43 JAVIER vs.
REYES without assuming office or taking his oath
FACTS: Petitioner allegedly
was the duly appointed Chief of Police of
Malolos, Bulacan by the then Mayor
Victorino B. Aldaba, which appointment
was confirmed and approved by the
Municipal Council of the said municipality
on the same date as per Resolution No.
210, Series of 1967. The following day,
petitioner took his oath of office and
thereafter assumed and discharged the
rights, prerogatives and duties of the
office.Pending approval and attestation
of his appointment by the Civil Service
Commission, respondent, who had then
assumed the office of Municipal Mayor,
recalled petitioner's appointment from
the Civil Service Commission in her letter
of said date. Not satisfied with her letter
of recall, respondent summarily,
arbitrarily and illegally ousted and
relieved petitioner as Chief of Police and
at the same time, designated Police Lt.
Romualdo F. Clements, a non-eligible,
as Officer-in-Charge of the Police
Department. On May 2, 1968, the Civil
Service Commission attested and
approved the appointment of petitioner
as such Chief of Police. The mayor, on
the other hand, quickly installed Bayani
Bernardo as Chief of Police of Malolos.
For lack of the mandatory requirement of
confirmation by the municipal council
under Sec. 1 of Rep. Act No. 1551, the
Civil Service Commission pronounced
the appointment of the replacement null
and void and directed respondent "that
steps be taken immediately to install Mr.
Javier as Chief of Police of that
Municipality (Malolos)". Notwithstanding
the aforementioned ruling and directive,
respondent neglected and refused to
reinstate petitioner to tile position of Chief
of Police of Malolos which act is
specifically enjoined upon her as
Municipal Mayor and public officer, in
Sec. 19, Article IV of Rep. Act 2260
otherwise known as the Civil Service Act
of 1959.
ISSUE: Between two appointees, the first
complying with all the legal requirements
to hold office, and the second one made
by the incumbent appointing power but
of office, which one prevails?
RULING: The first appointee which
complies with all the legal requisites for
appointment prevails. Bernardo never
assumed office or took his oath. It cannot
be said, then, that he had accepted his
appointment. Such an appointment
being ineffective, we hold that the
petitioner's appointment prevails.
Acceptance is indispensable to complete
an appointment. The fact that Bernardo's
appointment was confirmed by the Civil
Service Commission does not complete
it since confirmation or attestation by the
Commission, although an essential part
of the appointing process, serves merely
to assure the eligibility of the appointee.
Furthermore, Bernardo never contested
the petitioner's right to office. In the case
at bar, Bayani Bernardo never undertook
steps that would have convinced us that
he was interested in, or had accepted,
the appointment. He did, of course,
intervene in the mandamus suit, but it
was a belated effort to assert his alleged
rights. It is not indicative of an interested
party. It was too little and too late.
On the other hand, we cannot say the
same thing as far as the petitioner is
concerned. The records show that he
was appointed on November 7, 1967,
and the following day, November 8,
1967, he took his oath of office and
discharged the duties appurtenant
thereto until January 13, 1968, when the
succeeding mayor, the herein
respondent Purificacion Reyes, recalled
his appointment and appointed another.
Thereupon, the petitioner went to the
Civil Service Commission to ask for
reinstatement. Finally, he brought suit for
mandamus. These acts amounted to
acceptance and gave rise to a vested
right to the office in his favor.
Respondent Mayor is ORDERED to
REINSTATE the petitioner to office of
Chief of Police, Malolos, Bulacan, or its
equivalent, or to any position equivalent
in rank and pay, subject to the
requirements of age and fitness, and to
PAY him back salaries equivalent to five
(5) years without qualification or
deduction.
44.MARY CONCEPCION BAUTISTA,
petitioner, vs.SENATOR JOVITO R.
SALONGA, COMMISSION ON
APPOINTMENTS, COMMITTEE ON
JUSTICE, JUDICIAL AND BAR
COUNCIL AND HUMAN RIGHTS AND
HESIQUIO R. MALLILLIN,
respondents.
