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Edwin Sandoval
Define Appointment. Discuss its nature.
The power to appoint is, in essence, discretionary. The appointing power has the
right of choice which he may exercise freely according to his judgment, deciding for
himself who is best qualified 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. 4, 1999, 3rd Div. [Vitug])
May the Civil Service Commission, or the Supreme Court, validly nullify an
appointment on the ground that somebody else is better qualified?
Held: The head of an agency who is the appointing power is the one most
knowledgeable to decide who can best perform the functions of the office.
Appointment is an essentially discretionary 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 the
appointing 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 for considerations 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 organizational structure and
environmental circumstances within which the appointee must function.
As long as the appointee is qualified the Civil Service Commission has no choice but
to attest to and respect the appointment even if it be proved that there are others
with superior credentials. The law limits the Commissions 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 its will for that of
the appointing authority. Neither can we. (Rimonte v. CSC, 244 SCRA 504-505, May
29, 1995, En Banc [Bellosillo, J.])
Does the next-in-rank rule import any mandatory or peremptory requirement that
the person next-in-rank must be appointed to the vacancy?
Held: The next-in-rank 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 rank or salary. And even in promotions, it can be disregarded for sound reasons
made known to the next-in-rank, as the concept does not import any mandatory or
peremptory requirement that the person next-in-rank must be appointed to the
vacancy. The appointing authority, under the Civil Service Law, 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 several alternatives provided by law.
What the Civil Service Law provides is that if a vacancy is filled by promotion, the
person holding the position next in rank thereto shall be considered for promotion.
In Taduran v. Civil Service Commission, the Court construed that phrase to mean
that the person next-in-rank 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 the following manner:
Can a person who lacks the necessary qualifications for a public position be
appointed to it in a permanent capacity? Illustrative case.
Held: At the outset, it must be stressed that the position of Ministry Legal
Counsel-CESO IV is embraced in the Career Executive Service. X x x
In the case at bar, there is no question that private respondent does not
have the required CES eligibility.
As admitted by private respondent in his
Comment, he is not a CESO or a member of the Career Executive Service.
The Court, having considered these submissions and the additional arguments of
the parties in the petitioners Reply and of the Solicitor-Generals Rejoinder, must
find for the respondents.
The mere fact that a position belongs to the Career Service does not automatically
confer security of tenure in 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. The appointment extended to him cannot
be regarded as permanent even if it may be so designated.
As clearly set forth in the foregoing provisions, two requisites must concur in order
that an employee in the career executive service may attain security of tenure, to
wit:
In the case at bar, there is no question that respondent Ramon S. Roco, though a
CES eligible, does not possess the appropriate CES rank, which is CES rank level V,
for the position of Regional Director of the LTO (Region V). Falling short of one of the
qualifications that would complete his membership in the CES, respondent cannot
successfully interpose violation of security of tenure. Accordingly, he could be
validly reassigned to other positions in the career executive service. x x x
One last point. Respondent capitalizes on the fact that petitioner Luis Mario M.
General is not a CES eligible. The absence, however, of such CES eligibility is of no
moment. As stated in Part III, Chapter I, Article IV, paragraph 5(c), of the Integrated
Reorganization Plan
x x x the President may, in exceptional cases, appoint any person who is not a
Career Executive Service eligible; provided that such appointee shall subsequently
take the required Career Executive Service examination and that he shall not be
promoted to a higher class until he qualified in such examination.
Evidently, the law allows appointment of those who are not CES eligible, subject to
the obtention of said eligibility, in the same manner that the appointment of
respondent who does not possess the required CES rank (CES rank level V) for the
position of Regional Director of the LTO, is permitted in a temporary capacity.
(General v. Roco, 350 SCRA 528, Jan. 29, 2001, 1st Div. [Ynares-Santiago])
the
Civil
Service
classified?
Discuss
the
Career Positions are characterized by (1) entrance based on merit and fitness to be
determined as far as practicable by competitive examination, or based on highly
technical qualifications; (2) opportunity for advancement to higher career positions;
and (3) security of tenure (Sec. 7, Chap. 2, Subtitle A, Title I, Bk. V, E.O. No. 292).
The Non-Career Service shall be characterized by (1) entrance on bases other than
of the usual tests of merit or fitness utilized for the career service; and (2) tenure
which is limited to a period specified by law, or which is coterminous with that of the
appointing authority or subject to his pleasure, or which is limited to the duration of
a particular project for which purpose employment was made (Sec. 9, Chap. 2,
Subtitle A, Title I, Bk. V, E.O. No. 292).
Held: A primarily confidential 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 freedom from intercourse without embarrassment or freedom from
misgivings or betrayals of personal trust or confidential matters of state. (De los
Santos v. Mallare, 87 Phil. 289 [1950])
Held: By this ruling, we now expressly abandon and overrule extant jurisprudence
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 take the form of suspension, demotion in rank or
salary, transfer, removal or dismissal from office and not included are cases
where the penalty imposed is suspension for not more than thirty (30) days or fine
in an amount not exceeding thirty days salary (Paredes v. Civil Service
Commission, 192 SCRA 84, 85) or when respondent is exonerated of the charges,
there is no occasion for appeal. (Mendez v. Civil Service Commission, 204 SCRA
965, 968) In other words, we overrule prior decisions holding that the Civil Service
Law does not contemplate a review of decisions exonerating officers or employees
from administrative charges enunciated in Paredes v. Civil Service Commission
(192 SCRA 84); Mendez v. Civil Service Commission (204 SCRA 965); Magpale v.
