LAW on public officers.doc

8/9/2019 LAW on public officers.doc

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Define Appointment. Discuss its nature.

Held: An “appointment” to a public office is the unequivocal act of designating or selecting by

one having the authority therefor of an individual to discharge and perform the duties andfunctions of an office or trust. The appointment is deemed complete once the last act required of

the appointing authority has been complied with and its acceptance thereafter by the appointee inorder to render it effective. Appointment necessarily calls for an exercise of discretion on the

part of the appointing authority. In Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate Court, reiterated in Flores v. Drilon, this Court has held

“The power to appoint is! in essence! discretionary. The appointing power has the right of choice

which he may exercise freely according to his "udgment! deciding for himself who is bestqualified among those who have the necessary qualifications and eligibilities. It is a prerogative

of the appointing power x x x.”

Indeed! it may rightly be said that the right of choice is the heart of the power to appoint. In the

exercise of the power of appointment! discretion is an integral thereof. (Bermudez v. Torres, 311 SCRA 733, Aug. , 1!!!, 3rd Div. "#itug$%

&a' te Civi) Service Commission, or te Supreme Court, va)id)' nu))if' an appointment on

te ground tat some*od' e)se is *etter +ua)ified

Held: The head of an agency who is the appointing power is the one most #nowledgeable to

decide who can best perform the functions of the office. Appointment is an essentiallydiscretionary power and must be performed by the officer vested with such power 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. Indeed! this is a prerogative of theappointing authority which he alone can decide. The choice of an appointee from among those

who possess the required qualifications is a political and administrative decision calling forconsiderations of wisdom! convenience! utility and the interests of the service which can best be

made by the head of the office concerned! the person most familiar with the organi$ational

structure and environmental circumstances within which the appointee must function.

As long as the appointee is qualified the Civil %ervice Commission has no choice but to attest toand respect the appointment even if it be proved that there are others with superior credentials.

The law limits the Commission&s authority only to whether or not the appointees possess the

legal qualifications and the appropriate civil service eligibility! nothing else. If they do then the

appointments are approved because the Commission cannot exceed its power by substituting itswill for that of the appointing authority. 'either can we. (Rimonte v. CSC, - SCRA /0/,

&a' -!, 1!!, n Banc "Be))osi))o, 2.$%

Does te ne4t0in0ran56 ru)e import an' mandator' or peremptor' re+uirement tat te

person ne4t0in0ran5 must *e appointed to te vacanc'


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Held: The “next(in(ran# rule is not absolute) it only applies in cases of promotion! a process

which denotes a scalar ascent of an officer to another position higher either in ran# or salary.

And even in promotions! it can be disregarded for sound reasons made #nown to the next(in(ran#! as the concept does not import any mandatory or peremptory requirement that the person

next(in(ran# must be appointed to the vacancy. The appointing authority! under the Civil %ervice

*aw! is allowed to fill vacancies by promotion! transfer of present employees! reinstatement!reemployment! and appointment of outsiders who have appropriate civil service eligibility! not

necessarily in that order. There is no legal fiat that a vacancy must be filled only by promotion)

the appointing authority is given wide discretion to fill a vacancy from among the severalalternatives provided by law.

+hat the Civil %ervice *aw provides is that if a vacancy is filled by promotion! the person

holding the position next in ran# thereto “shall be considered for promotion.”

In Taduran v. Civil Service Commission! the Court construed that phrase to mean that the person

next(in(ran# “would be among the first to be considered for the vacancy! if qualified.” In

Santiago, Jr. v. Civil Service Commission! the Court elaborated the import of the rule in thefollowing manner

“,ne who is next(in(ran# is entitled to preferential consideration for promotion to the higher

vacancy but it does not necessarily follow that he and no one else can be appointed. The ruleneither grants a vested right to the holder nor imposes a ministerial duty on the appointing

authority to promote such person to the next higher position x x x” (A*i)a v. CSC, 1! SCRA

1/-, 2une 3, 1!!1, n Banc "8e)iciano$%

Can a person 9o )ac5s te necessar' +ua)ifications for a pu*)ic position *e appointed to it in

a permanent capacit' :))ustrative case.

Held: At the outset! it must be stressed that the position of -inistry *egal Counsel(

C%, I/ is embraced in the Career xecutive %ervice. 0 x x

In the case at bar! there is no question that private respondent does not have therequired C% eligibility. As admitted by private respondent in his Comment! he is “not a C%,

or a member of the Career xecutive %ervice.”

In the case of Acacoso v. Macaraig, et al., the Court held

It is settled that a permanent appointment can be issued only “to a person who meets all the

requirements for the position to which he s being appointed! including the appropriate eligibility prescribed.” Achacoso did not. At best! therefore! his appointment could be regarded only as

temporary. And being so! it could be withdrawn at will by the appointing authority and “at a

moment&s notice!” conformably to established "urisprudence.

The Court! having considered these submissions and the additional arguments of the parties in

the petitioner&s 1eply and of the %olicitor(2eneral&s 1e"oinder! must find for the respondents.


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The mere fact that a position belongs to the Career %ervice does not automatically confer

security of tenure in its occupant even if he does not possess the required qualifications. %uch

right will have to depend on the nature of his appointment! which in turn depends on hiseligibility or lac# 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. The appointmentextended to him cannot be regarded as permanent even if it may be so designated.

vidently! private respondent&s appointment did not attain permanency. 'ot having

ta#en the necessary Career xecutive %ervice examination to obtain the requisite eligibility! he

did not at the time of his appointment and up to the present! possess the needed eligibility for a position in the Career xecutive %ervice. Consequently! his appointment as -inistry *egal

Counsel(C%, I/34epartment *egal Counsel and3or 4irector III! was merely temporary. %uch

being the case! he could be transferred or reassigned without violating the constitutionallyguaranteed right to security of tenure.

5rivate respondent capitali$es on his lac# of C% eligibility by adamantly contendingthat the mobility and flexibility concepts in the assignment of personnels under the Career

xecutive %ervice do not apply to him because he s not a Career xecutive %ervice ,fficer.,bviously! the contention is without merit. As correctly pointed out by the %olicitor 2eneral!

non(eligibles holding permanent appointments to C% positions were never meant to remain

immobile in their status. ,therwise! their lac# of eligibility would be a premium vesting themwith permanency in the C% positions! a privilege even their eligible counterparts do not en"oy.

Then too! the cases on unconsented transfer invo#ed by private respondent find no

application in the present case. To reiterate! private respondent&s appointment is merely

temporary) hence! he could be transferred or reassigned to other positions without violating his

right to security of tenure. (De ;eon v. Court of Appea)s, 3/ SCRA 1, 2an. --, -//1, n Banc "


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In addition! it must be stressed that the security of tenure of employees in the career executive

service 7except first and second level employees in the civil service8! pertains only to ran# and

not to the office or to the position to which they may be appointed. Thus! a career executiveservice officer may be transferred or reassigned from one position to another without losing his

ran# which follows him wherever he is transferred or reassigned. In fact! a C%, suffers no

diminution of salary even if assigned to a C% position with lower salary grade! as he iscompensated according to his C% ran# and not on the basis of the position or office he

occupies.

