authority of the appointing power.
• A public officer appointed in an acting capacity cannot claim that
the appointment shall in time ripen into a permanent one.
HOWEVER, neither can the appointing power use the principle of
temporary appointments to evade or avoid the security of tenure
principle in the Constitution and the Civil Service Law.
 This is similar to the rule that the head of an office cannot arbitrarily convert
permanent positions to primarily confidential items so that he can more
freely fire and hire or rehire subordinates at his personal discretion.
 o It is the nature of the functions attached to a position, not the
nomenclature or title given by the appointing authority which determines its
primarily confidential nature. (Piñero v. Hechanova) • For the same
reason, the Court may inquire into the true nature of an "acting" appointment
to determine whether or not it is used as a device to circumvent the security
of tenure principle.
• CAB: There was circumvention of the security of tenure principle.
The intent to make Marohombsar serve at the pleasure of the
MSU President is obvious.
 Marohombsar is a career official of MSU for over 27 years. She was VP for
External Studies since 1982. On Mar. 22, 1988, she was given an additional
assignment as OIC of the Office of the Vice-Chancellor for Academic Affairs
concurrently with the permanent position as VP for External Studies.
 About 9 mos. later, the Vice-Presidency for External Studies was "merged"
with the Vice-Chancellorship for Academic Affairs. At the same time,
Marohombsar was appointed acting Vice-Chancellor for Academic Affairs.
 The effect was to abolish Marohombsar's permanent office and give her a
temporary appointment in the supposedly new office which replaced or
absorbed the former office. Another result was the loss by Marohombsar of
her permanent status.
 AD-INTERIM APPOINTMENT
• There are reasons which indicate that maneuverings by the
President cannot be characterized as bona fide.
• The power to designate is vested in the MSU President pursuant
to Sec. 40.5 (par. 22) Art. 4 of the Code of Governance of the
MSU.
 Must be less than 1 year.
 Must be reported to the Board of Regents at the next regular meeting.
 After the meeting, another designation must be issued if no permanent
appointment was made.
 The earlier designation becomes void as the Board is expected to fill the item
permanently, not merely leaving it temporarily occupied.
• The power to appoint is vested in the Board of Regents (on the
recommendation of the President of the University) pursuant to
MSU Charter, RA 1387.
• If the President merely designates, the Board of Regents does not
confirm the designation. Since it is only for the information of the
Board, the President's action should be merely "noted."
• When the Board of Regents confirmed the appointment of
Marohombsar on May 16, 1989, it was acting on an ad interim
appointment effected by the President.
 If it was a mere designation, it needs no confirmation. The fact that
confirmation was needed shows that it is an ad interim one.
 AD INTERIM APPOINTMENT: one made during the time when the appointing
or confirming body is not in session and there is an existing clear and present
urgency caused by an impending obstruction or paralyzation of the functions
assigned to the office if no immediate appointment is made. (Rodriguez, Jr.
v. Quirino)
• CAB: When the Vice-Presidency for External Studies was
abolished and its functions were merged with the Vice-
Chancellorship for Academic Affairs, both the security of tenure
of the occupant and the needs of the new office called for the ad
interim appointment.
• Pres. Alonto cannot use the device of an ambiguous designation
to go around the security of tenure principle. Under the MSU
Code, a designation requires a fixed period of not less than one
year. The appointment given to Marohombsar was indefinite.
She would serve at the pleasure of the MSU President who is not
even the head of the institution because the head is the Board of
Regents.
• The intent to convert permanent items into temporary ones is
apparent. Practically, all top officers below the President were
converted into positions where the occupants serve at the
pleasure of the President and presumably, the Board of Regents.
 On whether the permanent item of Marohombsar is Professor VI
• Alonto: Marohombsar's designation as Acting VCAA cannot be
deemed a regular or permanent appointment because the
anomalous situation of one permanently appointed to 2 public
positions (Professor VI and VC) simultaneously would arise.
• SC: No merit. The fact that Professor Marohombsar has a
permanent appointment as Professor does not detract from the
permanent nature of her present appointment as Vice-
Chancellor, especially since the same was duly confirmed by the
MSU Board of Regents. The only difference is that her position as
Vice-Chancellor has a fixed term while that of Professor Tapales
was until he retired or resigned.
• Tapales v. President and BOR of UP: UP Deans and Directors
enjoy security of tenure and any attempt to remove them by
limiting their terms of office from permanent to a 5 year term is
unconstitutional.
 Deans and Directors are selected from faculty members. An appointment as
Professor is also needed for salary rating purposes but does not detract from
the permanent nature of the administrative position
 DISPOSITION: Petition GRANTED. Marohombsar shall remain as the lawful
occupant in a permanent capacity of the position of Vice-Chancellor for
Academic Affairs of MSU, Marawi until the end of her three-year term or her
tenure is otherwise lawfully terminated.