Civil Service Commission (215 SCRA 398); Navarro v. Civil Service Commission and
Export Processing Zone Authority (226 SCRA 207) and more recently Del Castillo v.
Civil Service Commission (237 SCRA 184). (CSC v. Pedro O. Dacoycoy, G.R. No.
135805, April 29, 1999, En Banc [Pardo]
Discuss the kinds of preventive suspension under the Civil Service Law.
When may a civil service employee placed under preventive suspension be
entitled to compensation?
Held:
There are two kinds of preventive suspension of civil service
employees who are charged with offenses punishable by removal or suspension: (1)
preventive suspension pending investigation (Sec. 51, Civil Service Law, EO No.
292) and (2) preventive suspension pending appeal if the penalty imposed by the
disciplining authority is suspension or dismissal and, after review, the respondent is
exonerated (Section 47, par. 4, Civil Service Law, EO No. 292).
Preventive suspension pending investigation is not a penalty. It is a measure
intended to enable the disciplining authority to investigate charges against
respondent by preventing the latter from intimidating or in any way influencing
witnesses against him. If the investigation is not finished and a decision is not
rendered within that period, the suspension will be lifted and the respondent will
automatically be reinstated. If after investigation respondent is found innocent of
the charges and is exonerated, he should be reinstated. However, no compensation
was due for the period of preventive suspension pending investigation. The Civil
Service Act of 1959 (R.A. No. 2260) providing for compensation in such a case once
the respondent was exonerated was revised in 1975 and the provision on the
payment of salaries during suspension was deleted.
But although it is held that employees who are preventively suspended
pending investigation are not entitled to the payment of their salaries even if they
are exonerated, they are entitled to compensation for the period of their suspension
pending appeal if eventually they are found innocent.
Preventive suspension pending investigation x x x is not a penalty but only a
means of enabling the disciplining authority to conduct an unhampered
investigation. On the other hand, preventive suspension pending appeal is actually
punitive although it is in effect subsequently considered illegal if respondent is
exonerated and the administrative decision finding him guilty is reversed. Hence,
he should be reinstated with full pay for the period of the suspension. (Gloria v. CA,
G.R. No. 131012, April 21, 1999, En Banc [Mendoza])
Discuss
the
power
of
Ombudsman
to
conduct
investigations, and to impose preventive suspension.
administrative
Held: Worth stressing, to resolve the present controversy, we must recall that
the authority of the Ombudsman to conduct administrative investigations is
mandated by no less than the Constitution.
R.A. 6770, the Ombudsman Law, further grants the Office of the Ombudsman
the statutory power to conduct administrative investigations. x x x
Section 21 of R.A. 6770 names the officials subject to the Ombudsmans disciplinary
authority x x x.
Petitioner is an elective local official accused of grave misconduct and
dishonesty. That the Office of the Ombudsman may conduct an administrative
investigation into the acts complained of, appears clear from the foregoing
provisions of R.A. 6770.
However, the question of whether or not the Ombudsman 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 kept in mind even as we must also take note that
the power to investigate is distinct from the power to suspend preventively an
erring public officer.
Likewise worthy of note, the power of the Office of the Ombudsman to
preventively suspend an official subject to its administrative investigation is
provided by specific provision of law. x x x
We have previously interpreted the phrase under his authority to mean that the
Ombudsman can preventively suspend all officials under investigation by his office,
regardless of the branch of government in which they are employed, excepting of
course those removable by impeachment, members of Congress and the Judiciary.
The power to preventively suspend is available not only to the Ombudsman
but also to the Deputy Ombudsman. This is the clear import of Section 24 of R.A.
6770 abovecited.
There can be no question in this case as to the power and authority of
respondent Deputy Ombudsman to issue an order of preventive suspension against
an official like the petitioner, to prevent that official from using his office to
intimidate or influence witnesses (Gloria v. CA, et al., G.R. No. 131012, April 21,
1999, p. 7, 306 SCRA 287) or to tamper with records that might be vital to the
prosecution of the case against him (Yasay, Jr. v. Desierto, et al., G.R. No. 134495,
December 28, 1998, p. 9, 300 SCRA 494). In our view, the present controversy
simply boils down to this pivotal question: Given the purpose of preventive
suspension and the circumstances of this case, did respondent Deputy Ombudsman
commit a grave abuse of discretion when he set the period of preventive suspension
at six months?
Preventive suspension under Sec. 24, R.A. 6770 x x x may be imposed when, among
other factors, the evidence of guilt is strong. The period for which an official may be
preventively suspended 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.
Given these findings, we cannot say now that there is no evidence sufficiently
strong to justify the imposition of preventive suspension against petitioner. But
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.
X x x [G]ranting that now the evidence against petitioner is already strong, even
without conceding that initially it was weak, it is clear to us that the maximum sixmonth period is excessive and definitely longer than necessary for the Ombudsman
to make its legitimate case against petitioner. We must conclude that the period
during which petitioner was already preventively suspended, has been sufficient for
the lawful purpose of preventing petitioner from hiding and destroying needed
documents, or harassing and preventing witnesses who wish to appear against him.
(Garcia v. Mojica, 314 SCRA 207, Sept. 10, 1999, 2nd Div. [Quisumbing])
Respondents may be correct in pointing out the reason for the shorter
period of preventive suspension imposable under the Local Government Code.
Political color could taint the exercise of the power to suspend local officials by the
mayor, governor, or Presidents office. In contrast the Ombudsman, considering the
constitutional origin of his Office, always ought to be insulated from the vagaries of
politics, as respondents would have us believe.