In the case at bar! there is no question that respondent 1amon %. 1oco! though a C% eligible!

does not possess the appropriate C% ran#! which is 9 C% ran# level /! for the position of1egional 4irector of the *T, 71egion /8. :alling short of one of the qualifications that would

complete his membership in the C%! respondent cannot successfully interpose violation of

security of tenure. Accordingly! he could be validly reassigned to other positions in the careerexecutive service. x x x

-oreover! under the mobility and flexibility principles of the Integrated 1eorgani$ation 5lan!C% personnel may be reassigned or transferred from one position to another x x x.

,ne last point. 1espondent capitali$es on the fact that petitioner *uis -ario -. 2eneral is not a

C% eligible. The absence! however! of such C% eligibility is of no moment. As stated in 5artIII! Chapter I! Article I/! paragraph ;7c8! of the Integrated 1eorgani$ation 5lan 9

“x x x the 5resident may! in exceptional cases! appoint any person who is not a Career xecutive

%ervice eligible) provided that such appointee shall subsequently ta#e the required Careerxecutive %ervice examination and that he shall not be promoted to a higher class until he

qualified in such examination.”

vidently! the law allows appointment of those who are not C% eligible! sub"ect to the obtention

of said eligibility! in the same manner that the appointment of respondent who does not possessthe required C% ran# 7C% ran# level /8 for the position of 1egional 4irector of the *T,! is

permitted in a temporary capacity. (=enera) v. Roco, 3/ SCRA -, 2an. -!, -//1, 1st Div.

"o9 are positions in te Civi) Service c)assified Discuss te caracteristics of eac.

Ans.: 5ositions in the Civil %ervice may be classified into


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specified by law! or which is coterminous with that of the appointing authority or sub"ect to his

pleasure! or which is limited to the duration of a particular pro"ect for which purpose

employment was made (Sec. !, Cap. -, Su*tit)e A, Tit)e :, B5. #, .?. @o. -!-%.

at is a primari)' confidentia) position at is te test to determine 9eter a position is

primari)' confidentia) or not

Held: A primarily con!idential position is one which denotes not only confidence in the aptitude

of the appointee for the duties of the office but primarily close intimacy which ensures freedomfrom intercourse without embarrassment or freedom from misgivings or betrayals of personal

trust or confidential matters of state. (De )os Santos v. &a))are, 7 i). -! "1!/$%

?nder the pro"imity rule! the occupant of a particular position could be considered a confidential

employee if the predominant reason why he was chosen by the appointing authority was the

latter&s belief that he can share a close intimate relationship with the occupant which ensuresfreedom of discussion without fear or embarrassment or misgivings of possible betrayal of

personal trust or confidential matters of state. +ithal! where the position occupied is moreremote from that of the appointing authority! the element of trust between them is no longer

predominant. (CSC v. Sa)as, -7 SCRA 1, 2une 1!, 1!!7%

Does te Civi) Service ;a9 contemp)ate a revie9 of decisions e4onerating officers or

emp)o'ees from administrative carges

Held: 6y this ruling! we now expressly abandon and overrule extant "urisprudence that “the phrase @party adversely affected by the decision& refers to the government employee against

whom the administrative case is filed for the purpose of disciplinary action which may ta#e theform of suspension! demotion in ran# or salary! transfer! removal or dismissal from office” and

not included are “cases where the penalty imposed is suspension for not more than thirty 7>8

days or fine in an amount not exceeding thirty days salary” #Paredes v. Civil Service

Commission, $%& SC'A (), (*+ or “when respondent is exonerated of the charges! there is no

occasion for appeal.” #Mende v. Civil Service Commission, &-) SC'A %*, %(+ In other words!

we overrule prior decisions holding that the Civil %ervice *aw “does not contemplate a review

of decisions exonerating officers or employees from administrative charges” enunciated in Paredes v. Civil Service Commission #$%& SC'A ()+/ Mende v. Civil Service Commission #&-)

SC'A %*+/ Magpale v. Civil Service Commission #&$* SC'A 0%(+/ 1avarro v. Civil ServiceCommission and 2"port Processing 3one Autority #&& SC'A &-4+ and more recently DelCastillo v. Civil Service Commission #&04 SC'A $()+. (CSC v. edro ?. Daco'co', =.R. @o.13/, Apri) -!, 1!!!, n Banc "ardo$%

at is preventive suspension Discuss its nature.


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Held: Imposed during the pendency of an administrative investigation! preventive suspension is

not a penalty in itself. It is merely a measure of precaution so that the employee who is charged

may be separated! for obvious reasons! from the scene of his alleged misfeasance while the sameis being investigated. Thus preventive suspension is distinct from the administrative penalty of

removal from office such as the one mentioned in %ec. B7d8 of 5.4. 'o. B. +hile the former

may be imposed on a respondent during the investigation of the charges against him! the latter isthe penalty which may only be meted upon him at the termination of the investigation or the final

disposition of the case. (Bea, Sr. v. CA, -/7 SCRA !, &arc 31, 1!!- "Romero$%

Discuss te 5inds of preventive suspension under te Civi) Service ;a9. en ma' a civi)

service emp)o'ee p)aced under preventive suspension *e entit)ed to compensation

Held: There are two #inds of preventive suspension of civil service employees who are charged

with offenses punishable by removal or suspension 7


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Deld +orth stressing! to resolve the present controversy! we must recall that the authority of the

,mbudsman to conduct administrative investigations is mandated by no less than the

Constitution. x x x

1.A. F! the ,mbudsman *aw! further grants the ,ffice of the ,mbudsman the statutory

power to conduct administrative investigations. x x x

%ection =< of 1.A. F names the officials sub"ect to the ,mbudsman&s disciplinary authority x

x x.

5etitioner is an elective local official accused of grave misconduct and dishonesty. That the,ffice of the ,mbudsman may conduct an administrative investigation into the acts complained

of! appears clear from the foregoing provisions of 1.A. F.

Dowever! the question of whether or not the ,mbudsman may conduct an investigation over a

particular act or omission is different from the question of whether or not petitioner! after

investigation! may be held administratively liable. This distinction ought here to be #ept in mindeven as we must also ta#e note that the power to investigate is distinct from the power to suspend

preventively an erring public officer.

*i#ewise worthy of note! the power of the ,ffice of the ,mbudsman to preventively suspend an

official sub"ect to its administrative investigation is provided by specific provision of law. x x x

+e have previously interpreted the phrase “under his authority” to mean that the ,mbudsman

can preventively suspend all officials under investigation by his office! regardless of the branchof government in which they are employed , excepting of course those removable by

impeachment! members of Congress and the Gudiciary.

The power to preventively suspend is available not only to the ,mbudsman but also to the

4eputy ,mbudsman. This is the clear import of %ection =H of 1.A. F abovecited.