FACTS:
The President appointed Mary
Concepcion Bautista as the Chairman of
the Commission on Human Rights
pursuant to the second sentence in
Section 16, Art. VII, without the
confirmation of the CoA because they
are among the officers of government
"whom he (the President) may be
authorized by law to appoint." Section
2(c), Executive Order No. 163,
authorizes the President to appoint the
Chairman and Members of the
Commission on Human Rights. CoA
disapproved Bautista's alleged ad interim
appointment as Chairperson of the CHR
in view of her refusal to submit to the
jurisdiction of the Commission on
Appointments.
ISSUES:
1. Whether or not Bautista's appointment
is subject to CoA's confirmation.
2. Whether or not Bautista's appointment
is an ad interim appointment.
RULING:
1. No. The position of Chairman of CHR
is not among the positions mentioned in
the first sentence of Sec. 16 Art 7 of the
Constitution, which provides that the
appointments which are to be made with
the confirmation of CoA. Rather, it is
within the authority of President, vested
upon her by Constitution (2nd sentence
of Sec. 16 Art 7), that she appoint
executive officials without confirmation of
CoA.
The Commission on Appointments, by
the actual exercise of its constitutionally
delimited power to review presidential
appointments, cannot create power to
confirm appointments that the
Constitution has reserved to the
President alone.
2. Under the Constitutional design, ad
interim appointments do not apply to
appointments solely for the President to
make. Ad interim appointments, by their
very nature under the 1987 Constitution,
extend only to appointments where the
review of the Commission on
Appointments is needed. That is why ad
interim appointments are to remain valid
until disapproval by the Commission on
Appointments or until the next
adjournment of Congress; but
appointments that are for the President
solely to make, that is, without the
participation of the Commission on
Appointments, cannot be ad interim
appointments.
45 Elpidio Valencia vs. Macario
Peralta, Jr.,
Facts: Valencia was designated Acting
Chairman of the board of directors of the
National Waterworks and Sewerage
Authority by the then Pres. Garcia.
Allegedly upon information that the then
Pres. Garcia had extended him as an ad
interim appointment, petitioner took an
oath of office to the position of
Chairman Ad Interim of said Authority of
which the Commission on Appointments
confirmed and specified the expiration
date of his term of office. However, Pres.
Macapagal appointed respondent as ad
interim to the same position. Thereafter,
the petitioner ceased to attend any board
meeting and eventually instituted the
present petition.
Issue: Whether or not the appointment of
Valencia is valid.
Ruling: No. The designation of petitioner
as Acting Chairman of the NAWASA
Board of Directors is of revocable and
temporary character which could not
ripen into a permanent appointment,
even if it was subsequently confirmed by
the Commission on Appointments,
because confirmation presupposes a
valid nomination or recess appointment,
of which there is no trace. Neither does
the fact that petitioner Valencia
subscribed an oath of office as ad
interim appointee to the position help his
case, since the oath clearly does not
correspond to the temporary designation
as Acting Chairman that was accorded
him. There is on record only one written
designation of petitioner, a mere Acting
Chairman, that was not a permanent
appointment, was revocable at any time
by the Chief Executive, and actually
revoked by the subsequent designation
of respondent Peralta.
46 RAMON V. MITRA, petitioner-
appellee, vs.ABELARDO SUBIDO, in
his capacity as Acting Commissioner
of Civil Service, ET AL., respondents-
appellants.
Facts:
Effective July 1, 1962, Mayor Antonio J.
Villegas, of the City of Manila, appointed
the petitioner as Senior Technology
Assistant in his office, with compensation
at the rate of P8,400 per annum. This
appointment was forwarded to the Civil
Service Commission for approval which
was approved subject to the usual
physical and medical examination.
The appointee Ramon V. Mitra
qualified for and assumed the position of
Senior Technical Assistant in the Office
of the Mayor of Manila. Since then, he
discharged the duties of the position and
was paid the corresponding salary for his
services, until January 15, 1963.