• The motion to cite Alonto for contempt is DENIED but Alonto is
admonished to faithfully heed court orders in the future.
Matibag v. Benipayo 380 SCRA 49 Ponente: Justice Carpio
Facts : The COMELEC En Banc appointed petitioner as the “Acting Director IV” of the
EID. Some time after, President Arroyo appointed, ad interim, the respondents herein
as Comelec Chairman and Comelec Commissioners. The Office of the President
submitted to the Commission on Appointments of the respondents for confirmation.
However, the commissions did not act on said appointments. Once more, President
Arroyo renewed the ad interim appointments for the respondents and made them
took their oaths for the second time. Again, the Office transmitted their appointments
to the Commission for confirmation. Congress adjourned before the Commission
could act on their appointments. Thus, the President renewed against the ad interim
appointments of the respondents to the same positions. The Office submitted their
appointments for confirmation to the Commission. They took their oaths of office
anew. In his capacity as Comelec Chairman, the respondent issued a memorandum
addressed to petitioner to be reassigned to the Law Department. The petitioner asked
for a reconsidered of her reassignment but was denied of it. Hence, the petition
herein questioning the validity of the appointment of the respondents.
Issue : (1) Whether or not the ad interim appointment to the Comelec is a temporary
appointment that is prohibited by Sec. 1 (2), Article IX-C of the Constitution (2)
Assuming the first ad interim appointment is valid, whether or not the renewal of the
ad interim appointments of the respondents is a violation of Section 1 (2), Article IX-
C of the Constitution
Held : (1) No. 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 uses the word “effective only until.”
Padilla v Civil Service Commission
Civil Service Commission v Dela Cruz
FACTS: Saturnino dela Cruz is an employee of DOTC, Air TransportationOffice, he was
a Check Pilot II. He was promoted to the position: Chief Aviation Safety Regulation
Officer of the Aviation Safety Division.His promotion was assailed by Calamba, saying
he did not meet the 4 yrmanagerial & supervisory qualification for the position.CSC-
NCR upheld the protest and recalled the approval of the appointment of Dela
Cruz.Upon appeal of the ATO Director Gilo, CSC reversed itself and approved
theappointment. (decision of the CSC kept changing)CA approved the appointment.
He has the required qualifications “planning,organizing, directing, coordinating and
supervising the enforcement of airsafety laws, rules and regulations pertaining to
licensing, rating and checkingof all airmen and mechanics and regulation of the
activities of flying schools.
HELD:The requirement is 4 yrs of work in managerial position AND/ORsupervisory
position.“or” – either the 1st clause or 2nd clause may be applied.Dela Cruz had
excellent credentials and a “proven excellent performance.”Every particular job
has:3.formal – age, number of academic units in a certain course, seminarsattended,
etc. and4.informal qualifications – resourcefulness, team spirit, courtesy,initiative,
loyalty, ambition, prospects for the future and best interestof the service.Even if the
law stated “&”,the Court held that he has “substantially complied”3 yrs & 8mos
CIVIL SERVICE COMMISSION V. ENGR. DARANGINA
FACTS:Engineer Darangina was a development management officer V in theOffice of
Muslim Affairs (OMA). He was extended a temporary promotionalappointment as
Director III, Plans and Policy Services. CSC approved thetemporary appointment.New
OMA Executive Director terminated the appointment, ground: Not CareerExecutive
Service Eligible.CSC diaprroved the appointment of the replacement who was also
noteligible, and granted that the Darangina should be paid backwages until
theexpiration of his 1 yr temporary appointment.CA reinstated Darangina.
ISSUE/S:Whether Darangina should be reinstated.
HELD:CA REVERSED. Petition GRANTED. No reinstatement & back wages,only salary
from appointment until termination. With the expiration of histerm upon his
replacement, trhere is no longer any remaining term to beserved.Administrative Code
of 1987Book VTitle ISubtitle AChapter 5Section 27. Employment Status. –
Appointment in the career service shall bepermanent or temporary.(1)Permanent
Status. A permanent appointment shall be issued to a personwho meets all the
requirements for the position to which he is beingappointed, including appropriate
eligibility prescribed, in accordance withthe provisions of law, rules and standards
promulgated in pursuancethereof.(2)Temporary Appointment. In the absence of
eligible persons and itbecomes necessary in the public interest to fill a vacancy, a
tempappointment shall be issued to a person who meets all the requirementsfor the
position to which he is being appointed except the appropriate civilservice eligibility:
Provided, that such temporary appointment shall notexceed 12 mos., but the
appointee may be replaced sooner if a qualifiedcivil service eligible becomes
available.