There can be no question in this case as to the power and authority of respondent 4eputy,mbudsman to issue an order of preventive suspension against an official li#e the petitioner! to

prevent that official from using his office to intimidate or influence witnesses #7loria v. CA, et

al., 7.'. 1o. $0$-$&, April &$, $%%%, p. 4, 0- SC'A &(4+ or to tamper with records that might be vital to the prosecution of the case against him #8asay, Jr. v. Desierto, et al., 7.'. 1o. $0))%*,

Decem9er &(, $%%(, p. %, 0-- SC'A )%)+. In our view! the present controversy simply boils

down to this pivotal question 2iven the purpose of preventive suspension and the circumstances

of this case! did respondent 4eputy ,mbudsman commit a grave abuse of discretion when he setthe period of preventive suspension at six months

5reventive suspension under %ec. =H! 1.A. F x x x may be imposed when! among other

factors! the evidence of guilt is strong. The period for which an official may be preventivelysuspended must not exceed six months. In this case! petitioner was preventively suspended and

ordered to cease and desist from holding office for the entire period of six months! which is the

maximum provided by law.


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The determination of whether or not the evidence of guilt is strong as to warrant preventive

suspension rests with the ,mbudsman. The discretion as regards the period of such suspension

also necessarily belongs to the ,mbudsman! except that he cannot extend the period ofsuspension beyond that provided by law. 6ut! in our view! both the strength of the evidence to

warrant said suspension and the propriety of the length or period of suspension imposed on

petitioner are properly raised in this petition for certiorari and prohibition. 0 x x

2iven these findings! we cannot say now that there is no evidence sufficiently strong to "ustifythe imposition of preventive suspension against petitioner. 6ut considering its purpose and the

circumstances in the case brought before us! it does appear to us that the imposition of the

maximum period of six months is unwarranted.

0 x x J2Kranting that now the evidence against petitioner is already strong! even without

conceding that initially it was wea#! it is clear to us that the maximum six(month period is

excessive and definitely longer than necessary for the ,mbudsman to ma#e its legitimate case

against petitioner. +e must conclude that the period during which petitioner was already

preventively suspended! has been sufficient for the lawful purpose of preventing petitioner fromhiding and destroying needed documents! or harassing and preventing witnesses who wish to

appear against him. (=arcia v. &oica, 31 SCRA -/7, Sept. 1/, 1!!!, -nd Div. "Euisum*ing$%

Distinguis preventive suspension under te ;oca) =overnment Code from preventive

suspension under te ?m*udsman Act.

Deld +e reach the foregoing conclusion! however! without necessarily subscribing to

petitioner&s claim that the *ocal 2overnment Code! which he averred should apply to this case of an elective local official! has been violated. True! under said Code! preventive suspension may

only be imposed after the issues are "oined! and only for a maximum period of sixty days. Dere!

petitioner was suspended without having had the chance to refute first the charges against him!and for the maximum period of six months provided by the ,mbudsman *aw. 6ut asrespondents argue! administrative complaints commenced under the ,mbudsman *aw are

distinct from those initiated under the *ocal 2overnment Code. 1espondents point out that the

shorter period of suspension under the *ocal 2overnment Code is intended to limit the period ofsuspension that may be imposed by a mayor! a governor! or the 5resident! who may be motivated

by partisan political considerations. In contrast the ,mbudsman! who can impose a longer

period of preventive suspension! is not li#ely to be similarly motivated because it is aconstitutional body. The distinction is valid but not decisive! in our view! of whether there has

been grave abuse of discretion in a specific case of preventive suspension.

1espondents may be correct in pointing out the reason for the shorter period of

preventive suspension imposable under the *ocal 2overnment Code. 5olitical color could taintthe exercise of the power to suspend local officials by the mayor! governor! or 5resident&s office.

In contrast the ,mbudsman! considering the constitutional origin of his ,ffice! always ought to

be insulated from the vagaries of politics! as respondents would have us believe.


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In :agad v. 7oo;Dadole, on the matter of whether or not the ,mbudsman has been

stripped of his power to investigate local elective officials by virtue of the *ocal 2overnment

Code! we said

“Indeed! there is nothing in the *ocal 2overnment Code to indicate that it has repealed! whether

expressly or impliedly! the pertinent provisions of the ,mbudsman Act. The two statutes on thespecific matter in question are not so inconsistent! let alone irreconcilable! as to compel us to

only uphold one and stri#e down the other.”

It was also argued in :agad, that the six(month preventive suspension under the

,mbudsman *aw is “much too repugnant” to the F(day period that may be imposed under the

*ocal 2overnment Code. 6ut per G. /itug! “the two provisions govern differently.”

Dowever! petitioner now contends that :agad did not settle the question of whether alocal elective official may be preventively suspended even before the issues could be "oined.

Indeed it did not! but we have held in other cases that there could be preventive suspension even

before the charges against the official are heard! or before the official is given an opportunity to prove his innocence. 5reventive suspension is merely a preliminary step in an administrative

investigation and is not in any way the final determination of the guilt of the official concerned.

5etitioner also avers that the suspension order against him was issued in violation of

%ection =FJ=K of the ,mbudsman *aw x x x.

5etitioner argues that before an inquiry may be converted into a full(blownadministrative investigation! the official concerned must be given = hours to answer the charges

against him. In his case! petitioner says the inquiry was converted into an administrative

investigation without him being given the required number of hours to answer.

Indeed! it does not appear that petitioner was given the requisite = hours to submit awritten answer to the complaint against him. This! however! does not ma#e invalid the

preventive suspension order issued against him. As we have earlier stated! a preventive

suspension order may be issued even before the charges against the official concerned is heard.

-oreover! respondents state that petitioner was given


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5hilippines! from any government position! and furnishing a copy thereof to the %enate of the

5hilippines for the implementation of the suspension order.

The authority of the %andiganbayan to order the preventive suspension of anincumbent public official charged with violation of the provisions of 1epublic Act 'o. >


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due preliminary investigation) that the acts for which he stands charged do not constitute a

violation of the provisions of 1epublic Act >


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-ember. A penalty of suspension! when imposed! shall not exceed sixty days.” 7%ection K!

Article /I! The provision

allowing the Court to loo# into any possible grave abuse of discretion committed by anygovernment instrumentality has evidently been couched in general terms in order to ma#e it

malleable to "udicial interpretation in the light of any emerging milieu. In its normal concept! the

term has been said to imply an arbitrary! despotic! capricious or whimsical exercise of "udgmentamounting to lac# or excess of "urisdiction. +hen the question! however! pertains to an affair

internal to either of Congress or the xecutive! the Court subscribes to the view tat unless an

in!ringement o! any speci!ic Constitutional proscription tere9y ineres te Court sould not

deign su9stitute its o5n udgment over tat o! any o! te oter t5o 9rances o! government. It isan impairment or a clear disregard o! a speci!ic constitutional precept or provision tat can

un9olt te steel door !or udicial intervention. If any part of the Constitution is not! or ceases to

be! responsive to contemporary needs! it is the people! not the Court! who must promptly react inthe manner prescribed by the Charter itself.