Indeed, there is nothing in the Local Government Code to indicate that it has
repealed, whether expressly or impliedly, the pertinent provisions of the
Ombudsman Act. The two statutes on the specific matter in question are not so
inconsistent, let alone irreconcilable, as to compel us to only uphold one and strike
down the other.
However, petitioner now contends that Hagad did not settle the question
of whether a local elective official may be preventively suspended even before the
issues could be joined. 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.
Preventive 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.
Petitioner also avers that the suspension order against him was issued in
violation of Section 26[2] of the Ombudsman Law x x x.
Petitioner argues that before an inquiry may be converted into a fullblown administrative investigation, the official concerned must be given 72 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 72
hours to submit a written answer to the complaint against him. This, however, does
not make 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.
Moreover, respondents state that petitioner was given 10 days to submit his
counter-affidavit to the complaint filed by respondent Tagaan. We find this 10-day
period is in keeping with Section 5[a] of the Rules of Procedure of the Office of the
Ombudsman x x x. (Garcia v. Mojica, 314 SCRA 207, Sept. 10, 1999, 2nd Div.
[Quisumbing])
Does Section 13, Republic Act No. 3019 exclude from its coverage the members of
Congress and, therefore, the Sandiganbayan erred in decreeing the preventive
suspension order against Senator Miriam Defensor-Santiago? Will the order of
suspension prescribed by Republic Act No. 3019 not encroach on the power of
Congress to discipline its own ranks under the Constitution?
The validity of Section 13, R.A. 3019, as amended treating of the suspension
pendente lite of an accused public officer may no longer be put at issue, having
been repeatedly upheld by this Court.
The provision of suspension pendente lite applies to all persons indicted upon a
valid information under the Act, whether they be appointive or elective officials; or
permanent or temporary employees, or pertaining to the career or non-career
service. (At pp. 336-337)
jurisprudence in which the Court has, more than once, upheld Sandiganbayans
authority to decree the suspension of public officials and employees indicted before
it.
Section 13 of Republic Act No. 3019 does not state that the public officer
concerned must be suspended only in the office where he is alleged to have
committed the acts with which he has been charged. Thus, it has been held that
the use of the word office would indicate that it applies to any office which the
officer charged may be holding, and not only the particular office under which he
stands accused. (Bayot v. Sandiganbayan, supra; Segovia v. Sandiganbayan, supra.)
En passant, while the imposition of suspension is not automatic or selfoperative as the validity of the information must be determined in a pre-suspension
hearing, there is no hard and fast rule as to the conduct thereof. It has been said
that
x x x No specific rules need be laid down for such pre-suspension hearing. Suffice
it to state that the accused should be given a fair and adequate opportunity to
challenge the VALIDITY OF THE CRIMINAL PROCEEDINGS against him, e.g., that he
has not been afforded the right of due preliminary investigation; that the acts for
which he stands charged do not constitute a violation of the provisions of Republic
Act 3019 or the bribery provisions of the Revised Penal Code which would warrant
his mandatory suspension from office under Section 13 of the Act; or he may
present a motion to quash the information on any of the grounds provided for in
Rule 117 of the Rules of Court x x x.
However, a challenge to the validity of the criminal proceedings on the ground that
the acts for which the accused is charged do not constitute a violation of the
provisions of Rep. Act No. 3019, or of the provisions on bribery of the Revised Penal
Code, should be treated only in the same manner as a challenge to the criminal
proceeding by way of a motion to quash on the ground provided in Paragraph (a),
Section 2 of Rule 117 of the Rules of Court, i.e., that the facts charged do not
constitute an offense. In other words, a resolution of the challenge to the validity of
the criminal proceeding, on such ground, should be limited to an inquiry whether
the facts alleged in the information, if hypothetically admitted, constitute the
elements of an offense punishable under Rep. Act 3019 or the provisions on bribery
of the Revised Penal Code. (Luciano v. Mariano, 40 SCRA 187 [1971]; People v.
Albano, 163 SCRA 511, 517-519 [1988])
The law does not require that the guilt of the accused must be established
in a pre-suspension proceeding before trial on the merits proceeds. Neither does it
contemplate a proceeding to determine (1) the strength of the evidence of
culpability against him, (2) the gravity of the offense charged, or (3) whether or not
his continuance in office could influence the witnesses or pose a threat to the safety
and integrity of the records and other evidence before the court could have a valid
basis in decreeing preventive suspension pending the trial of the case. All it secures
to the accused is adequate opportunity to challenge the validity or regularity of the
proceedings against him, such as, that he has not been afforded the right to due
preliminary investigation, that the acts imputed to him do not constitute a specific
crime warranting his mandatory suspension from office under Section 13 of Republic
Act No. 3019, or that the information is subject to quashal on any of the grounds set
out in Section 3, Rule 117, of the Revised Rules on Criminal Procedure.
x x x house may determine the rules of its proceedings, punish its Members for
disorderly behavior, and, with the concurrence of two-thirds of all its Members,
suspend or expel a Member. A penalty of suspension, when imposed, shall not
exceed sixty days. (Section 16[3], Article VI, 1987 Constitution)
Republic Act No. 3019 does not exclude from its coverage the members of Congress
and that, therefore, the Sandiganbayan did not err in thus decreeing the assailed
preventive suspension order.
Attention might be called to the fact that Criminal Case No. 16698 has been decided
by the First Division of the Sandiganbayan on 06 December 1999, acquitting herein
petitioner. The Court, nevertheless, deems it appropriate to render this decision for
future guidance on the significant issue raised by petitioner.
(Santiago v.