Corpuz v Court of Appeals
LAPINID V. CSC (1991)
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.
Facts: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.
After a careful review of the records of the case, the Commission finds the appeal
meritorious. 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.
Decision:
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 ServiceLaw, 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 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.
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.
THE GENERAL MANAGER, PHILIPPINE PORTS AUTHORITY (PPA) and RAMON ANINO,
petitioners, vs. JULIETA MONSERATE, respondent.
A. Appointment by the President
1987 Philippine Constitution- Article VII (Sec.16)
The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors, other
public ministers and consuls, or officers of the armed forces from the rank of colonel
or naval captain, and other officers whose appointments are vested in him in this
Constitution. He shall also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by law, vest the appointment of
other officers lower in rank in the President alone, in the courts, or in the heads of
departments, agencies, commissions, or boards.
The President shall have the power to make appointments during the recess
of the Congress, whether voluntary or compulsory, but such appointments shall be
effective only until disapproved by the Commission on Appointments or until the next
adjournment of the Congress.
SARMIENTO III VS MISON AND CARAGUE
156 SCRA 549 G.R. No. 79974 December 17 1987 [Appointing Power]
FACTS: Mison was appointed as the Commissioner of the Bureau of Customs and
Carague as the Secretary of the Department of Budget, without the confirmation of
the Commission on Appointments. Sarmiento assailed the appointments as
unconstitutional by reason of its not having been confirmed by CoA.
ISSUE:Whether or not the appointment is valid.
RULING:Yes. The President acted within her constitutional authority and power in
appointing Salvador Mison, without submitting his nomination to the CoA for
confirmation. He is thus entitled to exercise the full authority and functions of the
office and to receive all the salaries and emoluments pertaining thereto.
Under Sec 16 Art. VII of the 1987 Constitution, there are 4 groups of officers whom
the President shall appoint:
1st, appointment of executive departments and bureaus heads, ambassadors, other
public ministers, consuls, officers of the armed forces from the rank of colonel or
naval captain, and other officers with the consent and confirmation of the CoA.
2nd, all other Government officers whose appointments are not otherwise provided
by law;
3rd those whom the President may be authorized by the law to appoint;
4th, low-ranking officers whose appointments the Congress may by law vest in the
President alone.
First group of officers is clearly appointed with the consent of the Commission on
Appointments. Appointments of such officers are initiated by nomination and, if the
nomination is confirmed by the Commission on Appointments, the President
appoints.
2nd, 3rd and 4th group of officers are the present bone of contention. By following
the accepted rule in constitutional and statutory construction that an express
enumeration of subjects excludes others not enumerated, it would follow that only
those appointments to positions expressly stated in the first group require the
consent (confirmation) of the Commission on Appointments.
It is evident that the position of Commissioner of the Bureau of Customs (a bureau
head) is not one of those within the first group of appointments where the consent
of the Commission on Appointments is required. The 1987 Constitution deliberately
excluded the position of "heads of bureaus" from appointments that need the
consent (confirmation) of the Commission on Appointments.
CALDERON VS CARALE 208 SCRA 254
FACTS:In 1989, RA 6715 was passed. This law amended PD 442 or the Labor Code. RA
6715 provides that the Chairman, the Division Presiding Commissioners and other
Commissioners [of the NLRC] shall all be appointed by the President, subject to
confirmation by the CoA. Appointments to any vacancy shall come from the nominees
of the sector which nominated the predecessor. Pursuant to the law, Cory assigned
Carale et al as the Chairman and the Commissioners respectively of the NLRC, the
appointment was not submitted to the CoA for its confirmation. Calderon questioned
the appointment saying that w/o the confirmation by the CoA, such an appointment
is in violation of RA 6715. Calderon asserted that RA 6715 is not an encroachment on
the appointing power of the executive contained in Sec16, Art. 7, of the Constitution,
as Congress may, by law, require confirmation by the Commission on Appointments
of other officers appointed by the President additional to those mentioned in the first
sentence of Sec 16 of Article 7 of the Constitution.
ISSUE:Whether or not Congress may, by law, require confirmation by the CoA of
appointments extended by the President to government officers additional to those
expressly mentioned in the first sentence of Sec. 16, Art. 7 of the Constitution whose
appointments require confirmation by the CoA.
RULING:The SC agreed with the Sol-Gen, confirmation by the CoA is required
exclusively for the heads of executive departments, ambassadors, public ministers,
consuls, officers of the armed forces from the rank of colonel or naval captain, and
other officers whose appointments are vested in the President by the Constitution,
such as the members of the various Constitutional Commissions. With respect to the
other officers whose appointments are not otherwise provided for by the law and to
those whom the President may be authorized by law to appoint, no confirmation by
the Commission on Appointments is required.