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'epu9lic Act 1o. 0-$% does not e"clude !rom its coverage te mem9ers o! Congress and tat,

tere!ore, te Sandigan9ayan did not err in tus decreeing te assailed preventive suspension

order.

Attention might be called to the fact that Criminal Case 'o.


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+e rule in the negative.

The practice of designating members of the Cabinet! their deputies and assistants as

members of the governing bodies or boards of various government agencies andinstrumentalities! including government(owned and controlled corporations! became prevalent

during the time legislative powers in this country were exercised by former 5resident :erdinand. -arcos pursuant to his martial law authority. There was a proliferation of newly(created

agencies! instrumentalities and government(owned and controlled corporations created by presidential decrees and other modes of presidential issuances where Cabinet members! their

deputies or assistants were designated to head or sit as members of the board with the

corresponding salaries! emoluments! per diems! allowances and other perquisites of office. 0 xx

This practice of holding multiple offices or positions in the government soon led to

abuses by unscrupulous public officials who too# advantage of this scheme for purposes of self(

enrichment. 0 x x

5articularly odious and revolting to the people&s sense of propriety and morality in

government service were the data contained therein that 1oberto v. ,ngpin was a member of the

governing boards of twenty(nine 7=E8 governmental agencies! instrumentalities and corporations)

Imelda 1. -arcos of twenty(three 7=>8) Cesar .A. /irata of twenty(two 7==8) Arturo 1. Tanco!Gr. of fifteen 7


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-oreover! such intent is underscored by a comparison of %ection ! Article /II with

other provisions of the Constitution on the disqualifications of certain public officials or

employees from holding other offices or employment. ?nder %ection ! Article /I! “J'Ko%enator or -ember of the Douse of 1epresentatives may hold any other office or employment in

te 7overnment " " ".> ?nder section ;7H8! Article 0/I! “J'Ko member of the armed forces in

the active service shall! at any time! be appointed in any capacity to a civilian position in te7overnment, including government(owned or controlled corporations or any of their

subsidiaries.” ven %ection 7=8! Article I0(6! relied upon by respondents provides “J?Knless

otherwise allowed by law or by the primary functions of his position! no appointive official shallhold any other office or employment in te 7overnment.>

It is quite notable that in all these provisions on disqualifications to hold other office or

employment! the prohibition pertains to an office or employment in te government and

government(owned or controlled corporations or their subsidiaries. In stri#ing contrast is thewording of %ection ! Article /II which states that “JTKhe 5resident! /ice(5resident! the

-embers of the Cabinet! and their deputies or assistants shall not! unless otherwise provided in

this Constitution! hold any other office or employment during their tenure.” In the latter provision! the disqualification is absolute! not being qualified by the phrase “in the

2overnment.” The prohibition imposed on the 5resident and his official family is therefore all(

embracing and covers both public and private office or employment.

2oing further into %ection ! Article /II! the second sentence provides “They shallnot! during said tenure! directly or indirectly! practice any other profession! participate in any

business! or be financially interested in any contract with! or in any franchise! or special privilege

granted by the 2overnment or any subdivision! agency or instrumentality thereof! including

government(owned or controlled corporations or their subsidiaries.” These sweeping! all(embracing prohibitions imposed on the 5resident and his official family! which prohibitions are

not similarly imposed on other public officials or employees such as the -embers of Congress!members of the civil service in general and members of the armed forces! are proof of the intentof the


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5resident! -embers of the Cabinet! their deputies and assistants with respect to holding other

offices or employment in the government during their tenure. 1espondents& interpretation that

%ection of Article /II admits of the exceptions found in %ection ! par. 7=8 of Article I0(6would obliterate the distinction so carefully set by the framers of the Constitution as to when the

high(ran#ing officials of the xecutive 6ranch from the 5resident to assistant %ecretary! on the

one hand! and the generality of civil servants from the ran# immediately below Assistant%ecretary downwards! on the other! may hold any other office or position in the government

during their tenure.

-oreover! respondents& reading of the provisions in question would render certain

parts of the Constitution inoperative. This observation applies particularly to the /ice(5residentwho! under %ection of Article /II is allowed to hold other office or employment when so

authori$ed by the Constitution! but who as an elective public official under %ec. ! par. 78. The phrase “unless otherwise

provided in this Constitution” must be given a literal interpretation to refer only to those particular instances cited in the Constitution itself! to wit the /ice(5resident being appointed as a

member of the Cabinet under %ection >! par. 7=8! Article /II) or acting as 5resident in those

instances provided under %ection ! pars. 7=8 and 7>8! Article /II) and! the %ecretary of Gustice

being e";o!!icio member of the Gudicial and 6ar Council by virtue of %ection B 7


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during the debate and deliberation on the general rule laid down for all appointive officials

should be considered as mere personal opinions which cannot override the constitution&s

manifest intent and the people&s understanding thereof.

In the light of the construction given to %ection ! Article /II in relation to %ection !

par. 7=8! Article I0(6 of the


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Held: The prohibition against holding dual or multiple offices or employment under

%ection ! Article /II of the Constitution must not! however! be construed as applying to posts

occupied by the xecutive officials specified therein without additional compensation in an e";o!!icio capacity as provided by law and as reuired #As opposed to te term =allo5ed> used in

Section 4, par. #&+, Article I;< o! te Constitution, 5ic is permissive. ='euired> suggests an

imposition, and tere!ore, o9ligatory in nature+ by the primary functions of said officials& office.The reason is that these posts do not comprise “any other office” within the contemplation of the

constitutional prohibition but are properly an imposition of additional duties and functions on

said officials. To characteri$e these posts otherwise would lead to absurd consequences! amongwhich are The 5resident of the 5hilippines cannot chair the 'ational %ecurity Council

reorgani$ed under xecutive ,rder 'o.


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The term “primary” used to describe “functions” refers to the order of importance and

thus means chief or principal function. The term is not restricted to the singular but may refer to

the plural #00A Eords and Prases, p. &$-+. The additional duties must not only be closelyrelated to! but must be required by the official&s primary functions. xamples of designations to

positions by virtue of one&s primary functions are the %ecretaries of :inance and 6udget sitting

as members of the -onetary 6oard! and the %ecretary of Transportation and Communicationsacting as Chairman of the -aritime Industry Authority and the Civil Aeronautics 6oard.

If the functions to be performed are merely incidental! remotely related! inconsistent!

incompatible! or otherwise alien to the primary function of a cabinet official! such additional

functions would fall under the purview of “any other office” prohibited by the Constitution. Anexample would be the 5ress ?ndersecretary sitting as a member of the 6oard of the 5hilippine

Amusement and 2aming Corporation. The same rule applies to such positions which confer on

the cabinet official management functions and3or monetary compensation! such as but not limitedto chairmanships or directorships in government(owned or controlled corporations and their

subsidiaries.