Sandiganbayan, 356 SCRA 636, April 18, 2001, En Banc [Vitug])
May an elective public official be validly appointed or designated to any public office
or position during his tenure?
Does the prohibition in Section 13, Article VII of the 1987 Constitution insofar as
Cabinet members, their deputies or assistants are concerned admit of the broad
exceptions made for appointive officials in general under Section 7, par. (2), Article
IX-B?
Held: The threshold question therefore is: does the prohibition in Section
13, Article VII of the 1987 Constitution insofar as Cabinet members, their deputies
or assistants are concerned admit of the broad exceptions made for appointive
officials in general under Section 7, par. (2), Article IX-B which, for easy reference is
quoted anew, thus: Unless otherwise allowed by law or by the primary functions of
his position, no appointive official shall hold any other office or employment in the
government or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporation or their subsidiaries.
Alba, Gilberto O. Teodoro, and Edgardo Tordesillas of eleven (11) each; and Lilia
Bautista and Teodoro Q. Pena of ten (10) each.
The blatant betrayal of public trust evolved into one of the serious causes
of discontent with the Marcos regime. It was therefore quite inevitable and in
consonance with the overwhelming sentiment of the people that the 1986
Constitutional Commission, convened as it was after the people successfully
unseated former President Marcos, should draft into its proposed Constitution the
provisions under consideration which are envisioned to remedy, if not correct, the
evils that flow from the holding of multiple governmental offices and employment.
Xxx
But what is indeed significant is the fact that although Section 7, Article
IX-B already contains a blanket prohibition against the holding of multiple offices or
employment in the government subsuming both elective and appointive public
officials, the Constitutional Commission should see it fit to formulate another
provision, Sec. 13, Article VII, specifically prohibiting the President, Vice-President,
members of the Cabinet, their deputies and assistants from holding any other office
or employment during their tenure, unless otherwise provided in the Constitution
itself.
Going further into Section 13, Article VII, the second sentence provides:
They shall not, during said tenure, directly or indirectly, practice any other
profession, participate in any business, or be financially interested in any contract
with, or in any franchise, or special privilege granted by the Government or any
subdivision, agency or instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries.
These sweeping, all-embracing
prohibitions imposed on the President and his official family, which prohibitions are
not similarly imposed on other public officials or employees such as the Members of
Congress, members of the civil service in general and members of the armed forces,
are proof of the intent of the 1987 Constitution to treat the President and his official
family as a class by itself and to impose upon said class stricter prohibitions.
Thus, while all other appointive officials in the civil service are allowed to
hold other office or employment in the government during their tenure when such is
allowed by law or by the primary functions of their positions, members of the
Cabinet, their deputies and assistants may do so only when expressly authorized by
the Constitution itself. In other words, Section 7, Article IX-B is meant to lay down
the general rule applicable to all elective and appointive public officials and
employees, while Section 13, Article VII is meant to be the exception applicable only
to the President, the Vice-President, Members of the Cabinet, their deputies and
assistants.
This being the case, the qualifying phrase unless otherwise provided in
this Constitution in Section 13, Article VII cannot possibly refer to the broad
exceptions provided under Section 7, Article IX-B of the 1987 Constitution. To
construe said qualifying phrase as respondents would have us to do, would render
nugatory and meaningless the manifest intent and purpose of the framers of the
Constitution to impose a stricter prohibition on the President, Vice-President,
Members of the Cabinet, their deputies and assistants with respect to holding other
offices or employment in the government during their tenure. Respondents
interpretation that Section 13 of Article VII admits of the exceptions found in Section
7, par. (2) of Article IX-B would obliterate the distinction so carefully set by the
framers of the Constitution as to when the high-ranking officials of the Executive
Branch from the President to assistant Secretary, on the one hand, and the
generality of civil servants from the rank immediately below Assistant Secretary
downwards, on the other, may hold any other office or position in the government
during their tenure.
In the same manner must Section 7, par. (2) of Article IX-B be construed vis--vis
Section 13, Article VII.
In the light of the construction given to Section 13, Article VII in relation to
Section 7, par. (2), Article IX-B of the 1987 Constitution, Executive Order No. 284
dated July 23, 1987 is unconstitutional. Ostensibly restricting the number of
positions that Cabinet members, undersecretaries or assistant secretaries may hold
in addition to their primary position to not more than two (2) positions in the
government and government corporations, Executive Order No. 284 actually allows
them to hold multiple offices or employment in direct contravention of the express
mandate of Section 13, Article VII of the 1987 Constitution prohibiting them from
doing so, unless otherwise provided in the 1987 Constitution itself.
executive department is no mean job. It is more than a full-time job, requiring full
attention, specialized knowledge, skills and expertise. If maximum benefits are to
be derived from a department heads ability and expertise, he should be allowed to
attend to his duties and responsibilities without the distraction of other
governmental offices or employment. He should be precluded from dissipating his
efforts, attention and energy among too many positions and responsibility, which
may result in haphazardness and inefficiency. Surely the advantages to be derived
from this concentration of attention, knowledge and expertise, particularly at this
stage of our national and economic development, far outweigh the benefits, if any,
that may be gained from a department head spreading himself too thin and taking
in more than what he can handle.
Indeed, the framers of our Constitution could not have intended such
absurd consequences. A Constitution, viewed as a continuously operative charter of
government, is not to be interpreted as demanding the impossible or the
impracticable; and unreasonable or absurd consequences, if possible, should be
avoided.