Jurisprudence established the following in interpreting Sec 16, Art 7 of the
Constitution
1. Confirmation by the Commission on Appointments is required only for presidential
appointees mentioned in the first sentence of Section 16, Article VII, including, those
officers whose appointments are expressly vested by the Constitution itself in the
president (like sectoral representatives to Congress and members of the
constitutional commissions of Audit, Civil Service and Election).
2. Confirmation is not required when the President appoints other government
officers whose appointments are not otherwise provided for by law or those officers
whom he may be authorized by law to appoint (like the Chairman and Members of
the Commission on Human Rights).
ARTURO M. DE CASTRO vs. JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT
GLORIA MACAPAGAL – ARROYO
G.R. No. 191002, March 17, 2010
FACTS: The compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010
occurs just days after the coming presidential elections on May 10, 2010.
These cases trace their genesis to the controversy that has arisen from the
forthcoming compulsory retirement of Chief Justice Puno on May 17, 2010, or seven
days after the presidential election. Under Section 4(1), in relation to Section 9, Article
VIII, that “vacancy shall be filled within ninety days from the occurrence thereof” from
a “list of at least three nominees prepared by the Judicial and Bar Council for every
vacancy.” Also considering that Section 15, Article VII (Executive Department) of the
Constitution prohibits the President or Acting President from making appointments
within two months immediately before the next presidential elections and up to the
end of his term, except temporary appointments to executive positions when
continued vacancies therein will prejudice public service or endanger public safety.
The JBC, in its en banc meeting of January 18, 2010, unanimously agreed to start the
process of filling up the position of Chief Justice.
Conformably with its existing practice, the JBC “automatically considered” for the
position of Chief Justice the five most senior of the Associate Justices of the Court,
namely: Associate Justice Antonio T. Carpio; Associate Justice Renato C. Corona;
Associate Justice Conchita Carpio Morales; Associate Justice Presbitero J. Velasco, Jr.;
and Associate Justice Antonio Eduardo B. Nachura. However, the last two declined
their nomination through letters dated January 18, 2010 and January 25, 2010,
respectively.
The OSG contends that the incumbent President may appoint the next Chief Justice,
because the prohibition under Section 15, Article VII of the Constitution does not
apply to appointments in the Supreme Court. It argues that any vacancy in the
Supreme Court must be filled within 90 days from its occurrence, pursuant to Section
4(1), Article VIII of the Constitution; that had the framers intended the prohibition to
apply to Supreme Court appointments, they could have easily expressly stated so in
the Constitution, which explains why the prohibition found in Article VII (Executive
Department) was not written in Article VIII (Judicial Department); and that the
framers also incorporated in Article VIII ample restrictions or limitations on the
President’s power to appoint members of the Supreme Court to ensure its
independence from “political vicissitudes” and its “insulation from political
pressures,” such as stringent qualifications for the positions, the establishment of the
JBC, the specified period within which the President shall appoint a Supreme Court
Justice.
A part of the question to be reviewed by the Court is whether the JBC properly
initiated the process, there being an insistence from some of the oppositors-
intervenors that the JBC could only do so once the vacancy has occurred (that is, after
May 17, 2010). Another part is, of course, whether the JBC may resume its process
until the short list is prepared, in view of the provision of Section 4(1), Article VIII,
which unqualifiedly requires the President to appoint one from the short list to fill the
vacancy in the Supreme Court (be it the Chief Justice or an Associate Justice) within
90 days from the occurrence of the vacancy.
ISSUE: Whether the incumbent President can appoint the successor of Chief Justice
Puno upon his retirement.
HELD:Prohibition under Section 15, Article VII does not apply to appointments to fill
a vacancy in the Supreme Court or to other appointments to the Judiciary.
Two constitutional provisions are seemingly in conflict.
The first, Section 15, Article VII (Executive Department), provides: Section 15. Two
months immediately before the next presidential elections and up to the end of his
term, a President or Acting President shall not make appointments, except temporary
appointments to executive positions when continued vacancies therein will prejudice
public service or endanger public safety.
The other, Section 4 (1), Article VIII (Judicial Department), states: Section 4. (1). The
Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices.
It may sit en banc or in its discretion, in division of three, five, or seven Members. Any
vacancy shall be filled within ninety days from the occurrence thereof.
Had the framers intended to extend the prohibition contained in Section 15, Article
VII to the appointment of Members of the Supreme Court, they could have explicitly
done so. They could not have ignored the meticulous ordering of the provisions. They
would have easily and surely written the prohibition made explicit in Section 15,
Article VII as being equally applicable to the appointment of Members of the Supreme
Court in Article VIII itself, most likely in Section 4 (1), Article VIII. That such
specification was not done only reveals that the prohibition against the President or
Acting President making appointments within two months before the next
presidential elections and up to the end of the President’s or Acting President’s term
does not refer to the Members of the Supreme Court.
