Chapter 3

ACQUISITION OF RIGHT OR TITLE TO PUBLIC OFFICE

C. Appointments in the Civil Service
Qualification in an appropriate examination
Approval/recall of appointments by Civil Service Commission
Appointment is complete: appointing officer and Commission, acting together
and consecutively
Appointment to commission is required to be submitted to it:
1) To determine whether the proposed appointee is qualified to hold the
position
2) To determine whether or not the rules pertinent to the process of
appointment are followed
(1) Appointments required to be approved

Approve, with exceptions, all appointments (original or promotional)

XPN: presidential appointments, AFP members, police, firemen, jail guards
Disapprove those who do not possess the appropriate eligibility or required
qualifications

(2) Right of appointee to a hearing in case of disapproval

(X) when disapproval is based on applicable provisions of law and on
appointees qualifications
- remedy: MR with commission
(3) Effectivity of appointment until disapproval
Immediate
If appointee assumes his duties at once, he is entitled to receive his salary,
without awaiting the approval of his appointment by the commission
Appointment ineffective if not submitted within 30 days from issuance (date
on the face of the instrument)
Without approval of commission:
= no title to position permanently vested in appointee
= appointee cannot invoke security of tenure
(4) Criterion to be employed
Only the civil service eligibility of the appointee
Commission cannot appoint someone more qualified
No power of appointment except over its own personnel nor does it have
authority to review appointments made by other offices
(5) Extent of commissions authority
Limited to reviewing appointments
(x) make appointments

(x) direct appointing authority to change employment status or to appoint

someone else
But can order reinstatement of an illegally dismissed employee

(6) Attestation of appointment

If appointee is eligible, commission must attest to appointment
(7) Keeping of records of all appointments
Of officers and employees in the civil service
(8) Recall of appointment
By commission
Once appointment is accepted by appointee, it cannot be withdrawn or
revoked
(9) Grounds for recall
Sec. 20, Rule VI
1. Non-compliance w/ procedures/criteria provided in the agencys Merit
Promotion Plan
2. Failure to pass through the agencys selection/promotion board
3. Violation of the existing collective agreement between management and
employees relative to promotion
4. Violation of other existing civil service law, rules and regulations
5.
Appointment through certification
Issued to a person who has been selected from a list of qualified persons
certified by the Commission from an appropriate register of eligible + who
meets all the other requirements of the position
All such persons must serve a probationary period of 6 months
= unsatisfactory conduct or want of capacity
All shall undergo a thorough character investigation
Prohibited to appoint a non eligible to any position in the CSC where there is a
civil service eligible actually available and ready to accept the appointment
D. Vacancy
Meaning
Office empty
w/o a legally qualified incumbent appointed or elected to it with a lawful right
to exercise its powers and perform its duties

Ex: occupied by one who is not a de jure officer, by a mere usurper, by one
who is holding over
not a physical vacancy
appointing power may proceed to fill the office

Appointment to a non vacant position

null and void ab initio
not vacant even if the EE is illegally dismissed, transferred or demoted
Classification of vacancy
1. original
office is created and no one has been appointed to fill it
2. constructive
incumbent has no legal right or claim to continue in office and can be legally
replaced by another functionary
3. accidental
incumbent died, resigned, or has been removed, no one in esse discharging
the duties of the office
4. absolute
incumbents term is over, not held over, no successor
Causes of vacancy
1. death
2. permanent disability
3. removal from office
4. resignation
if acceptance is needed to make it effective, vacancy does not exist until
resignation is accepted by the proper authority
5. abandonment
6. expiration of term
7. conviction of a crime
8. impeachment conviction
9. acceptance of incompatible office
10.creation of a new office
11.reaching the age limit
12.recall
Filling of anticipated vacancies
Appointing power cannot forestall the rights and prerogatives of their successors by
appointing such to offices expiring after its power to appoint has expired
E. Qualifying to office
Qualification (act) to an office
Appointee required by law to do some act by which he shall signify his acceptance
of the office and his undertaking to execute the trust confided in him
Generally consists of taking, subscribing, filing of an official oath, or in some cases,
of giving an official bond

OATH

Outward pledge
One formally calls upon God to witness to the truth of what he says or to
the fact that he sincerely intends to do what he says
Oaths:
o Qualifying requirement for a public office, prerequisite to the full
investiture with the office
o Not indispensable, mere incident to the office, no part of the office
itself
o Statutes requiring taking of an oath are merely directory
o Officers authorized to administer oaths:
- Notaries public
- Members of judiciary
- Clerks of court
- Secretary of House, departments
- Bureau directors
- Registrars of deeds
- Provincial governors
- Lieutenant governors
- City mayors
- Officer whose appointment is vested in the president
o
o

Officers authorized to administer oaths shall charge no fee

XPN: notary public
are not obliged to administer oaths or execute certificates
save in matters of official business
XPN: notary public, municipal mayor, clerks of court

