Chapter 3 DE FACTO OFFICERS
Tan: A candidate proclaimed in an election irregularly
RATIONALE
The members of the public dealing with the government are not supposed to
verify the credentials of every functionary exercising official functions. They
have the right to presume that he is the officer he assumes to be.
It is not only the acts of the lawful officer that are regarded as valid and binding.
Insofar as third persons are concerned, legal effect is also accorded to certain
acts of a person whose title is presumptively legitimate, that is, who reasonably
appears to be the officer he assumes to be, although he really does not have
valid title to the position he is holding. (de facto officer)
DEFINITION
State vs. Caroll: An officer de facto is one whose acts, though not those of a
lawful officer, the law, upon principles of policy and justice, will hold valid so
far as they involve the interests of the public and thirds persons, where the
duties of the office were exercised:
(1) Without a known appointment or election, but under such circumstances
of reputation or acquiescence as were calculated to induce people, without
inquiry, to submit to or invoke his action, supposing him to be the officer
he assumes to be
(2) Under color of a known and valid appointment but have failed to conform
to some condition, precedent or requirement, as to take an oath, file a bond
or the like
(3) Under color of a known appointment or election, void, because the officer
was not eligible, or because there was a want of power in the electing or
appointing body, or by reason of some defect or irregularity in its exercise,
such ineligibility, want of power, or defect being unknown to the public
(4) Under color of an election or an appointment by or pursuant to a public,
unconstitutional law before the same is adjudged to such
DISTINCTIONS
DE JURE DE FACTO
lawful title to the office but has not actually possesses the office although
been able to take possession of it or he has an imperfect or only colorable
has been ousted title thereto
de facto officer may ripen into intruder may grow into an officer de
officer de jure as where he repairs his facto if his assumption of office is
omission and takes the required oath acquiesced in, thereby acquiring color
or post the needed bond of title to the office
in possession of the office and
validly appointed to a position discharging its duties under the
color of authority
REQUISITES OF DE FACTO OFFICERSHIP
(1) Existence of a De jure office
If the person occupying a legitimate office was invalidly appointed or
elected thereto, or is not possessed of the necessary eligibility, he is a de
facto officer. But if what is defective is not the title to the office but the
office itself, then the possessor thereof is not a de facto officer.
Ex: The law creating the statutory office of the Executive Vice-President
as successor to the President would be unconstitutional because
presidential succession is vested in the VP under Art VII of the
Constitution. The office itself is void. Even if the holder had been validly
elected thereto, he cannot be considered a de facto officer for lac of an
office de jure.
If what is declared unconsti is only the manner of filing and not the office
itself, the officer would still be a de facto (law creating a court of justice
and providing for the election of the judge. Office can be created but
election of judge violates Sec 9 Art VIII.
(2) Color of title
Color of title is derived from reputation or acquiescence or from an
invalid appointment or election.
Tayko vs. Capistrano: a de facto judge is one who exercises the duties
of a judicial office under color of an appointment or election. When a
judge in good faith remains in office after his title has ended, he is a de
facto officer. Applying to the facts, his terms of office may have ended
but his successor has not been appointed, and as good faith is presumed,
he must be regarded as holding over in good faith.
Rodriguez vs.
held will be a de facto officer before the nullification of the elction as
such election will give him color of a title to the office from which he is
ultimately ousted. He took oath of office and immediately entered into
the performance of the duties of the position.
As long as the defect in the appointment or election is unknown to the
public, the occupant of the office will have color of title and can be
considered a de facto officer. He must also be holding over in good faith.
US vs. Abalos: It is a universally professed doctrine that the acts of judges,
considered such by common error, whether there be color of title or not
(in this case there was), are valid and effective in favor of public welfare.
This, according to the phrase of one law, is the most humane course, one
which can injure no one, and rings no discredit upon the administration
of justice. On the other hand, much harm would result to the prejudice of
the public, wholly free from blame and unchargeable with any
responsibility, if by the right of the law, such acts must be declared null,
solely upon the ground that the judges were, according to the intent of the
legislator, to cease to be such after June 16.
Regala v CFI of Bulacan: a judge who had denied a motion of
reconsideration before his receipt of the official notification of the
disapproval of his appointment by the COA as reported in the newspapers,
was a de facto officer. All his official acts as judge de facto are valid for
all legal purposes and for all kinds of cases like those of a judge de jure.