Had the framers intended to extend the prohibition contained in Section 15, Article
VII to the appointment of Members of the Supreme Court, they could have explicitly
done so. They could not have ignored the meticulous ordering of the provisions. They
would have easily and surely written the prohibition made explicit in Section 15,
Article VII as being equally applicable to the appointment of Members of the Supreme
Court in Article VIII itself, most likely in Section 4 (1), Article VIII. That such
specification was not done only reveals that the prohibition against the President or
Acting President making appointments within two months before the next
presidential elections and up to the end of the President’s or Acting President’s term
does not refer to the Members of the Supreme Court.
Section 14, Section 15, and Section 16 are obviously of the same character, in that
they affect the power of the President to appoint. The fact that Section 14 and Section
16 refer only to appointments within the Executive Department renders conclusive
that Section 15 also applies only to the Executive Department. This conclusion is
consistent with the rule that every part of the statute must be interpreted with
reference to the context, i.e. that every part must be considered together with the
other parts, and kept subservient to the general intent of the whole enactment. It is
absurd to assume that the framers deliberately situated Section 15 between Section
14 and Section 16, if they intended Section 15 to cover all kinds of presidential
appointments. If that was their intention in respect of appointments to the Judiciary,
the framers, if only to be clear, would have easily and surely inserted a similar
prohibition in Article VIII, most likely within Section 4 (1) thereof.
AYTONA VS CASTILLO
4 SCRA 1 G.R. No. L-19313 January 19 1962 [Midnight Appointment]
FACTS:On December 29, 1961, Outgoing President Carlos Garcia appointed petitioner
Dominador Aytona as ad interim Governor of the Central Bank. Aytona took the
corresponding oath. On the same day, at noon, President-elect Diosdado Macapagal
assumed office; and on the next day, he issued administrative order no. 2 recalling,
withdrawing, and cancelling all ad interim appointments made by former President
Garcia. There were all-in all, 350 midnight or last minute appointments made by the
former President Garcia. On January 1, President Macapagal appointed Andres
Castillo as ad interim Governor of the Central Bank. Aytona instituted a case (quo
warranto) against Castillo, contending that he was validly appointed, thus the
subsequent appointment to Castillo by the new President, should be considered void.
ISSUE:Whether or not the 350 midnight appointments of former President Garcia
were valid.
RULING: No. After the proclamation of the election of President Macapagal, previous
President Garcia administration was no more than a care-taker administration. He
was duty bound to prepare for the orderly transfer of authority the incoming
President, and he should not do acts which he ought to know, would embarrass or
obstruct the policies of his successor. It was not for him to use powers as incumbent
President to continue the political warfare that had ended or to avail himself of
presidential prerogatives to serve partisan purposes. The filling up vacancies in
important positions, if few, and so spaced to afford some assurance of deliberate
action and careful consideration of the need for the appointment and the appointee's
qualifications may undoubtedly be permitted. But the issuance of 350 appointments
in one night and planned induction of almost all of them a few hours before the
inauguration of the new President may, with some reason, be regarded by the latter
as an abuse Presidential prerogatives, the steps taken being apparently a mere
partisan effort to fill all vacant positions irrespective of fitness and other conditions,
and thereby deprive the new administration of an opportunity to make the
corresponding appointments.
B. Appointment under Civil Service Qualification Standard
1987 Philippine Constitution Article IX-B, Section 2 (2)
B. THE CIVIL SERVICE COMMISSION
Section 2.(2) Appointments in the civil service shall be made only according to
merit and fitness to be determined, as far as practicable, and, except to positions
which are policy-determining, primarily confidential, or highly technical, by
competitive examination.
[G.R. No. 98107. August 18, 1997]
BENJAMIN C. JUCO, petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION and
NATIONAL HOUSING CORPORATION, respondents.
[G.R. No. 129133. November 25, 1998]
ECONOMIC INTELLIGENCE AND INVESTIGATION BUREAU, petitioner, vs. HON.
COURT OF APPEALS and CIVIL SERVICE COMMISSION, respondents.
Chua vs. CSC and NIA [G.R. No. 88979. February 07, 1992]
FACTS:Republic Act No. 6683 provided benefits for early retirement and voluntary
separation from the government service as well as for involuntary separation due to
reorganization. Deemed qualified to avail of its benefits are those enumerated in Sec.