Mandating additional duties and functions to the President, VicePresident, Cabinet Members, their deputies or assistants which are not inconsistent
with those already prescribed by their offices or appointments by virtue of their
special knowledge, expertise and skill in their respective executive offices is a
practice long-recognized in many jurisdictions. It is a practice justified by the
demands of efficiency, policy direction, continuity and coordination among the
different offices in the Executive Branch in the discharge of its multifarious tasks 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 President and his alter egos, the Cabinet members, to have control of all the
executive departments, bureaus and offices and to ensure that the laws are
faithfully executed. Without these additional duties and functions being assigned to
the President and his official family to sit in the governing bodies or boards of
governmental agencies or instrumentalities in an ex-officio capacity as provided by
law and as required by their primary functions, they would be deprived of the
means for control and supervision, thereby resulting in an unwieldy and confused
bureaucracy.
a)
appointing authority;
b)
recommending authority;
c)
d)
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 suffices that 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 immediate supervision over the
appointee. (CSC v. Pedro O. Dacoycoy, G.R. No. 135805, April 29, 1999, En Banc
[Pardo])
What are the exemptions from the operation of the rules on nepotism?
Ans.: The following are exempted from the operation of the rules on nepotism: (a)
persons employed in a confidential capacity, (b) teachers, (c) physicians, and (d)
members of the Armed Forces of the Philippines.
Held: Petitioner contends that, per our ruling in Aguinaldo v. Santos, his reelection
has rendered the administrative case filed against him moot and academic. This is
because his reelection operates as a condonation by the electorate of the
misconduct committed by an elective official during his previous term. Petitioner
further cites the ruling of this Court in Pascual v. Hon. Provincial Board of Nueva
Ecija, citing Conant v. Brogan, that
x x x When the people have elected a man to office, it must be assumed that they
did this with knowledge of his life and character, and that they disregarded or
forgave his faults or misconduct, if he had been guilty of any. It is not for the court,
by reason of such faults or misconduct to practically overrule the will of the people.
Respondents, on the other hand, contend that while the contract in question was
signed during the previous term of petitioner, it was to commence or be effective
only on September 1998 or during his current term. It is the respondents
submission that petitioner went beyond the protective confines of jurisprudence
when he agreed to extend his act to his current term of office. Aguinaldo cannot
apply, according to respondents, because what is involved in this case is a
misconduct committed during a previous term but to be effective during the current
term.
x x x petitioner performed two acts with respect to the contract: he provided for a
suspensive period making the supply contract commence or be effective during his
succeeding or current term and during his current term of office he acceded to the
suspensive period making the contract effective during his current term by causing
the implementation of the contract.
Further, respondents point out that the contract in question was signed
just four days before the date of the 1998 election and so it could not be presumed
that when the people of Cebu City voted petitioner to office, they did so with full
knowledge of petitioners character.
We now come to the concluding inquiry. Granting that the Office of the
Ombudsman 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?
However, in the present case, respondents point out that the contract
entered into by petitioner with F.E. Zuellig was signed just 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 knowledge of this particular
aspect of his life and character.
For his part, petitioner contends that the only conclusive determining
factor as regards the peoples thinking on the matter is an election. On this point
we agree with petitioner. That the people voted for an official with knowledge of his
character is presumed, precisely to eliminate the need to determine, in factual
terms, the extent of this knowledge. Such an undertaking will obviously be
impossible. Our rulings on the matter do not distinguish the precise timing or period
when the misconduct was committed, reckoned from the date of the officials
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. Such a rule is not only founded on the theory that an
officials reelection expresses 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. We may add that sound policy
dictates it. To rule otherwise would open the floodgates to exacerbating endless
partisan contests between the reelected official and his political enemies, who may
not stop to hound the former during his new term with administrative cases for acts
alleged to have been committed during his previous term. His 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. Petitioner cannot anymore be held
administratively liable for an act done during his previous term, that is, his signing
of the contract with F.E. Zuellig.
contract with F.E. Zuellig and the payments therefor were supposed to have
commenced on September 1998, during petitioners second term.
We fail to see any difference to justify a valid distinction in the result. The
agreement between petitioner (representing Cebu City) and F.E. Zuellig was
perfected on the date the contract was signed, during petitioners prior term. At
that moment, petitioner already acceded to the terms of the contract, including
stipulations now alleged to be prejudicial to the city government. Thus, any
culpability petitioner may have in signing the contract already became extant on
the day the contract was signed. It hardly matters that the deliveries under the
contract are supposed to have been made months later.
Petitioner claims that Benipayo has no authority to remove her as Director IV of the
EID and reassign her to the Law Department. Petitioner further argues that only the
COMELEC, acting as a collegial body, can authorize such reappointment. Moreover,
petitioner maintains that a reassignment without her consent amounts to removal
from office without due process and therefore illegal.
Held: Petitioners posturing will hold water if Benipayo does not possess
any color of title to the office of Chairman of the COMELEC. We have ruled,
however, that Benipayo is the de jure COMELEC Chairman, and consequently he has
full authority to exercise all the powers of that office for so long as his ad interim
appointment remains effective. X x x. The Chairman, as the Chief Executive of the
COMELEC, is expressly empowered on his own authority to transfer or reassign
COMELEC personnel in accordance with the Civil Service Law. In the exercise of this
power, the Chairman is not required by law to secure the approval of the COMELEC
en banc.
Still, petitioner assails her reassignment, carried out during the election period, as a
prohibited act under Section 261 (h) of the Omnibus Election Code x x x.
Petitioner claims that Benipayo failed to secure the approval of the COMELEC en
banc to effect transfers or reassignments of COMELEC personnel during the election
period. Moreover, petitioner insists that the COMELEC en banc must concur to
every transfer or reassignment of COMELEC personnel during the election period.