(3) Physical possession of the office in good faith
The office must be actually held by the de facto officer if his acts are to
affect the public and third persons. Any person who professes to act
officially but does not occupy a public office cannot be considered an
officer de facto and his acts are absolutely void.
Lino Luna v Rodriguez: It is an essential element to the validity of the
acts of a de facto judge that he is actually acting under some color of right.
If he has ceased to be judge by actually accepting and entering into some
other office and has actually entered upon the performance of the duties
of the other office, it is difficult to understand how he can still be
considered as actually occupying and performing the duties of the office
which he had abandoned and vacated. And abandonment a vacation of
office is inconsistent and repugnant to the idea of actually continuting to
perform the duties of such office.
Garchitorena vs. Crescini: The judge who filed the decision cannot be
considered a judge de jure for the reason that another judge was actually
acting in his place and stead and had been for nearly a month prior to the
promulgation of the decision in question on April 27, 1917. Neither can
he be considered a judge de facto for the reason that there was a de jure
judge actually discharging the functions of the office in question. There
cannot be a de facto judge when there is a de jure judge in the actual
performance of the duties of the office.
Bejarasco, Jr v. Buenconsejo: Decisions promulgated after the judge
who penned the same had been appointed to and qualified in another
office are null and void. In single courts like the RTCs and MTCs, a
decision may no longer be promulgated after the ponente has vacated his
office. Indeed, a judgment to be valid must have been personally and
directly prepared by the judge and duly signed by him.
Solis v. CA: A decision rendered by a judge was, 1 day after he ceased to
be so with the abolition of his court, promulgated under another judge.
The SC declared the judgment void, “for it is now firmly established in
our jurisprudence that a decision is void if promulgated after the judge
who rendered it had permanently ceased to be a judge of the court where
he sat in judgment.
EFFECTS OF ACTS OF DE FACTO OFFICERS
The lawful acts of an officer de facto, so far as the rights of third persons are
concerned, are, if done within the scope and by the apparent authority of the
office, considered as valid and binding as if he were the officer legally elected
and qualified for the office and in full possession thereof.
Funa vs. Agra: Agra did not validly hold the position of Acting Secretary of
Justice concurrently with his holding of the position of Acting Solicitor
General. Accordingly, he was not considered a de jure officer for the entire
period of his tenure as the Acting Secretary of Justice. A de jure officer is one
who is deemed, in all respects, legally appointed and qualified and whose term
of office has not expired. That notwithstanding, Agra was a de facto officer
during his tenure as Acting Secretary of Justice. The Court holds that all
official actions of Agra as a de facto Acting Secretary of Justice, assuming that
was his later designation, were presumed valid, binding and effective as if he
was the officer legally appointed and qualified for the office.
CSC vs Unda: Where there is no de jure officer, a de facto officer who, in
good faith, has possession of the office and discharges the duties pertaining
thereto, is legally entitled to the emoluments of that office, and may in an
appropriate action recover the salary, fees, and other compensations attached
to the office.
However, the de facto officer cannot benefit from his own status because public
policy demands that unlawful assumption of public office be discouraged. The
individual is bound to verify his title to an office. Thus, as a general rule, the
de facto officer cannot claim a salary and other compensation for services
rendered by him as such. If he collected such salary, he may in fact be required
to pay it back to the de jure officer upon recognition of the latter’s title.
Monroy vs. CA: The rightful incumbent of a public office may recover from
an offer de facto the salary received by the latter during the time of his wrongful
tenure even though he entered into the office in good faith and under the color
of the title. A de facto officer, not having good title, takes the salaries at his risk
and must therefore account to the de jure officer for whatever amount of salary
he received during the period of his wrongful retention of public office.
There is authority to the effect that a de facto officer may retain salaries
collected by him for services rendered in good faith where there is no de jure
officer claiming the office.
Cantillo vs Arriveta: A provisional appointee, being at best a de facto officer
because he did not posses the necessary qualifications, was, upon his
reinstatement following the dropping of criminal charges against him, not
entitled to payment of back salaries corresponding to the period of his
preventive suspension.