On January 11, 1963, the Acting
Commissioner of Civil Service, Abelardo
Subido, wrote to the City Mayor informing
him that the appointment extended to the
petitioner was in violation of the
certification requirement prescribed by
the Civil Service Law and was
incomplete, because the approval
thereof by Epi Rey Pangramuyen, Chief,
Personnel Transactions Division, was
"ultra vires," the latter having acted
beyond the scope of his delegated
authority. In the same communication,
the acting Commissioner of Civil Service
ordered the termination of the services of
Ramon V. Mitra, upon receipt of said
letter by the City Mayor, who was
"requested to notify accordingly the
employee affected and to advise" the
Civil Service Commission of the date of
said notice.
Consequently, Ramon V. Mitra filed
with the Court of First Instance of Manila
praying for the issuance of a writ of
preliminary mandatory injunction to
restrain the Acting Commisisoner of Civil
Service from enforcing his order
terminating his services as Senior
Technical Assistant in the Office of the
Mayor, and to order the City Auditor and
City Treasurer to authorize and pay,
respectively, his salary corresponding to
the period from January 16 to 31, 1963,
and those which may thereafter become
due and payable. The court a quo then
rendered the decision holding that the
appointment of petitioner Ramon V. Mitra
as Senior Technical Assistant in the
Office of the Mayor at P8,400.00 per
annum effective July 1, 1962, bears,
among others, the valid approval of the
Civil Service Commission and is
complete and that the certification
requirement of the law is not necessary
in the appointment.
Issue:
Whether or not the appointment of
petitioner Ramon Mitra as Senior
Technical Assistant is valid and
complete.
Held:
Yes, the appointment of petitioner
Ramon Mitra is valid and complete.
It is apparent from the provisions of the
Civil Service Law that prior certification of
eligibles is required only if a position is
not filled by promotion, by transfer of
persons already in the government
service, and by reinstatement or
reemployment of persons separated
from the service through reduction in
force. In the case at bar, it was shown
during the trial that the appointee was
formerly employed in the Department of
Foreign Affairs and the Central Bank of
the Philippines. Obviously, therefore, the
appointment was a reinstatement, and
there was no necessity of obtaining prior
certification of eligibles from the Civil
Service Commission.
Moreover, it may be stated as a general
rule that an appointment once made is
irrevocable and not subject to
reconsideration. The rule is qualified,
however, where the assent, confirmation
or approval of some other officer or body
is needed before the appointment may
issue and be deemed complete.
Necessarily, this calls for a determination
in any given situation whether or not all
the acts necessary to make an
appointment complete have been
performed. Where the power of
appointment is absolute, and the
appointee has been determined upon, no
further consent or approval is necessary,
and the formal evidence of the
appointment, the commission, may issue
at once. Where, however, the assent or
confirmation of some other officer or
body is required, the commission can
issue or the appointment be complete
only when such assent or confirmation is
obtained.
Under our Civil Service Law and
the rules promulgated thereunder, an
appointment to a position in the civil
service must be submitted to the
Commissioner of Civil Service for
approval, i.e., for determination whether
the proposed appointee is qualified to
hold the position, and whether or not the
pertinent rules had been followed in
making the appointment. We have said
in this connection that the appointment
made by an officer duly empowered to
make it, is not final and complete until
after the Commissioner of Civil Service
has certified that such appointment may
be made The acts of the head of
Department or Office making the
appointment and the Commissioner of
Civil Service acting together, though not
concurrently, but consecutively, are
necessary to make an appointment
complete. And there should be no
question that for an appointee in the
classified position in the civil service to
be entitled to the protection of the law
against unjust removal, his appointment
must receive the approval of the
Commissioner of Civil Service.