The proviso in COMELEC Resolution No. 3300, requiring due notice and hearing
before any transfer or reassignment can be made within thirty days prior to election
day, refers only to COMELEC field personnel and not to head office personnel like
the petitioner. Under the Revised Administrative Code, the COMELEC Chairman is
the sole officer specifically vested with the power to transfer or reassign COMELEC
personnel. The COMELEC Chairman will logically exercise the authority to transfer
or reassign COMELEC personnel pursuant to COMELEC Resolution No. 3300. The
COMELEC en banc cannot arrogate unto itself this power because that will mean
amending the Revised Administrative Code, an act the COMELEC en banc cannot
legally do.
COMELEC Resolution No. 3300 does not require that every transfer or reassignment
of COMELEC personnel should carry the concurrence of the COMELEC as a collegial
body. Interpreting Resolution No. 3300 to require such concurrence will render the
resolution meaningless since the COMELEC en banc will have to approve every
personnel transfer or reassignment, making the resolution utterly useless.
Resolution No. 3300 should be interpreted for what it is, an approval to effect
transfers and reassignments of personnel, without need of securing a second
approval from the COMELEC en banc to actually implement such transfer or
reassignment.
May the appointment of a person assuming a position in the civil service under a
completed appointment be validly recalled or revoked?
Held: It has been held that upon the issuance of an appointment and the
appointees assumption of the position in the civil service, he acquires a legal right
which cannot be taken away either by revocation of the appointment or by removal
except for cause and with previous notice and hearing. Moreover, it is well-settled
that the person assuming a position in the civil service under a completed
appointment acquires a legal, not just an equitable, right to the position. This right
is protected not only by statute, but by the Constitution as well, which right cannot
be taken away by either revocation of the appointment, or by removal, unless there
is valid cause to do so, provided that there is previous notice and hearing.
Petitioner admits that his very first official act upon assuming the position of town
mayor was to issue Office Order No. 95-01 which recalled the appointments of the
private respondents. There was no previous notice, much less a hearing accorded
to the latter. Clearly, it was petitioner who acted in undue haste to remove the
private respondents without regard for the simple requirements of due process of
law. While he argues that the appointing power has the sole authority to revoke
said appointments, there is no debate that he does not have blanket authority to do
so. Neither can he question the CSCs jurisdiction to affirm or revoke the recall.
Sec. 10. An appointment issued in accordance with pertinent laws and rules shall
take effect immediately upon its issuance by the appointing authority, and if the
appointee has assumed the duties of the position, he shall be entitled to receive his
salary at once without awaiting the approval of his appointment by the Commission.
The appointment shall remain effective until disapproved by the Commission. In no
case shall an appointment take effect earlier than the date of its issuance.
Sec. 20. Notwithstanding the initial approval of an appointment, the same may be
recalled on any of the following grounds:
Is a government employee who has been ordered arrested and detained for a nonbailable offense and for which he was suspended for his inability to report for work
until the termination of his case, still required to file a formal application for leave of
absence to ensure his reinstatement upon his acquittal and thus protect his security
of tenure? Concomitantly, will his prolonged absence from office for more than one
(1) year automatically justify his being dropped from the rolls without prior notice
despite his being allegedly placed under suspension by his employer until the
termination of his case, which finally resulted in his acquittal for lack of evidence?
Held: EUSEBIA R. GALZOTE was employed as a lowly clerk in the service of the City
Government of Makati City. With her meager income she was the lone provider for
her children. But her simple life was disrupted abruptly when she was arrested
without warrant and detained for more than three (3) years for a crime she did not
commit.
Throughout her ordeal she trusted the city government that the
suspension imposed on her was only until the final disposition of her case. As she
drew near her vindication she never did expect the worst to come to her. On the
third year of her detention the city government lifted her suspension, dropped her
from the rolls without prior notice and without her knowledge, much less gave her
an opportunity to forthwith correct the omission of an application for leave of
absence belatedly laid on her.
Upon her acquittal for lack of evidence and her release from detention
she was denied reinstatement to her position. She was forced to seek recourse in
the Civil Service Commission which ordered her immediate reinstatement with back
wages from 19 October 1994, the date when she presented herself for reassumption
of duties but was turned back by the city government, up to the time of her actual
reinstatement.
The meaning of suspension until the final disposition of her case is that
should her case be dismissed she should be reinstated to her position with payment
of back wages. She did not have to apply for leave of absence since she was
already suspended by her employer until her case would be terminated. We have
done justice to the workingman in the past; today we will do no less by resolving all
doubts in favor of the humble employee in faithful obeisance to the constitutional
mandate to afford full protection to labor (Const., Art. XIII, Sec. 3, par. 1; Art. II, Sec.
18)
As may be gleaned from the pleadings of the parties, the issues are: (1)
whether private respondent Eusebia R. Galzote may be considered absent without
leave; (b) whether due process had been observed before she was dropped from the
rolls; and, (3) whether she may be deemed to have abandoned her position, hence,
not entitled to reinstatement with back salaries for not having filed a formal
application for leave. Encapsulated, the issues may be reduced to whether private
respondent may be considered absent without leave or whether she abandoned her
job as to justify being dropped from the service for not filing a formal application for
leave.