Menzon vs Petilla: The petitioner for a long period of time, exercised the duties
attached to the Office of the Vice-Governor. He was acclaimed as such by the
people of Leyte. Upon the principle of public policy on which the de facto
doctrine is based and basic considerations of justice, it would be highly
iniquitous to now deny him the salary due him for the services he actually
rendered as the acting Vice-Governor of the province of Leyte.
Mendoza vs. Allas: The respondent in a quo warranto proceeding cannot be
held personally liable for the claimant’s or petitioner’s back salaries and
benefits where the former was merely appointed to the position by the President
in the exercise of his power as Chief Executive.
The de facto officer is subject to reimbursement. He also has the same
liabilities imposed on the de jure officer in the discharge of official duties, in
addition to whatever special damages may be due from him because of his
unlawful assumption of office.
CHALLENGE TO A DE FACTO OFFICER
The incumbency of the de facto officer may not be challenged collaterally or in
an action to which he is not a party but in a direct proceeding where title to the
office will be the principal issue such as quo warranto (or “by what authority”),
which is an action that may be brought against “a person who usurps, intrudes
into or unlawfully holds or exercises a public office,” either by the Solicitor
General in the name of the Republic or by any person claiming title to the office.
Tayko vs. Capistrano: The rightful authority of a judge, in the full exercise of
his public judicial functions, cannot be questioned by any merely private
spector, nor by any other, excepting in the form especially provided by law. The
title of de facto officer cannot be indirectly questioned in a proceeding to obtain
a writ of prohibition to prevent him from doing an official act nor in a suit to
enjoin the collection of a judgment rendered by him. Having at least colorable
title to the office, his title can be determined only in a quo warranto proceeding
or information in the nature of a quo warranto at suit of the sovereign.
Rule 66, Rules of Court (Tecson v. COMELEC): An action that may be
brought against “a person who usurps, intrudes into/ unlawfully holds/
exercises a public office,” either by the Solicitor General in the name of the
Republic or by any person claiming title to the office
Section 1. A quo warranto petition is an action by the government “for the
usurpation of a public office, position/ franchise (which) may be commenced
by a verified petition brought in the name of the Rep of the Philippines against:
(a) a person who usurps, intrudes into, or unlawfully holds/ exercises
a public office, position/ franchise;
(b) a public officer who does or suffers an act which, by the
provision of law, constitutes a ground for the forfeiture of his office;
(c) an association which acts as a corporation within the PH without
being legally incorporated or without lawful authority so to act.
Section 5. It is also allowed to be commenced “in his own name” by a person
“claiming to be entitled to a public office/ position usurped/ unlawfully held/
exercised by another.”
Section 11. Nothing contained in this Rule shall be construed to authorize an
action against a public officer/ employee for his ouster from office unless the
same be commenced within 1 year after the cause of such ouster, or the right of
the petitioner to hold such office/ position arose, nor to authorize an action for
damages in accordance with the provisions of the next preceding section unless
the same be commenced within 1 year after the entry of the judgment
establishing the petitioner’s right to the office in question.
Cuyegkeng vs. Cruz: One who does not claim to be entitled to the office
allegedly usurped or unlawfully held or exercised by another cannot question
his title thereto by quo warranto. In the case at bar, none has been appointed
and none of them may, therefore, be placed in said office, regardless of the
alleged flaws in respondent's title. They merely assert a right to be appointed to
said office. Considering, however, that there are 7 petitioners and that only 1
office is involved, none of them can, or does, give an assurance that he will be
the one appointed by the President, should said office be declared vacant.
Ong vs. Topacio: SC dismissed the petition filed by one who was not seeking
the seat of the respondent as an Associate Justice in the Sandiganbayan. It is
said that the petition, which essentially called for the nullification of the
respondent’s appointment to said court, constituted a collateral attack on a
public officer’s title. The Court stressed that such a challenge may be done only
directly by way of quo warranto proceedings, which may be filed only by the
SolGen/ a public prosecutor, as the case may be, or by any person claiming to
be entitled to the public office/ position usurped/ unlawfully held/ exercised by
another. For a quo warranto petition to be successful, the private person suing
must show a clear right to the contested office. In fact, not even a mere
preferential right to be appointed thereto can lend a modicum of legal ground
to proceed with the action.