-andating additional duties and functions to the 5resident! /ice(5resident! Cabinet

-embers! their deputies or assistants which are not inconsistent with those already prescribed bytheir offices or appointments by virtue of their special #nowledge! expertise and s#ill in their

respective executive offices is a practice long(recogni$ed in many "urisdictions. It is a practice

"ustified by the demands of efficiency! policy direction! continuity and coordination among thedifferent offices in the xecutive 6ranch in the discharge of its multifarious tas#s of executing

and implementing laws affecting national interest and general welfare and delivering basic

services to the people. It is consistent with the power vested on the 5resident and his alter egos!

the Cabinet members! to have control of all the executive departments! bureaus and offices and toensure that the laws are faithfully executed. +ithout these additional duties and functions being

assigned to the 5resident and his official family to sit in the governing bodies or boards ofgovernmental agencies or instrumentalities in an e";o!!icio capacity as provided by law and asrequired by their primary functions! they would be deprived of the means for control and

supervision! thereby resulting in an unwieldy and confused bureaucracy.

It bears repeating though that in order that such additional duties or functions may not

transgress the prohibition embodied in %ection ! Article /II of the


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extra compensation! whether it be in the form of a per diem or an honorarium or an allowance! or

some other such euphemism. 6y whatever name it is designated! such additional compensation

is prohibited by the Constitution. (Civi) ;i*erties Gnion v. 4ecutive Secretar', 1! SCRA 317,8e*. --, 1!!1, n Banc "8ernan, C2$%

Sou)d mem*ers of te Ca*inet appointed to oter positions in te government pursuant to 4ecutive ?rder @o. - 9ic )ater 9as dec)ared unconstitutiona) *' te SC for *eing

vio)ative of Section 13, Artic)e #:: of te Constitution *e made to reim*urse te government

for 9atever pa' and emo)uments te' received from o)ding suc oter positions

Held: 4uring their tenure in the questioned positions! respondents may be considered

de !acto officers and as such entitled to emoluments for actual services rendered. It has beenheld that “in cases where there is no de ure officer! a de !acto 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 an appropriate action recover the salary! fees and other

compensations attached to the office. This doctrine is! undoubtedly! supported on equitable

grounds since it seems un"ust that the public should benefit by the services of an officer de !acto and then be freed from all liability to pay any one for such services. Any per diem! allowances

or other emoluments received by the respondents by virtue of actual services rendered in thequestioned positions may therefore be retained by them. (Civi) ;i*erties Gnion v. 4ecutive Secretar', 1! SCRA 317, 8e*. --, 1!!1, n Banc "8ernan, C2$%

May a *enator or %ongressman hold any other office or employment?

Ans.: 'o %enator or -ember of the Douse of 1epresentatives may hold any other

office or employment in the government! or any subdivision! agency! or instrumentality thereof!including government(owned or controlled corporations or their subsidiaries! during his termwithout forfeiting his seat. 'either shall he be appointed to any office which may have been

created or the emoluments thereof increased during the term for which he was elected. (Sec. 13,

Art. #:, 1!7 Constitution%.

at are te situations covered *' te )a9 on nepotism

Held: ?nder the definition of nepotism! one is guilty of nepotism if an appointment is issued in

favor of a relative within the third civil degree of consanguinity or affinity of any of thefollowing

a8 appointing authority)

b8 recommending authority)

c8 chief of the bureau or office) and


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d8 person exercising immediate supervision over the appointee.

Clearly! there are four situations covered. In the last two mentioned situations! it is immaterial

who the appointing or recommending authority is. To constitute a violation of the law! it sufficesthat an appointment is extended or issued in favor of a relative within the third civil degree of

consanguinity or affinity of the chief of the bureau or office! or the person exercising immediatesupervision over the appointee. (CSC v. edro ?. Daco'co', =.R. @o. 13/, Apri) -!, 1!!!,

n Banc "ardo$%

at are te e4emptions from te operation of te ru)es on nepotism

Ans.: The following are exempted from the operation of the rules on nepotism 7a8 persons

employed in a confidential capacity! 7b8 teachers! 7c8 physicians! and 7d8 members of the Armed

:orces of the 5hilippines.

The rules on nepotism shall li#ewise not be applicable to the case of a member of any

family who! after his or her appointment to any position in an office or bureau! contracts

marriage with someone in the same office or bureau! in which event the employment or retentiontherein of both husband and wife may be allowed. (Sec. !, Cap. 7, Su*tit)e A, Tit)e :, B5. #, .?. @o. -!-%

at is te doctrine of forgiveness or condonation Does it app)' to pending crimina) cases

Deld


22/38

operates as a condonation by the electorate of the misconduct committed by an elective official

during his previous term. 5etitioner further cites the ruling of this Court in Pascual v. :on.

Provincial


23/38

In Salalima, we recall that the %olicitor 2eneral maintained that Aguinaldo did not

apply to that case because the administrative case against 2overnor 1odolfo Aguinaldo of

Cagayan was already pending when he filed his certificate of candidacy for his reelection bid. 'evertheless! in Salalima, the Court applied the Aguinaldo doctrine! even if the administrative

case against 2overnor %alalima was filed after his reelection.

+e now come to the concluding inquiry. 2ranting that the ,ffice of the ,mbudsman

may investigate! for purposes provided for by law! the acts of petitioner committed prior to his present term of office) and that it may preventively suspend him for a reasonable period! can that

office hold him administratively liable for said acts

In a number of cases! we have repeatedly held that a reelected local official may not beheld administratively accountable for misconduct committed during his prior term of office. The

rationale for this holding is that when the electorate put him bac# into office! it is resumed that it

did so with full #nowledge of his life and character! including his past misconduct. If! armed

with such #nowledge! it still reelects him! then such reelection is considered a condonation of his

past misdeeds.

Dowever! in the present case! respondents point out that the contract entered into by

petitioner with :.. Muellig was signed "ust four days before the date of the elections. It was not

made an issue during the election! and so the electorate could not be said to have voted for petitioner with #nowledge of this particular aspect of his life and character.

:or his part! petitioner contends that “the only conclusive determining factor” as

regards the people&s thin#ing on the matter is an election. ,n this point we agree with petitioner.That the people voted for an official with #nowledge of his character is presumed! precisely to

eliminate the need to determine! in factual terms! the extent of this #nowledge. %uch an

underta#ing will obviously be impossible. ,ur rulings on the matter do not distinguish the precise timing or period when the misconduct was committed! rec#oned from the date of theofficial&s reelection! except that it must be prior to said date.

As held in Salalima,

“The rule adopted in Pascual, qualified in Aguinaldo insofar as criminal cases are concerned! is

still a good law. %uch a rule is not only founded on the theory that an official&s reelectionexpresses the sovereign will of the electorate to forgive or condone any act or omission

constituting a ground for administrative discipline which was committed during his previous

term. +e may add that sound policy dictates it. To rule oter5ise 5ould open te !loodgates to

e"acer9ating endless partisan contests 9et5een te reelected o!!icial and is political enemies,5o may not stop to ound te !ormer during is ne5 term 5it administrative cases !or acts

alleged to ave 9een committed during is previous term. Dis second term may thus be devoted

to defending himself in the said cases to the detriment of public service x x x.”