The Court believes that private respondent cannot be faulted for failing to
file prior to her detention an application for leave and obtain approval thereof. The
records clearly show that she had been advised three (3) days after her arrest, or on
9 September 1991, that petitioner City government of Makati City had placed her
under suspension until the final disposition of her criminal case. This act of
petitioner indubitably recognized private respondents predicament and thus
allowed her to forego reporting for work during the pendency of her criminal case
without the needless exercise of strict formalities. At the very least, this official
communication should be taken as an equivalent of a prior approved leave of
absence since it was her employer itself which placed her under suspension and
thus excused her from further formalities in applying for such leave. Moreover, the
arrangement bound the City Government to allow private respondent to return to
her work after the termination of her case, i.e., if acquitted of the criminal 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.
Indeed, private respondent did not have the least intention to go on AWOL from her
post as Clerk III of petitioner, for AWOL means the employee leaving or abandoning
his post without justifiable reason and without notifying his employer. In the instant
case, private respondent had a valid reason for failing to report for work as she was
detained without bail. Hence, right after her release from detention, and when
finally able to do so, she presented herself to the Municipal Personnel Officer of
petitioner City Government to report for work. Certainly, had she been told that it
was still necessary for her to file an application for leave despite the 9 September
1991 assurance from petitioner, private respondent would have lost no time in filing
such piece of document. But the situation momentarily suspending her from work
persisted: petitioner City Government did not alter the modus vivendi with private
respondent and lulled her into believing that its commitment that her suspension
was only until the termination of her case was true and reliable. Under the
circumstances private respondent was in, prudence would have dictated petitioner,
more particularly the incumbent city executive, in patria potestas, to advise her that
it was still necessary although indeed unnecessary and a useless ceremony to
file such application despite the suspension order, before depriving her of her
legitimate right to return to her position. Patria potestas in piatate debet, non in
atrocitate, consistere. Paternal power should consist or be exercised in affection,
not in atrocity.
It is clear from the records that private respondent Galzote was arrested and
detained without a warrant on 6 September 1991 for which reason she and her coaccused were subjected immediately to inquest proceedings. This fact is evident
from the instant petition itself and its attachments x x x. Hence, her ordeal in jail
began on 6 September 1991 and ended only after her acquittal, thus leaving her no
time to attend to the formality of filing a leave of absence.
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 its own 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 for leave on account of her incarceration. It is a fact that she relied
upon this order, issued barely three (3) days from the date of her arrest, and
assumed that when the criminal case would be settled she could return to work
without need of any prior act. x x x
The holding of the Civil Service Commission that private respondent was on
automatic leave of absence during the period of her detention must be sustained.
The CSC is the constitutionally mandated central personnel agency of the
Government tasked to establish a career service and adopt measures to promote
morale, efficiency, integrity, responsiveness, progressiveness and courtesy in the
civil service (Const., Art. IX-B, Sec. 3) and strengthen the merit and rewards
system, integrate all human resources development programs for all levels and
ranks, and institutionalize a management climate conducive to public
accountability. Besides, the Administrative Code of 1987 further empowers the CSC
to prescribe, amend, and enforce rules and regulations for carrying into effect the
provisions of the Civil Service Law and other pertinent laws, and for matters
concerning leaves of absence, the Code specifically vests the CSC to ordain
Sec. 60. Leave of absence. Officers and employees in the Civil Service 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 Service Commission in the interest of the
service.
leave of absence. Significantly, these provisions have been amended so that Sec.
20 of the Civil Service Rules is now Sec. 52 of Rule XVI, on Leave of Absence, of
Resolution No. 91-1631 dated 27 December 1991 as amended by CSC MC No. 41, s.
1998, and Sec. 35 is now Sec. 63 as amended by CSC MC Nos. 41, s. 1998 and 14,
s. 1999.
As a general rule, Secs. 20 and 52, as well as Secs. 35 and 63, require an
approved leave of absence to avoid being an AWOL. However, these provisions
cannot be interpreted as exclusive and referring only to one mode of securing the
approval of a leave of absence which would require an employee to apply for it,
formalities and all, before exceeding thirty (30) days of absence in order to avoid
from being dropped from the rolls. There are, after all, other means of seeking and
granting an approved leave of absence, one of which is the CSC recognized rule of
automatic leave of absence under specified circumstances. x x x
As properly noted, the CSC was only interpreting its own rules on leave of
absence and not a statutory provision (As a matter of fact, Sec. 60 of the
Administrative Code does not provide for any rule on leave of absence other than
that civil servants are entitled to leave of absence) in coming up with this uniform
rule. Undoubtedly, the CSC like 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
Under RA 6656 (An Act to Protect the Security of Tenure of Civil Service
Officers and Employees in the Implementation of Government Reorganization) and
RA 7160 (The Local Government Code of 1991), civil servants who are found
illegally dismissed or retrenched are entitled to full pay for the period of their
separation.
complete abandonment of duties of such continuance that the law will infer a
relinquishment. Abandonment of duties is a voluntary act; it springs from and is
accompanied by deliberation and freedom of choice. There are, therefore, two
essential elements of abandonment: first, an intention to abandon and second, an
overt or external act by which the intention is carried into effect.
Generally speaking, a person holding a public office may abandon such office by
non-user or acquiescence. Non-user refers to a neglect to use a right or privilege or
to exercise an office. However, non-performance of the duties of an office does not
constitute abandonment where such non-performance results from temporary
disability or from involuntary failure to perform. Abandonment may also result from
an acquiescence by the officer in his wrongful removal or discharge, for instance,
after a summary removal, an unreasonable delay by an officer illegally removed in
taking steps to vindicate his rights may constitute an abandonment of the office.