Republic vs. Sereno: Respondent failed to fulfill the JBC requirement of filing
the complete SALNs, hence her integrity remains unproven. The Republic
posits that the JBC’s ostensible nomination of respondent does not extinguish
the fact that the latter failed to comply with the SALN requirement as the filing
thereof remains to be a constitutional and statutory requirement. Failure to file
the SALN is clearly violation of the law. The offense is penal in character and
is clear breach of the ethical standards set for public officials and employees. It
disregards the requirement of transparency as deterrent to graft and corruption.
Such failure to file and to submit the SALNs to the JBC, is clear violation not
only of the JBC rules, but also of the law and the Constitution. The discordance
between respondent's non-filing and non-submission of the SALNs and her
claimed integrity as person is too patent to ignore. For lack of proven integrity,
respondent ought to have been disqualified by the JBC and ought to have been
excluded from the list of nominees transmitted to the President. As the
qualification of proven integrity goes into the barest standards set forth under
the Constitution to qualify as Member of the Court, the subsequent nomination
and appointment to the position will not qualify an otherwise excluded
candidate. In other words, the inclusion of respondent in the shortlist of
nominees submitted to the President cannot override the minimum
Constitutional qualifications.
Members of the Judiciary are bound by the qualifications of honesty, probity,
competence, and integrity. These requirements are announced and published to
notify not only the applicants but the public as well. Changes to such set of
requirements, as agreed upon by the JBC En Banc through proper deliberation,
such as in this case when the JBC decided to allow substantial compliance with
the SALN submission requirement, should also be announced and published for
the same purpose of apprising the candidates and the public of such changes.
At any rate, if candidate is appointed despite being unable to comply with the
requirements of the JBC and despite the lack of the aforementioned
qualifications at the time of application, the appointment may be the subject of
quo warranto provided it is filed within one year from the appointment or
discovery of the defect. Only the Solicitor General may institute the quo
warranto petition.
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CHAPTER 4: The Civil Service
CONSTITUTION: Civil Service which “embraces all branches, subdivisions,
instrumentalities, and agencies of the Government, including government-
owned and controlled corporations with original charters.”
Juco vs. NLRC: The phrase “with original charters” means that:
GOCCs – organized under special law - Civil Service
– organized under Corporation Code - Labor Code
The members of the Civil Service are regulated under
-Article IX-B of the Constitution
-Civil Service Decree
-Administrative Code of 1987
-Pertinent principles under the law of public officers.
THE CIVIL SERVICE COMMISSION
It is the government’s central personnel agency designated to set standards
and to enforce the laws and rules governing the selection, utilization, training
and discipline of civil servants. It is the central agency mandated to prescribe,
amend, and enforce rules and regulations for carrying into effect the provisions
of the Civil Service Law and other pertinent laws.
The Commission is composed of:
- Chairman
-2 Commissioners
REQUIREMENTS:
• Natural-born citizen of the Philippines
• At least 35 years of age
• With proven capacity for public administration
• Must not have been candidates for any elective position in the elections
immediately preceding their appointment
Additionally, they are:
• Appointed by the President with the consent of the Commission on
Appointments for a term of seven years without reappointment
• May be removed only by impeachment
IT HAS QUASI-LEGISLATIVE POWER
Trade and Investment Dev Corp vs. CSC: Petitioner (GOCC), invoking the
privisions of a law which it claimed provided for its exemption from the rules
of the CSC on compensation, position classification and qualification
standards, challenged the applicability of said rules to its appointments. It was
stated that all GOCCs must follow the civil service laws on appointments
regardless of the statutory exemption from said civil service rules.
Peralta vs CA: Regional offices are empowered to enforce Civil Service laws,
rules, policies, and standards on the personnel management or personnel
actions of national and local government agencies within their jurisdiction and
to enforce the same laws rules, policies, and standards, with respect to the
conduct of public officers and employees including the power to issue
opinions and rulings regarding personnel management.
Concept of Central Personal Agency – all-encompassing, understood to be
sufficiently broad as to include the authority to promulgate and enforce
policies on personnel actions, to classify positions, and to exercise all powers
and functions inherent in and incidental to human resources management.