2 of the Act. Petitioner Lydia Chua believing that she is qualified to avail of the benefits
of the program, filed an application with respondent National Irrigation
Administration (NIA) which, however, denied the same; instead, she was offered
separation benefits equivalent to one half (1/2) month basic pay for every year of
service commencing from 1980, or almost fifteen (15) years in four (4) successive
governmental projects. A recourse by petitioner to the Civil Service Commission
yielded negative results, citing that her position is co-terminous with the NIA project
which is contractual in nature and thus excluded by the enumerations under Sec.3.1
of Joint DBM-CSC Circular Letter No. 89-1, i.e. casual, emergency, temporary or
regular employment. Petitioner appealed to the Supreme Court by way of a special
civil action for certiorari.
ISSUE:Whether or not the petitioner is entitled to the benefits granted under
Republic Act No. 6683.
HELD:YES. Petition was granted.
RATIO:Petitioner was established to be a co-terminous employee, a non-career civil
servant, like casual and emergency employees. The Supreme Court sees no solid
reason why the latter are extended benefits under the Early Retirement Law but the
former are not. It will be noted that Rep. Act No. 6683 expressly extends its benefits
for early retirement to regular, temporary, casual and emergency employees. But
specifically excluded from the benefits are uniformed personnel of the AFP including
those of the PC-INP. It can be argued that, expressio unius est exclusio alterius but
the applicable maxim in this case is the doctrine of necessary implication which holds
that “what is implied in a statute is as much a part thereof as that which is expressed”.
[T]he Court believes, and so holds, that the denial by the respondents NIA and CSC of
petitioner’s application for early retirement benefits under R.A. No. 6683 is
unreasonable, unjustified, and oppressive, as petitioner had filed an application for
voluntary retirement within a reasonable period and she is entitled to the benefits of
said law. In the interest of substantial justice, her application must be granted; after
all she served the government not only for two (2) years — the minimum requirement
under the law but for almost fifteen (15) years in four (4) successive governmental
projects.
Cuevas et al. v. Bacal, [G.R. No. 139382. December 6, 2000]
FACTS:This case involves the appointment and transfer of career executive service
officers (CESOs). More specifically, it concerns the “appointment” of respondent
Josefina G. Bacal, who holds the rank of CESO III, to the position of Chief Public
Attorney in the Public Attorney’s Office, which has a CES Rank Level I, and her
subsequent transfer, made without her consent, to the Office of the Regional Director
of the PAO because of the appointment of Atty. Carina Demaisip to the position of
Chief Public Defender (formerly Chief Public Attorney). Atty. Bacal filed a petition for
quo warranto ruled in her favor by the Court of Appeals. Hence this petition for review
on certiorari.
ISSUES: Whether:
(1) Bacal is entitled of security of tenure considering that she belongs to Career
Service;
(2) security of tenure in the Career Executive Service is acquired with respect to the
position or to the rank the officer is holding;
(3) CESOs may be shifted from one position to another without violating their security
of tenure;
(4) Bacal’s unconsented transfer from Acting Chief Public Attorney to Regional
Director constitutes a demotion;
RULING:(1) No. 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, only as an exception to the rule, may be appointed to it merely in an
acting capacity in the absence of appropriate eligibles. Here, Atty. Bacal has a rank of
CESO III “appointed” to a position of CESO I. The appointment extended to him cannot
be regarded as permanent even if it may be so designated.
(2) Security of tenure in the career executive service is acquired with respect to rank
and not to position.The guarantee of security of tenure to members of the CES does
not extend to the particular positions to which they may be appointed a concept
which is applicable only to first and second-level employees in the civil service but to
the rank to which they are appointed by the President. Here, respondent did not
acquire security of tenure by the mere fact that she was appointed to the higher
position of Chief Public Attorney since she was not subsequently appointed to the
rank of CESO I based on her performance in that position as required by the rules of
the CES Board.
(3) Yes. Members of the Career Executive Service may be reassigned or transferred
from one position to another and from one department, bureau or office to
another;provided that such reassignment or transfer is made in the interest of public
service and involves no reduction in rank or salary; provided, further, that no member
shall be reassigned or transferred oftener than every two years. If a CESO is assigned
to a CES position with a higher salary grade than that of his CES rank, he is allowed to
receive the salary of the CES position. Should he be assigned or made to occupy a CES
position with a lower salary grade, he shall continue to be paid the salary attached to
his CES rank. Here, there is a valid transfer of Atty. Bacal to the Regional Office as it
was made in the interest of public service and she is still compensated according to
her CES rank.
(4) No. Respondent’s appointment to the position of Chief Public Attorney was merely
temporary and that, consequently, her subsequent transfer to the position of
Regional Director of the same office, which corresponds to her CESO rank, cannot be
considered a demotion, much less a violation of the security of tenure guarantee of
the Constitution. The rule that outlaws unconsented transfers as anathema to
security of tenure applies only to an officer who is appointed – not merely assigned –
to a particular station. Such a rule does not proscribe a transfer carried out under a
specific statute that empowers the head of an agency to periodically reassign the
employees and officers in order to improve the service of the agency.