The above ruling in Salalima applies to this case. 5etitioner cannot anymore be held

administratively liable for an act done during his previous term! that is! his signing of the

contract with :.. Muellig.


24/38

The assailed retainer agreement in Salalima was executed sometime in


25/38

Nualifications %tandards 71evised


26/38

&a' te appointment of a person assuming a position in te civi) service under a comp)eted

appointment *e va)id)' reca))ed or revo5ed

Deld It has been held that upon the issuance of an appointment and the appointee&s assumptionof the position in the civil service! “he acquires a legal right which cannot be ta#en away either

by revocation of the appointment or by removal except for cause and with previous notice and

hearing.” -oreover! it is well(settled that the person assuming a position in the civil serviceunder a completed appointment acquires a legal! not "ust an equitable! right to the position. This

right is protected not only by statute! but by the Constitution as well! which right cannot be ta#en

away by either revocation of the appointment! or by removal! unless there is valid cause to do so! provided that there is previous notice and hearing.

5etitioner admits that his very first official act upon assuming the position of town mayor was to

issue ,ffice ,rder 'o. E;(< which recalled the appointments of the private respondents. There

was no previous notice! much less a hearing accorded to the latter. Clearly! it was petitioner whoacted in undue haste to remove the private respondents without regard for the simple

requirements of due process of law. +hile he argues that the appointing power has the sole

authority to revo#e said appointments! there is no debate that he does not have blan#et authority

to do so. 'either can he question the C%C&s "urisdiction to affirm or revo#e the recall.

1ule /! %ection E of the ,mnibus Implementing 1egulations of the 1evised Administrative Code

specifically provides that “an appointment accepted by the appointee cannot be withdrawn or

revo#ed by the appointing authority and shall remain in force and in effect until disapproved bythe Commission.” Thus! it is the C%C that is authori$ed to recall an appointment initially

approved! but only when such appointment and approval are proven to be in disregard of

applicable provisions of the civil service law and regulations.

-oreover! %ection


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/iolation of the existing collective agreement between management and employees relative to

promotion) or

/iolation of other existing civil service law! rules and regulations.

Accordingly! the appointments of the private respondents may only be recalled on the above(cited grounds. And yet! the only reason advanced by the petitioner to "ustify the recall was that

these were “midnight appointments.” The C%C correctly ruled! however! that the constitutional

prohibition on so(called “midnight appointments!” specifically those made within two 7=8 monthsimmediately prior to the next presidential elections! applies only to the 5resident or Acting

5resident. #De 'ama v. Court o! Appeals, 0*0 SC'A %), Fe9. &(, &--$, 2n


28/38

proper !orm. The instant case is therefore a dispute between! at its worst! private respondent&s

substantial compliance with the standing rules! and the City 2overnment&s insistence that the

lowly cler# should have still gone through the formalities of applying for leave despite erdetention, o! 5ic petitioner ad actual notice, and te suspension order couced in simple

language tat se 5as 9eing suspended until te !inal disposition o! er criminal case.

The meaning of suspension until te !inal disposition o! er case is that should her case

be dismissed she should be reinstated to her position with payment of bac# wages. %he did nothave to apply for leave of absence since she was already suspended by her employer until her

case would be terminated. +e have done "ustice to the wor#ingman in the past) today we will do

no less by resolving all doubts in favor of the humble employee in faithful obeisance to theconstitutional mandate to afford full protection to labor 7Const.! Art. 0III! %ec. >! par. of 1ule 0/I! *eave of Absence! of 1es. 'o. E

automatic leave of absence.”

The Court believes that private respondent cannot be faulted for failing to file prior toher detention an application for leave and obtain approval thereof. The records clearly show that

she had been advised three 7>8 days after her arrest! or on E %eptember government of -a#ati City ad placed er under suspension until te !inal disposition o! ercriminal case. This act of petitioner indubitably recogni$ed private respondent&s predicament

and thus allowed her to forego reporting for wor# during the pendency of her criminal case

without the needless exercise of strict formalities. At the very least! this official communication

should be ta#en as an equivalent of a prior approved leave of absence since it was her employeritself which placed her under suspension and thus excused her from further formalities in

applying for such leave. -oreover! te arrangement 9ound te City 7overnment to allo5

private respondent to return to er 5orG a!ter te termination o! er case, i.e., if acquitted of thecriminal charge. This pledge sufficiently served as legitimate reason for her to altogether

dispense with the formal application for leave) there was no reason to! as in fact it was not

required! since she was for all practical purposes incapacitated or disabled to do so.


29/38

Indeed! private respondent did not have the least intention to go on A+,* from her post as Cler#

III of petitioner! for A+,* means the employee leaving or abandoning his post without

"ustifiable reason and without notifying his employer. In the instant case! private respondent hada valid reason for failing to report for wor# as she was detained without bail. Dence! right after

her release from detention! and when finally able to do so! she presented herself to the -unicipal

5ersonnel ,fficer of petitioner City 2overnment to report for wor#. Certainly! had she been toldthat it was still necessary for her to file an application for leave despite the E %eptember


30/38

-oreover! we certainly cannot nullify the City 2overnment&s order of suspension! as

we have no reason to do so! much less retroactively apply such nullification to deprive private

respondent of a compelling and valid reason for not filing the leave application. :or as we haveheld! a void act though in law a mere scrap of paper nonetheless confers legitimacy upon past

acts or omissions done in reliance thereof. Consequently! the existence of a statute or executive

order prior to its being ad"udged void is an operative fact to which legal consequences areattached. It would indeed be ghastly unfair to prevent private respondent from relying upon the

order of suspension in lieu of a formal leave application.

At any rate! statements are! or should be! construed against the one responsible for the

confusion) otherwise stated! petitioner must assume full responsibility for the consequences of itsown act! hence! he should be made to answer for the mix(up of private respondent as regards the

leave application. At the very least! it should be considered estopped from claiming that its order

of suspension is void or that it did not excuse private respondent from filing an application forleave on account of her incarceration. It is a fact that she relied upon this order! issued barely

three 7>8 days from the date of her arrest! and assumed that when the criminal case would be

settled she could return to wor# without need of any prior act. x x x

The holding of the Civil %ervice Commission that private respondent was on automatic leave ofabsence during the period of her detention must be sustained. The C%C is the constitutionally

mandated central personnel agency of the 2overnment tas#ed to “establish a career service and

adopt measures to promote morale! efficiency! integrity! responsiveness! progressiveness andcourtesy in the civil service” 7Const.! Art. I0(6! %ec. >8 and “strengthen the merit and rewards

system! integrate all human resources development programs for all levels and ran#s! and

institutionali$e a management climate conducive to public accountability.” 6esides! the

Administrative Code o! $%(4 further empowers the C%C to “prescribe! amend! and enforce rulesand regulations for carrying into effect the provisions of the Civil Service La5 and other

pertinent laws!” and for matters concerning leaves of absence! the Code specifically vests theC%C to ordain 9

%ec. F. Leave o! a9sence. 9 ,fficers and employees in the Civil %ervice shall be entitled to

leave of absence! with or without pay! as may be provided by law and the rules and regulations of

the Civil %ervice Commission in the interest of the service.