Where, while desiring and intending to hold the office, and with no willful desire or
intention to abandon 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, 351 SCRA 659, 665-668, Feb. 15, 2001, En Banc
[Gonzaga-Reyes])
Held: In the law of public officers, there is a settled distinction between term and
tenure. [T]he 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 the term during which the incumbent
actually holds the office. The term of office is not affected by the hold-over. The
tenure may be shorter than the term for reasons within or beyond the power of the
incumbent. (Thelma P. Gaminde v. COA, G.R. No. 140335, Dec. 13, 2000, En Banc
[Pardo])
Discuss the operation of the rotational plan insofar as the term of office of the
Chairman and Members of the Constitutional Commissions is concerned.
Held: In Republic v. Imperial, we said that the operation of the rotational plan
requires two conditions, both indispensable to its workability: (1) that the terms of
the first three (3) Commissioners should start on a common date, and (2) that any
vacancy due to death, resignation or disability before the expiration of the term
should only be filled only for the unexpired balance of the term.
Applying the foregoing conditions x x x, we rule that the appropriate starting point
of the terms of office of the first appointees to the Constitutional Commissions
under the 1987 Constitution must be on February 2, 1987, the date of the adoption
of the 1987 Constitution. In case of a belated appointment or qualification, the
interval between the start of the term and the actual qualification of the appointee
must be counted against the latter. (Thelma P. Gaminde v. COA, G.R. No. 140335,
Dec. 13, 2000, En Banc [Pardo])
Held: 1. The concept of holdover when applied to a public officer implies that the
office has a fixed term and the incumbent is holding onto the succeeding term. It is
usually provided by law that officers elected or appointed for a fixed term shall
remain in office not only for that term but until their successors have been elected
and qualified. Where this provision is found, the office does not become vacant
upon the expiration of the term if there is no successor elected and qualified to
assume it, but the present incumbent will carry over until his successor is elected
and qualified, even though it be beyond the term fixed by law.
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 authorized 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 of
government functions. (Lecaroz v. Sandiganbayan, 305 SCRA 397, March 25, 1999,
2nd Div. [Bellosillo])
2. 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 the office. 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. Otherwise stated, the purpose is to
prevent a hiatus in the government pending the time when the successor may be
chosen and inducted into office. (Galarosa v. Valencia, 227 SCRA 728, Nov. 11,
1993, En Banc [Davide, Jr.])
Held: 1. It is the act of giving up or the act of an officer by which he declines his
office and renounces the further right to use it. It is an expression of the incumbent
in some form, express or implied, of the intention to surrender, renounce, and
relinquish the office and the acceptance by competent and lawful authority. To
constitute a complete and operative resignation from public office, there must be:
(a) an intention to relinquish a part of the term; (b) an act of relinquishment; and (c)
an acceptance by the proper authority. The last one is required by reason of Article
238 of the Revised Penal Code. (Sangguniang Bayan of San Andres, Catanduanes v.
CA, 284 SCRA 276, Jan. 16, 1998)
proceeding.
Public policy considerations dictate against allowing the same
individual to perform inconsistent and incompatible duties. The incompatibility
contemplated is not the mere physical impossibility of one persons performing the
duties of the two offices due to a lack of time or the inability to be in two places at
the same moment, but that which 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.
Held: The creation and abolition of public offices is primarily a legislative function.
It is acknowledged that Congress may abolish any office it creates without impairing
the officers right to continue in the position held and that such power may be
exercised for various reasons, such as the lack of funds or in the interest of
economy. However, in order for the abolition to be valid, it must be made in good
faith, not for political or personal reasons, or in order to circumvent 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. Where one office is abolished and
replaced with another office vested with similar functions, the abolition is a legal
nullity. Thus, in U.P. Board of Regents v. Rasul we said:
It is true that a valid and bona fide abolition of an office denies to the incumbent the
right to security of tenure (De la Llana v. Alba, 112 SCRA 294 [1982]). However, in
this case, the renaming and restructuring of the PGH and its component units
cannot give rise to a valid and bona fide abolition of the position of PGH Director.
This is because where the abolished office and the offices created in its place have
similar functions, the abolition lacks good faith (Jose L. Guerrero v. Hon. Antonio V.
Arizabal, G.R. No. 81928, June 4, 1990, 186 SCRA 108 [1990]). We hereby apply the
principle enunciated in Cezar Z. Dario v. Hon. Salvador M. Mison (176 SCRA 84
[1989]) that abolition which merely changes the nomenclature of positions is invalid
and does not result in the removal of the incumbent.
The above notwithstanding, and assuming that the abolition of the position of the
PGH Director and the creation of a UP-PGH Medical Center Director are valid, the
removal of the incumbent is still not justified for the reason that the duties and
functions of the two positions are basically the same.
This was also our ruling in Guerrero v. Arizabal, wherein we declared that the
substantial identity in the functions between the two offices was indicia of bad faith
in the removal of petitioner pursuant to a reorganization. (Alexis C. Canonizado, et
al. v. Hon. Alexander P. Aguirre, et al., G.R. No. 133132, Jan. 25, 2000, En Banc
[Gonzaga-Reyes])
2. While the Presidents power to reorganize can not be denied, this does
not mean however that the reorganization itself is properly made in accordance with
law. Well-settled is the rule that reorganization 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:
What are the circumstances evidencing bad faith in the removal of employees as a
result of reorganization and which may give rise to a claim for reinstatement or
reappointment)?
Held: Where there is a significant increase in the number of positions in the new
staffing pattern of the department or agency concerned;
Where the removal violates the order of separation provided in Section 3 hereof.
(Sec. 2, R.A. No. 6656; Larin v. Executive Secretary, 280 SCRA 713, Oct. 16, 1997)