PAGCOR v Rilloraza; GR No. 141141; 25 Jun 2001; 359 SCRA 525
FACTS:On 05 Nov 1997, administrative charges for dishonesty, grave misconduct,
conduct prejudicial to the best interest of the service, and loss of confidence were
brought against Carlos Rilloraza, a casino operations manager of petitioner PAGCOR.
On 02 Dec 1997, the PAGCOR Board issued a resolution dismissing respondent.
ISSUE: Whether or not all PAGCOR employees are confidential employees.
HELD: NO. The classification of a particular position as primarily confidential, policy-
determining or highly technical amounts to no more than an executive or legislative
declaration that is not conclusive upon the courts, the true test being the nature of
the position. The exemption provided in the charter pertains to exemption from
competitive examination to determine merit and fitness to enter the civil service.
Such employees are still protected by the mantle of security of tenure.
Luego v. Civil Service Commission (G. R. No. L-69137)
FACTS: Petitioner was appointed Administrative Officer II, Office of the City Mayor,
Cebu City, by Mayor Florentino Solon on 18 February 1983. The appointment was
described as “permanent” but the Civil Service Commission approved it as
“temporary.” On 22 March 1984, the Civil Service Commission found the private
respondent better qualified than the petitioner for the contested position and
accordingly directed herein private respondent in place of petitioner’s position. The
private respondent was so appointed on 28 June 1984, by the new mayor; Mayor
Ronald Duterte. The petitioner is now invoking his earlier permanent appointment as
well as to question the Civil Service Commission’s order and the private respondent’s
title.
ISSUE: Whether or not the Civil Service Commission is 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?
HELD: The Supreme Court ruled in the negative. The Civil Service Commission is not
empowered to determine the kind or nature of the appointment extended by the
appointing officer, its authority being limited to approving or reviewing the
appointment in the light of the requirements of the Civil Service Law. When the
appointee is qualified and the other legal requirements are satisfied, the Commission
has no choice but to attest to the appointment in accordance with the Civil Service
Laws. Hence, the Civil Service Commission’s resolution is set aside.
Aquino vs Civil Service Commission; [208 SCRA 240; GR 92403, April 22, 1992]
(Public Officers, Appointments: Grounds for Protest, CSC)
Facts: Petitioner was designated as Officer-in-charge of the Division Supply Office by
the DECS Regional Director in view of the retirement of the Supply Officer I.
Two years thereafter, the Division Superintendent of City Schools issued a
promotional appointment to private respondent as Supply Officer I in the DECS
division. The Civil Service Regional Office IV approved her appointment as permanent.
Petitioner filed a protest with DECS Secretary questioning the qualification and
competence of private respondent for the position of Supply Officer I.
Finding the petitioner better qualified than the respondent, the DECS Secretary in a
decision sustained the protest and revoked the appointment of private respondent,
and petitioner was issued a permanent appointment as Supply Officer by the DECS
Regional Director. Said appointment was approved by the Civil Service Regional Office
IV.
In an appeal to the CSC, public respondent CSC found the appeal meritorious, thus
revoking the appointment of petitioner and restoring private respondent to her
position under her previously approved appointment.
In the case at bar, petitioner assailing the revocation of his appointment, invokes the
rulings in previous jurisprudence that the CSC has no authority to revoke an
appointment on the ground that another person is more qualified for a particular
position for that would have constituted an encroachment on the discretion vested
solely in the appointing authority.
Issue: Whether or not appointment of the respondent can be revoked.
Held: No. It is well settled that once an appointment is issued and the moment the
appointee assumes position, he acquires a legal, not merely equitable right, 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.
Said appointment cannot also be revoked on the ground that the protestant is more
qualified than the first appointee. The protest must be for a cause or predicated on
those grounds provided for under Sect 19 (6) of the Civil Service Law (PD 807), namely:
1) that the appointee is not qualified;
2) that the appointee is not the next in rank; and
3) in case of appointment transfer, reinstatement, or by original appointment, that
the protestant is not satisfied with the written special reasons or reason given by the
appointing authority.
Note: “for a cause” means “for reasons which the law and sound public policy
recognized as sufficient warrant for removal, that is, legal cause, and not merely
causes which the appointing power in the exercise of discretion may deem sufficient.
It is implied that officers may not be removed at the mere will of those vested with
the power of removal, or without any cause. Moreover, the cause must relate to and
affect the administration of office and must be restricted to something of a
substantial nature directly affecting the rights and interests of the public.”