Applying the rules above-
explained, it was held that the
appointment of the appellee had become
complete when the appellant
Commissioner of Civil Service issued his
order terminating the services of the
former. The appointment in question was
extended to the appellee on July 1, 1962,
by virtue of which the appointee
assumed the duties of his position. Under
the same appointment as approved by
the Chief, Personnel Transactions
Division in the name of the
Commissioner of Civil Service, the City
Auditor and City Treasurer allowed and
paid, respectively, the salary of the
appellee for the period from July 1, 1962
to January 15, 1963, a period of six and
a half months. In the case of
appointments made by local officials and
attested to by Provincial Treasurers and
City Treasurers under Section 20 of the
Civil Service Law, the appointments are
deemed to have been properly made if
within a period of one hundred eighty
days the Commissioner of Civil Service
fails to make any correction or revision
thereof. After the lapse of the period
therein allowed, corrections of mistakes
may no longer be had, considering that
after the lapse of that time the
probationary period of an employee
under his appointment also ends, and his
appointment automatically becomes
permanent.
A removal from office takes place
after title to the office has become vested
in the appointee, whereas revocation of
an appointment is had, if it is to be
successful, before the appointment is
complete. The moment the appointee
assumes a position in the civil service
under a completed appointment, he
acquires a legal, not merely equitable
right, which is protected not only by
statute, but also by the Constitution, and
it cannot be taken away from him, either
by revocation of the appointment or by
removal, except for cause, and with
previous notice and hearing, consistent
with Section 4 of Article XII of our
fundamental law, and with the
constitutional requirement of due
process. And when, as in this case, the
appointee has been regularly performing
the duties of his office and been paid the
corresponding salary for more than six
months already under a known
appointment that was never questioned
by either the City Treasurer or the City
Auditor of Manila before granting the
salary of the appellee, the act of the
Acting Commissioner of Civil Service in
summarily terminating the services of the
appointee may not be said to be a
reconsideration of the appointment, but
is in fact a removal from office. Like a
judgment that is not void upon its face,
the appointment in question is not "the
serpent that may be attacked or slain at
sight." The power to remove from office
cannot lightly be inferred from the duty of
the Commissioner of Civil Service to
make investigations and take corrective
measures when unsatisfactory situations
are found to exist. Under the
circumstances of this case, that duty
should be exercised, if it is to be exercise
at all, with the end in view of ratifying the
appointment in question should he
believe that the act of his subordinate in
approving the appointment is not
sufficient, considering that the appellee
has been found qualified for the position
to which he was appointed.
47 .R. No. 92403. April 22, 1992.*
VICTOR A. AQUINO,
petitioner, vs. CIVIL SERVICE
COMMISSION and LEONARDA D. DE
LA PAZ, respondents.
Facts: Petitioner was designated as
Officer-in-charge of the Division Supply
Office by the DECS Regional Director in
view of the retirement of the Supply
Officer I.
Two years thereafter, the Division
Superintendent of City Schools issued a
promotional appointment to private
respondent as Supply Officer I in the
DECS division. The Civil Service
Regional Office IV approved her
appointment as permanent.
Petitioner filed a protest with DECS
Secretary questioning the qualification
and competence of private respondent
for the position of Supply Officer I.
Finding the petitioner better qualified
than the respondent, the DECS
Secretary in a decision sustained the
protest and revoked the appointment of
private respondent, and petitioner was
issued a permanent appointment as
Supply Officer by the DECS Regional
Director. Said appointment was
approved by the Civil Service Regional
Office IV.
In an appeal to the CSC, public
respondent CSC found the appeal
meritorious, thus revoking the
appointment of petitioner and restoring
private respondent to her position under
her previously approved appointment.
In the case at bar, petitioner assailing the
revocation of his appointment, invokes
the rulings in previous jurisprudence that
the CSC has no authority to revoke an
appointment on the ground that another
person is more qualified for a particular
position for that would have constituted
an encroachment on the discretion
vested solely in the appointing authority.
Issue: Whether or not appointment of the
respondent can be revoked.
Held: No. It is well settled that once an
appointment is issued and the moment
the appointee assumes position, he
acquires a legal, not merely equitable
right, which is protected not only by
statute, but also by the Constitution, and
cannot be taken away from him either by
revocation of the appointment, or by
removal, except for cause and with
previous notice and hearing.
Said appointment cannot also be
revoked on the ground that the protestant
is more qualified than the first appointee.