5ursuant thereto the C%C promulgated 'esolution 1o. %$;$0$ dated = 4ecember; is now %ec. F> as amended by C%C -C 'os. H

As a general rule! %ecs. = and ;=! as well as %ecs. >; and F>! require an approved

leave of absence to avoid being an A+,*. Dowever! these provisions cannot be interpreted as

exclusive and referring only to one mode of securing the approval of a leave of absence which


31/38

would require an employee to apply for it! formalities and all! before exceeding thirty 7>8 days

of absence in order to avoid from being dropped from the rolls. There are! after all! other means

of see#ing and granting an approved leave of absence! one of which is the C%C recogni$ed ruleof automatic leave of absence under specified circumstances. x x x

As properly noted! the C%C was only interpreting its own rules on leave of absence andnot a statutory provision 7As a matter of fact! %ec. F of the Administrative Code does not

provide for any rule on leave of absence other than that civil servants are entitled to leave ofabsence8 in coming up with this uniform rule. ?ndoubtedly! the C%C li#e any other agency has

the power to interpret its own rules and any phrase contained in them with its interpretation

significantly becoming part of the rules themselves. x x x

?nder 1A FF;F #An Act to Protect te Security o! Tenure o! Civil Service 6!!icers and 2mployees in te Implementation o! 7overnment 'eorganiation+ and 1A


32/38

discharge! for instance! after a summary removal! an unreasonable delay by an officer illegally

removed in ta#ing steps to vindicate his rights may constitute an abandonment of the office .

+here! while desiring and intending to hold the office! and with no willful desire or intention toabandon it! the public officer vacates it in deference to the requirements of a statute which is

afterwards declared unconstitutional! such a surrender will not be deemed an abandonment and

the officer may recover the effect. (Canonizado v. Aguirre, 31 SCRA !, 0, 8e*. 1,-//1, n Banc "=onzaga0Re'es$%

B' accepting anoter position in te government during te pendenc' of a case I *rougt

precise)' to assai) te constitutiona)it' of is remova) I ma' a person *e deemed to ave

a*andoned is c)aim for reinstatement

Held: Although petitioners do not deny the appointment of Canoni$ado as Inspector 2eneral!

they maintain that Canoni$ado&s initiation and tenacious pursuance of the present case would

belie any intention to abandon his former office. 5etitioners assert that Canoni$ado should not be faulted for see#ing gainful employment during the pendency of this case. :urthermore!

petitioners point out that from the time Canoni$ado assumed office as Inspector 2eneral he never

received the salary pertaining to such position x x x.

6y accepting the position of Inspector 2eneral during the pendency of the present case 9 brought precisely to assail the constitutionality of his removal from the 'A5,*C,- 9

Canoni$ado cannot be deemed to have abandoned his claim for reinstatement to the latter

position. :irst of all! Canoni$ado did not voluntarily leave his post as Commissioner! but wascompelled to do so on the strength of %ection B of 1A B;;< .

In our decision of =; Ganuary =! we struc# down the abovequoted provision for being violative of petitioner&s constitutionally guaranteed right to security of tenure. Thus!

Canoni$ado harbored no willful desire or intention to abandon his official duties. In fact!Canoni$ado! together with petitioners x x x lost no time disputing what they perceived to be an

illegal removal) a few wee#s after 1A B;;< too# effect x x x petitioners instituted the current

action x x x assailing the constitutionality of certain provisions of said law. The removal of

petitioners from their positions by virtue of a constitutionally infirm act necessarily negates afinding of voluntary relinquishment. (Canonizado v. Aguirre, 31 SCRA !, 0, 8e*. 1,

-//1, n Banc "=onzaga0Re'es$%

Distinguis term6 of office from tenure6 of te incum*ent.

Held: In the law of public officers! there is a settled distinction between “term” and “tenure.”“JTKhe term of an office must be distinguished from the tenure of the incumbent. The term

means the time during which the officer may claim to hold office as of right! and fixes the

interval after which the several incumbents shall succeed one another. The tenure represents theterm during which the incumbent actually holds the office. The term of office is not affected by


33/38

the hold(over. The tenure may be shorter than the term for reasons within or beyond the power

of the incumbent.” (Te)ma . =aminde v. C?A, =.R. @o. 1/33, Dec. 13, -///, n Banc

"ardo$%

Discuss te operation of te rotationa) p)an insofar as te term of office of te Cairman and

&em*ers of te Constitutiona) Commissions is concerned.

Held: In 'epu9lic v. Imperial, we said that “the operation of the rotational plan requires two

conditions! both indispensable to its wor#ability 78Commissioners should start on a common date, and 7=8 that any vacancy due to death!

resignation or disability before the expiration of the term should only be filled only !or te

une"pired 9alance o! te term.>

Consequently! the terms of the first Chairmen and Commissioners of the Constitutional

Commissions under the


34/38

Indeed! the law abhors a vacuum in public offices! and courts generally indulge in the strong

presumption against a legislative intent to create! by statute! a condition which may result in an

executive or administrative office becoming! for any period of time! wholly vacant or unoccupied by one lawfully authori$ed to exercise its functions. This is founded on obvious considerations

of public policy! for the principle of holdover is specifically intended to prevent public

convenience from suffering because of a vacancy and to avoid a hiatus in the performance ofgovernment functions. (;ecaroz v. Sandigan*a'an, 3/ SCRA 3!7, &arc -, 1!!!, -nd Div. "Be))osi))o$%

=. The rule is settled that unless “holding over be expressly or impliedly prohibited! the

incumbent may continue to hold over until someone else is elected and qualified to assume theoffice.” This rule is demanded by the “most obvious requirements of public policy! for without it

there must frequently be cases where! from a failure to elect or a refusal or neglect to qualify! the

office would be vacant and the public service entirely suspended.” ,therwise stated! the purposeis to prevent a hiatus in the government pending the time when the successor may be chosen and

inducted into office. (=a)arosa v. #a)encia, --7 SCRA 7-, @ov. 11, 1!!3, n Banc "Davide,

2r.$%

at is resignation at are te re+uisites of a va)id resignation

Held: B of the 1evised 5enal Code. (Sangguniang Ba'an of San Andres, Catanduanesv. CA, - SCRA -7, 2an. 1, 1!!%

=. 1esignation x x x is a factual question and its elements are beyond quibble tere must 9e an

intent to resign and te intent must 9e coupled 9y acts o! relinuisment. The validity of a

resignation is not governed by any formal requirement as to form. It can be oral. It can bewritten. It can be express. It can be implied. As long as the resignation is clear! it must be given

legal effect. (strada v. Desierto, =.R. @os. 171/01, &arc -, -//1, en Banc "uno$%

at is a*andonment of an office at are its re+uisites >o9 is it distinguised from

resignation

Held: A9andonment o! an o!!ice has been defined as the voluntary relinquishment of an office

by the holder! with the intention of terminating his possession and control thereof. Indeed!

abandonment of office is a species of resignation) while resignation in general is a formalrelinquishment! abandonment is a voluntary relinquishment through nonuser.