G.R. No. L-3881 August 31, 1950
EDUARDO DE LOS SANTOS, petitioner, vs.GIL R. MALLARE, LUIS P. TORRES, in his
capacity as City Mayor, PANTALEON PIMENTEL, in his capacity as City Treasurer and
RAFAEL USON, in his capacity as City Auditor, respondents.Francisco S. Reyes for
petitioner.Office of the Solicitor General Felix Bautista Angelo and Solicitor Augusto
Luciano for respondents.Jose P. Laurel and Abelardo Subido as amici curiae.
Facts: Eduardo de los Santos, the petitioner, was appointed City Engineer of Baguio
on July 16, 1946, by the President, appointment which was confirmed by the
Commission on Appointments on August 6, and on the 23rd of that month, he
qualified for and began toexercise the duties and functions of the position. On June
1, 1950, Gil R. Mallare was extended an ad interim appointment by the President to
the same position, after which, on June 3, the Undersecretary of the Department of
Public Works and Communications directed Santos to report to the Bureau of Public
Works for another assignment. Santos refused to vacate the office, and when the City
Mayor and the other officials named as Mallare's co-defendants ignored him and paid
Mallare the salary corresponding to the position, he commenced these
proceedings.The petitioner rests his case on Article XII of the Constitution, section 4
of which reads: "No officer or employee in the Civil Service shall be removed or
suspended except for cause as provided by law."The respondent in its answer, relied
on the provisions of “Section 2545 of the Revised Administrative Code, which falls
under Chapter 61 entitled "City of Baguio," authorizes the Governor General (now the
President) to remove at pleasure any of the officers enumerated therein, one of
whom is the city engineer.”
Issue:whether or not the removal of the petitioner violates the Article XII Section 4 of
the Constitution?
Held:Particular provision of the Sec 2545 of the Revised Administrative Code, which
which gave the Chief Executive power to remove officers at pleasure has been
repealed by the Constitution and ceased to be operative from the time that
instrument went into effect. Unconstitutionally, as we understand it, denotes life and
vigor, and unconstitutional legislation presupposes posteriority in point of time to the
Constitution. It is a statute that "attempts to validate and legalize a course of conduct
the effect of which the Constitution specifically forbids (State ex-rel. Mack vs.
Guckenberger, 139 Ohio St., 273; 39 NE. [2d], 840.) A law that has been repealed is as
good as if it had never been enacted, and can not, in the nature of things, contravene
or pretend to contravene constitutional inhibition. So, unlike legislation that is passed
in defiance of the Constitution, assertive and menacing, the questioned part of
section2545 of the Revised Administrative Code does not need a positive declaration
of nullity by the court to put it out of the way. To all intents and purposes, it is non-
existent, outlawed and eliminated from the statute book by the Constitution itself by
express mandatebefore this petitioner was appointed.
G.R. No. 85670 July 31, 1991
ROGELIO A. TRIA petitioner, vs. CHAIRMAN PATRICIA A. STO. TOMAS, CIVIL SERVICE
COMMISSION, RET. BRIG. GEN. JOSE T. ALMONTE, RET. COL. ERNESTO P. RAVINA
and RET. GEN. MIGUEL M. VILLAMOR, respondents
Laurel vs. CSC, 203 SCRA 195
FACTS: Petitioner, the duly elected Governor of the Province of Batangas, appointed
his brother, Benjamin Laurel, as Senior Executive Assistant in the Office of the
Governor, a non-career service position which belongs to the personal and
confidential staff of an elective official. Upon the vacancy of the position of Provincial
Administrator of Batangas, petitioner designated his brother as Acting Provincial
Administrator. Then, he issued Benjamin Laurel a promotional appointment as Civil
Security Officer which is a position which the Civil Service Commission classifies as
"primarily confidential" pursuant to P.D. No. 868.
ISSUE: Does nepotism apply to designation?
RULING: Yes. The court ruled that petitioner could not legally and validly appoint his
brother Benjamin Laurel to said position because of the prohibition on nepotism
under Section 49 of P.D. No. 807. They are related within the third degree of
consanguinity and the case does not fall within any of the exemptions provided
therein. The exemption in the said section covering confidential positions cannot be
considered since the said position is not primarily confidential for it belongs to the
career service.
Petitioner’s contention that the designation of his brother is not covered by the
prohibition cannot be accepted for by legal contemplation, the prohibitive mantle on
nepotism would include designation, because what cannot be done directly cannot
be done indirectly. His specious and tenuous distinction between appointment and
designation is nothing more than either a ploy ingeniously conceived to circumvent
the rigid rule on nepotism or a last-ditch maneuver to cushion the impact of its
violation. Section 49 of P.D. No. 807 does not suggest that designation should be
differentiated from appointment. Reading the section with Section 25 of said decree,
career service positions may be filled up only by appointment, either permanent or
temporary; hence a designation of a person to fill it up because it is vacant, is
necessarily included in the term appointment, for it precisely accomplishes
the same purpose.