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PANALIGAN, Celina Marie T.

16-212 | 2A

Administrative Law / Law on Public Officers

Atty. Noel Ostrea

June 6, 2018

MODES OF TERMINATION

Abolition of office

De Leon explains the abolition of an office as a mode of termination as involving “the intention
to do away with it wholly and permanently, as the word ‘abolish’ denotes. After the abolition,
there is in law no occupant; there can be no tenure to a non-existent office.”1 The power to
abolish a public office rests with Congress and, when delegated, to the President and heads
of local government units. The non-existence of the office after it is abolished is what makes it
non-violative of the security of tenure of the person holding such office prior to its abolition. In
the words of De Leon, “the right itself disappeared with the abolished office as an accessory
follows the principal. No dismissal or separation arises because the position itself ceases to
exist.”2

The case of Castillo v. Pajo3 enunciates that the power to create an office includes the
concomitant power to abolish it. In 1951, Castillo was appointed as a correspondence clerk in
the office of the Provincial Fiscal of Bohol by the Governor of the same province. In 1954, the
Provincial Board enacted two resolutions abolishing her position, based on the Provincial
Treasurer’s determination that her position was no longer necessary.

Castillo assailed the validity of the resolutions for in her opinion it was tantamount to unlawful
separation from service due to her civil service eligibility and status. However, the Court, in
siding with the Provincial Board, rationalized that “the power to establish an office includes the
authority to abolish it—unless there are constitutional or statutory rules expressly or impliedly
providing otherwise”4.

While protection is afforded to civil service employees against removal save for causes
provided by law, such does not apply in this case since there “has been no removal of
petitioner but an abolition of her position, which was within the power of the provincial board,
in the same way that Congress has the power to abolish offices created by it or its authority.”5

Resignation

The act of resignation connotes a formal renunciation or relinquishment of a public office. It


may either be done express or impliedly, but in both instances, the intention to surrender,

1 HECTOR S. DE LEON & HECTOR M. DE LEON, JR., THE LAW ON PUBLIC OFFICERS AND ELECTION LAW 495
(2011).
2 Id.
3 Castillo v. Pajo, 103 Phil. 1515 (1958)

4 Id.
5 Id.
renounce or relinquish a holder’s right to the office must be properly established.6 Furthermore,
the tender of resignation, which is required to be signed by the party tendering it, must be
accepted by competent and lawful authority. 7

The two forms of resignation differentiate between ‘compulsory’ resignation, where “by law a
resignation is required to be made in any particular form, and that form must be substantially
complied with”8 , and that wherein no form or particular mode is prescribed. The second form
of resignation must be through a method that indicates such intent, whether it be made orally,
impliedly by conduct, or in writing 9.

The case of Triste v. Macaraig10 illustrates that a courtesy resignation, despite being involuntary
in nature, is still a valid form of resignation after being accepted by competent authority, such
as the Department Secretary who is considered an alter ego of the President.

Subsequent to the People Power Revolution, Former President Corazon Aquino’s Proclamation
No. 1 required all appointive public officials to submit their courtesy resignations as the first
step in the new government’s reorganization. One such appointive official was Federico Triste
Jr., Assistant Regional Director in the COA who was later on appointed Acting Assistant
Minister of Comptrollership of the Ministry of Public Works and Highways. He submitted two
courtesy resignations to the former Public Works Minister and the newly-appointed Minister,
respectively.

In his request for reinstatement, the Court found no merit in his case as it found that not only
was a successor designated to fill in his vacated position, but that his courtesy resignation was
duly accepted by Secretary Mercado. His application for retirement benefits also belied his
claim that his resignation was tainted with vitiated consent. 11

Abandonment

Abandonment of an office signifies a clear intent to abandon an office; it is “the voluntary


relinquishment of an office by the holder of all right, title or claim thereto without valid or
justifiable reason with the intention of not reclaiming it, or terminating his possession and
control thereof.”12 Therefore the most important thing to consider in abandonment as a mode
of termination is the holder’s intent to abandon such office. It must be total and absolute, under
such circumstances as clearly to indicate an absolute relinquishment thereof.13

6 DE LEON & DE LEON JR., supra note 1, at 359.


7 DE LEON & DE LEON JR., supra note 6, at 360.
8 DE LEON & DE LEON JR., supra note 1, at 359.

9 Id.
10 Triste v. Macaraig, 175 SCRA 284 (1989)
11 Id.

12 DE LEON & DE LEON JR., supra note 8, at 375.


13 DE LEON & DE LEON JR., supra note 12, at 376.
The two elements to establish abandonment of office include the intention to abandon the
office and an overt or external act which carries the intention into effect14.