1. Under the constitution

2. Under the Admin. Code
-all public officers and employees of government including armed
forces shall uphold and defend the constitution.
- copies of oath shall be deposited with the CSC and the National
Archives
3. Under the Local Government Code
o Oath or affirmation of office of all elective and appointive local
officials and employees shall be preserved in the individual
personnel records file under the custody of the personal office,
division, or section of the LGU concerned

BOND
- Public officials required to furnish bonds are usually those who have
custody of public funds
- Purpose: protect public funds
- Nature:
1. Indemnity bond (not penal or forfeiture)
2. Obligation binding sureties to make good the officers default
3. Primary contractual obligation between the injured party and the
officer and surety
4. Merely collateral security for the performance of the officers duties

Necessity:
1. Mere incident of office
2. Time prescribed to give bond
o Merely directory, not mandatory
o Failure to give bond does not mean appointee forfeits his office
XPN: bond a condition precedent to the right to the office (applies
to oaths as well)-- mandatory

Effect of failure or neglect to qualify

deemed a refusal of office
XPN: sickness, accident, other fortuitous events that excuse delay on the part
of a person qualify
De facto officer, not de jure
F. De Facto Officers
The de facto doctrine
- Person admitted by proper authority and sworn into office is deemed to be
rightfully in such office until ousted by judicial declaration in a proper
proceeding, or until his admission thereto is declared void
- Defect in the title
Basis and reason for this doctrine
- Prevent chaos that would result from multiple and repetitious suits
challenging every action taken by every official whose claim to office
could be open to question
- Seeks to protect the public by insuring the orderly functioning of the
government despite technical defects in title to office
De facto officer defined (p. 101)
De jure officer
One who has the lawful right to the office in all respects, but who has been ousted
from it or who has never actually taken possession of it
When officer de jure is also officer de facto, the lawful title and possession are
united
Requirements:
1. Possess legal qualifications for the office
2. Lawfully chosen to such office
3. Qualified himself to perform the duties of such office acc. To the mode
prescribed by the constitution or law
DE JURE OFFICER
Rests on right
Lawful right or title to the office

DE FACTO OFFICER
Rests on reputation
Has possession and performs the duties
under color of right or authority without
being technically qualified in all points

Cannot be
proceeding

removed

in

direct

of law to act
May be ousted in a direct proceeding
against him

Usurper/intruder defined
- One who takes possession of the office and undertakes to act officially
without any color of right or authority, actual or apparent. Not an officer at
all for any purpose
USURPER
No lawful title nor color of right to the
office
Public knows he is a usurper
Ousted through any proceeding
Acts are absolutely null and void

DE FACTO OFFICER
Has a color of right or title to the office
Public does not know nor out to know his
lack of title or authority
Ousted through direct proceeding
Acts done by a de facto officer in the
exercise of his authority are valid

Elements of de facto officer ship

1. Existence of de jure office
2. Color of right/general acquiescence by the public
3. Actual physical possession of the office in good faith
Office created under an unconstitutional statute
1. First view: officer created by such a statute is not even an officer de facto
2. Contrary view: incumbent, for the sake of public policy and protection of
private rights, will be recognized as officer de facto until the
unconstitutionality of the act has been judicially determined
Legal effects of acts of de facto officers
AS TO THIRD PERSONS AND THE PUBLIC
- Just as valid as de jure officers insofar as the public or third persons
interested therein are concerned until his title to office is adjudged
insufficient
- Such officers authority may not be collaterally attacked or inquired into
by third persons affected
- Third persons have a right to assume that officials apparently qualified
and in office are legally such
AS TO THE OFFICERS THEMSELVES
- Acts are void
- A party suing or defending in his own right as a public officer must show
that he is an officer de jure, it is not sufficient that he is an officer de facto
(to discourage seizure/trafficking of public office)
- De facto officer bound to know that he has no authority
PROCEEDINGS

Quo warranto proceeding (direct proceeding to determine the very

question of validity of his acts)

Right to compensation of a de facto officer

GR: de facto officer cannot maintain an action to recover salary
XPN: for services he rendered in good faith (XPN: de facto officer not appointed but
merely designated)
o Equity
o Disbursing officers have a right to rely on the title
Liabilities of a de facto officer
1. For official acts as a de jure officer
2. All penalties imposed by law for usurping or unlawfully holding office
3. Crimes committed in his official capacity
4. Return emoluments to de jure officer

Lecture notes:
Scenario 2: you were given an appointment, youre supposed to be eligible, but you
turned out not to have been. Duty is no longer ministerial. Commission will
disapprove the appointment.
Scenario 3: Commission will recall
Mr. X given an appointment in the career service. Mr. X reported for duty, took his
oath, and has since been receiving his salary. His papers are being prepared for
transmission. Can it still be disapproved or revoked? Explain.
- No, if X met all the eligibility requirements and the process of appointment
was followed. However, it must be stressed that if Mr. X does not satisfy
the minimum eligibility requirements, then CSC can disapprove the
appointment. Moreover, the CSC has the power of recall.
All appointments must be approved by CSC.
Obiaska ruling: when do you transmit the appointment papers?