The protest must be for a cause or
predicated on those grounds provided for
under Sect 19 (6) of the Civil Service Law
(PD 807), namely:
1) that the appointee is not qualified;
2) that the appointee is not the next in
rank; and
3) in case of appointment transfer,
reinstatement, or by original
appointment, that the protestant is not
satisfied with the written special reasons
or reason given by the appointing
authority.
Note: “for a cause” means “for reasons
which the law and sound public policy
recognized as sufficient warrant for
removal, that is, legal cause, and not
merely causes which the appointing
power in the exercise of discretion may
deem sufficient. It is implied that officers
may not be removed at the mere will of
those vested with the power of removal,
or without any cause. Moreover, the
cause must relate to and affect the
administration of office and must be
restricted to something of a substantial
nature directly affecting the rights and
interests of the public.”
48 sarmiento III vs Mison
FACTS:
Mison was appointed as the
Commissioner of the Bureau of Customs
and Carague as the Secretary of the
Department of Budget, without the
confirmation of the Commission on
Appointments. Sarmiento assailed the
appointments as unconstitutional by
reason of its not having been confirmed
by CoA.
ISSUE:
Whether or not the appointment is valid.
RULING:
Yes. The President acted within her
constitutional authority and power in
appointing Salvador Mison, without
submitting his nomination to the CoA for
confirmation. He is thus entitled to
exercise the full authority and functions
of the office and to receive all the salaries
and emoluments pertaining thereto.
Under Sec 16 Art. VII of the 1987
Constitution, there are 4 groups of
officers whom the President shall
appoint:
1st, appointment of executive
departments and bureaus heads,
ambassadors, other public ministers,
consuls, officers of the armed forces from
the rank of colonel or naval captain, and
other officers with the consent and
confirmation of the CoA.
2nd, all other Government officers whose
appointments are not otherwise provided
by law;
3rd those whom the President may be
authorized by the law to appoint;
4th, low-ranking officers whose
appointments the Congress may by law
vest in the President alone.
First group of officers is clearly appointed
with the consent of the Commission on
Appointments. Appointments of such
officers are initiated by nomination and, if
the nomination is confirmed by the
Commission on Appointments, the
President appoints.
2nd, 3rd and 4th group of officers are the
present bone of contention. By following
the accepted rule in constitutional and
statutory construction that an express
enumeration of subjects excludes others
not enumerated, it would follow that only
those appointments to positions
expressly stated in the first group require
the consent (confirmation) of the
Commission on Appointments.
It is evident that the position of
Commissioner of the Bureau of Customs
(a bureau head) is not one of those within
the first group of appointments where the
consent of the Commission on
Appointments is required. The 1987
Constitution deliberately excluded the
position of "heads of bureaus" from
appointments that need the consent
(confirmation) of the Commission on
Appointments.
49 Aytona vs Castillo
Facts: Dominador Aytona was one of
those appointed by outgoing president
Carlos Garcia during the last day of his
term. Aytona was appointed as the ad
interim governor of the Central Bank.
When the next president, Diosdado
Macapagal took his office, he issued
Order No. 2 which recalled Aytona’s
position and at the same time he
appointed Andres Castillo as the new
governor of the Central Bank. Aytona
then filed a quo warranto proceeding
claiming that he is qualified to remain as
the Central Bank governor and that he
was validly appointed by the former
president. Macapagal averred that the
ex-president’s appointments were
scandalous, irregular, hurriedly done,
contrary to law and the spirit of which,
and it was an attempt to subvert the
incoming presidency or administration.
Issue: Whether or not Aytona should
remain in his post.
Ruling : No. Had the appointment of
Aytona been done in good faith then he
would have the right to continue office.
Here, even though Aytona is qualified to
remain in his post as he is competent
enough, his appointment can
nevertheless be revoked by the
president. Garcia’s appointments are
hurried maneuvers to subvert the
upcoming administration and is set to
obstruct the policies of the next
president. As a general rule, once a
person is qualified his appointment
should not be revoked but in here it may
be since his appointment was grounded
on bad faith, immorality and impropriety.
In public service, it is not only legality that
is considered but also justice, fairness
and righteousness.