The importance of the abandonment being voluntary was exhibited in Canonizado v. Aguirre.15
The petitioners, one of them being Canonizado, were removed as Commissioners of the
NAPOLCOM by virtue of RA 8551. However, the section which provided for their removal was
later on declared unconstitutional by the Court for violating petitioners’ right to security of
tenure. Petitioners sought their reinstatement due to this pronouncement.

During the pendency of the respondent’s Motion for Reconsideration of the Court’s declaration
of unconstitutionality, Canonizado was appointed Inspector General of the Internal Affairs
Service of the PNP. He accepted the appointment and soon after took his oath. According to
the respondents, his act of accepting an appointment for a different position was deemed an
abandonment of Canonizado’s claim for reinstatement to the NAPOLCOM.

In ruling for Canonizado and the petitioners, the Court held that there was no voluntary
relinquishment of the Commissioner position on Canonizado’s part, having been removed by
virtue of an unconstitutional law. Said the Court, “Canonizado was compelled to leave his
position as Commissioner, not by an erroneous decision, but by an unconstitutional provision
of law.” 16 His subsequent appointment as Inspector General in no way affected the
involuntariness of his removal from his previous position; “Canonizado was impelled to accept
this subsequent position by a desire to continue serving the country, in whatever capacity.
Surely, 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 of which are sufficient to justify
Canonizado’s acceptance of the position of Inspector General.”17

Removal, including recall

Removal or recall of a holder of an office from his position “entails the ouster of an incumbent
before the expiration of his term. It implies that the office exists after the ouster.” 18 What
differentiates removal from abolition as a mode of termination is that in the former, the public
office continues to exist after the holder is removed while the exact opposite is true for the
latter.

Removal from office may either be expressed or implied. Implied removal can come through
different forms. One such instance is when another officer is appointed, the former effectively
replaced; another is when a transfer of the holder to another office is effected, which can only
be done permanently provided the employee is first removed from the position held, and then
appointed to another position19.

14 Id.

15 Canonizado v. Aguirre, 351 SCRA 659 (2001).


16 Id.
17 Id.

18 DE LEON & DE LEON JR., supra note 13, at 388.


19 DE LEON & DE LEON JR., supra note 18, at 389.
Yet another form of implied removal is demotion, entailing “movement from one position to
another involving the issuance of an appointment with diminution in duties, responsibilities,
status or rank which may or may not involve reduction in salary”20. A reassignment, when done
in good faith and in the interest of public service is valid and allowed while there is deemed a
constructive removal or dismissal, a form of ‘quitting’ on the part of the holder “because
continued employment is rendered impossible, unreasonable or unlikely…it exists when an act
of clear discrimination, insensibility or disdain by an employer becomes unbearable to the
employee, leaving him with no option but to forego his continued employment.”21

In Fernando v. Sto. Tomas, the Court differentiated between demotion and reassignment22.
Albeit being differing kinds of implied or constructive removal, a demotion may be deemed
illegal as being violative of the right to security of tenure and due process while a reassignment,
when done in the interest of service, may be effected even without consent to the individuals
sought to be reassigned as they are neither given new appointments nor new positions.
Reassignment merely involves “the movement of employees from one organisational unit to
another in the same department or agency which does not involve a reduction in rank, status,
or salary and does not require the issuance of an appointment.”23

This was how the Court ratiocinated in ruling for the validity of Memorandum Order No. 4
issued by Labor Secretary Confesor, which reassigned several med-arbiters in the NCR who
were at the time discharging duties as hearing officers. The Court also found that the
reassignment of petitioners was made “in the interest of the service and in order to expedite
the resolution of inter-union and intra-union cases.”24

20 DE LEON & DE LEON JR., supra note 19, at 390.


21 DE LEON & DE LEON JR., supra note 20, at 391.
22 Fernando v. Sto. Tomas, 234 SCRA 546 (1994).

23 Id.
24 Id.