35/38

Abandonment springs from and is accompanied by deliberation and freedom of choice. Its

concomitant effect is that the former holder of an office can no longer legally repossess it even

by forcible reoccupancy.

Clear intention to abandon should be manifested by the officer concerned. %uch intention may

be express or inferred from his own conduct. Thus! the failure to perform the duties pertaining tothe office must be with the officer&s actual or imputed intention to abandon and relinquish the

office. Abandonment of an office is not wholly a matter of intention) it results from a completeabandonment of duties of such continuance that the law will infer a relinquishment. Therefore!

there are two essential elements of abandonment) !irst, an intention to abandon and! second, an

overt or “external” act by which the intention is carried into effect. (Sangguniang Ba'an of San

Andres, Catanduanes v. CA, - SCRA -7, 2an. 1, 1!!%

at is te effect of acceptance of an incompati*)e office to a c)aim for reinstatement

Deld The next issue is whether Canoni$ado&s appointment to and acceptance of the position of

Inspector 2eneral should result in an abandonment of his claim for reinstatement to the 'A5,*C,-. It is a well(settled rule that he who! while occupying one office! accepts another

incompatible with the first! ipso facto vacates the first office and his title is thereby terminated

without any other act or proceeding. 5ublic policy considerations dictate against allowing thesame individual to perform inconsistent and incompatible duties. The incompatibility

contemplated is not the mere physical impossibility of one person&s performing the duties of the

two offices due to a lac# of time or the inability to be in two places at the same moment! but thatwhich proceeds from the nature and relations of the two positions to each other as to give rise to

contrariety and antagonism should one person attempt to faithfully and impartially discharge the

duties of one toward the incumbent of the other.

There is no question that the positions of 'A5,*C,- Commissioner and Inspector2eneral of the IA% are incompatible with each other. As pointed out by respondents! 1A B;;<

prohibits any personnel of the IA% from sitting in a committee charged with the tas# of

deliberating on the appointment! promotion! or assignment of any 5'5 personnel! whereas the

'A5,*C,- has the power of control and supervision over the 5'5. Dowever! the rule onincompatibility of duties will not apply to the case at bar because at no point did Canoni$ado

discharge the functions of the two offices simultaneously. Canoni$ado was forced out of his first

office by the enactment of %ection B of 1A B;;


36/38

Canoni$ado was impelled to accept this subsequent position by a desire to continue serving the

country! in whatever capacity. %urely! this selfless and noble aspiration deserves to be placed on

at least equal footing with the worthy goal of providing for oneself and one&s family! either ofwhich are sufficient to "ustify Canoni$ado&s acceptance of the position of Inspector 2eneral. A

Contrary ruling would deprive petitioner of his right to live! which contemplates not only a right

to earn a living! as held in previous cases! but also a right to lead a useful and productive life.:urthermore! prohibiting Canoni$ado from accepting a second position during the pendency of

his petition would be to un"ustly compel him to bear the consequences of an unconstitutional act

which under no circumstance can be attributed to him. Dowever! before Canoni$ado can re(assume his post as Commissioner! he should first resign as Inspector 2eneral of the IA%(5'5. (Canonizado v. Aguirre, 31 SCRA !, 8e*. 1, -//1, n Banc "=onzaga0Re'es$%

en ma' unconsented transfers *e considered anatema to securit' of tenure

Held: As held in Sta. Maria v. LopeH

“x x x the rule that outlaws unconsented transfers as anathema to security of tenure applies onlyto an officer who is appointed 9 not merely assigned 9 to a particular station. %uch a rule does

not prJoKscribe 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.x x x”

The guarantee of security of tenure under the Constitution is not a guarantee of perpetual

employment. It only means that an employee cannot be dismissed 7or transferred8 from the

service for causes other than those provided by law and after due process is accorded the

employee. +hat it see#s to prevent is capricious exercise of the power to dismiss. 6ut where itis the law(ma#ing authority itself which furnishes the ground for the transfer of a class of

employees! no such capriciousness can be raised for so long as the remedy proposed to cure a perceived evil is germane to the purposes of the law. (Agripino A. De =uzman, 2r., et a). v.C?&;C, =.R. @o. 1-!11, 2u)' 1!, -///, n Banc "urisima$%

Discuss A*o)ition of ?ffice.

Held: The creation and abolition of public offices is primarily a legislative function. It is

ac#nowledged that Congress may abolish any office it creates without impairing the officer&sright to continue in the position held and that such power may be exercised for various reasons!

such as the lac# of funds or in the interest of economy. Dowever! in order for the abolition to be

valid! it must be made in good faith! not for political or personal reasons! or in order tocircumvent the constitutional security of tenure of civil service employees.

An abolition of office connotes an intention to do away with such office wholly and permanently!

as the word “abolished” denotes. +here one office is abolished and replaced with another office


37/38

vested with similar functions! the abolition is a legal nullity. Thus! in .P. on. A)e4ander . Aguirre, et a)., =.R. @o.

13313-, 2an. -, -///, n Banc "=onzaga0Re'es$%


38/38

=. +hile the 5resident&s power to reorgani$e can not be denied! this does not mean

however that the reorgani$ation itself is properly made in accordance with law. +ell(settled is

the rule that reorgani$ation is regarded as valid provided it is pursued in good faith. Thus! in Dario v. Mison! this Court has had the occasion to clarify that

“As a general rule! a reorgani$ation is carried out in @good faith& if it is for the purpose ofeconomy or to ma#e the bureaucracy more efficient. In that event no dismissal or separation

actually occurs because the position itself ceases to exist. And in that case the security of tenurewould not be a Chinese wall. 6e that as it may! if the abolition which is nothing else but a

separation or removal! is done for political reasons or purposely to defeat security of tenure! or

otherwise not in good faith! no valid abolition ta#es place and whatever abolition done is void a9initio. There is an invalid abolition as where there is merely a change of nomenclature of

positions or where claims of economy are belied by the existence of ample funds.” (;arin v.

4ecutive Secretar', -/ SCRA 713, ?ct. 1, 1!!7%

at are te circumstances evidencing *ad fait in te remova) of emp)o'ees as a resu)t of

reorganization and 9ic ma' give rise to a c)aim for reinstatement or reappointment%

Held: +here there is a significant increase in the number of positions in the new staffing

pattern of the department or agency concerned)

+here an office is abolished and another performing substantially the same functions is created)

+here incumbents are replaced by those less qualified in terms of status of appointment!

performance and merit)

+here there is a reclassification of offices in the department or agency concerned and the

reclassified offices perform substantially the same functions as the original offices)

+here the removal violates the order of separation provided in %ection > hereof .

(Sec. -, R.A. @o. J ;arin v. 4ecutive Secretar', -/ SCRA 713, ?ct. 1, 1!!7%

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LAW on public officers.doc

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