OBJECTIVES
• Establish a career service and adopt measures to promote morale,
efficiency, integrity, responsiveness, progressiveness and courtesy in the
civil service
• Shall serve the public with the highest degree of responsibility, integrity,
loyalty, efficiency, and remain accountable to the people
• Strengthen the merit and rewards system, integrate all human resources
and development programs for all levels and ranks, and institutionalize a
management climate conducive to public accountability
• Ensure that personnel functions shall be decentralized, delegating the
corresponding authority to the departments, offices and agencies where
such functions can be effectively performed
Merit system - appointments in the Civil service are made only through
merit and fitness to be determined by competitive examiners.
Meram vs Edralin citing Samson vs CA: The general purpose of the Civil
Service Law is to insure and promote the general mandate requiring
appointments only according to the merits (merit system instead of spoils
system) and fitness, and to provide within the public service a progressive
system of public administration to insure the maintenance of an honest and
efficient, progressive and courteous civil service in the PH. Civil service
laws are not enacted to penalize anyone but are designated to eradicate the
system of appointment to public office based on political considerations and
to eliminate as far as practicable the element of partisanship, and personal
favoritism in making appointments. These laws intend to establish a merit
system of fitness and efficiency as the basis of appointment; to secure more
competent employees, and thereby promote better government.
SCOPE
• All branches, subdivisions, and instrumentalities of the government
including GOCCs created by special law or given legislative charters and
its subsidiaries and employees
National Service Corp. vs. NLRC: GOCCs included in the civil service are
only those created by special law, or given legislative charters, and not those
established under or on the basis of the provisions of the Corporation Code.
Civil Service does not include GOCCs which are organized as subsidiaries of
GOCCs under the general corporation law.
RA 10149: government agency- any of the various units of the govt including
a department, bureau, office, instrumentality or GOCC, or a local government
or a distinct unit therein.
Torres vs. de Leon: CSC has jurisdiction over the PNRC (under Corporation
Code) because the issue is the enforcement of labor laws and penal statutes
and in this matter, the PNRC can be treated as a GOCC and is within the ambit
of Rule 1, Sec 1 of the IRR of RA 6713. The sui generis character of the PNRC
requires its controversies to be approached on a case-to-case basis.
Some GOCCswithin the civil service:
-water districts (NAWASA, National Irrigation Administration)
-Philippine Tourism Agency
-PAGCOR
-PCOC
-PSSC
-Boy Scouts of the Philippines
-National Transmission Corporation
GOCCs not under the civil service law since they don’t have original charters:
- Clark Development Corporation (E0 80 by Pres FVR)
- PNOC Shipping and Transport Corporation
- LUSTE-VECO
- National Service Commission
Charitable institutions, although performing public functions, are, not being
government agencies, are not covered by the Civil Service.
Conditions on the creation of GOCCs through special charters:
1. Must be established for the common good
2. Must meet the test for economic viability
Republic vs. City of Parañaque: Philippine Reclamation Authority is not a
GOCC because it is neither a stock nor a non-stock corporation. It cannot be
considered as a stock corporation because although it has a capital stock divided
into no par value shares as provided in Sec. 7 PD 1084, it is not authorized to
distribute dividends, surplus allotments or profits to stockholders. It is not a
non-stock corporation because it does not have members which a non-stock
corporation must have. Moreover, it was not organized for any of the purposes
mentioned in Sec 88 of the Corporation Code. Specifically, it was created to
manage all government reclamation projects. It passed the first criteria only.
Government instrumentalities with corporate powers and performing
governmental or public functions need not meet the test of economic viability
because they perform essential public services for the common good. Economic
viability is waived as the government may subsidize their operations.
Hidalgo vs. Republic: WON the employees of the AFP Comissary and
Exchange Services (Letter of Instruction 31 of Marcos) were under the CSC.
Since it cannot be denied that they are government employees, the proper body
with jurisdiction is the CSC. Such cannot be negated by the failure of
respondents to follow appropriate civil service rules in the hiring, appointment,
discipline, and dismissal of petitioners. Neither can it be denied by the fact that
respondents chose to enroll petitioners in the SSS instead of the GSIS; these
cannot be used to deprive the CSC of its jurisdiction as these are not used to
determine the status of the position of an employee.
Ang vs. PNB: Respondent was dismissed for offenses committed prior to
PNB’s privatization but only discovered once it became a private corporation.
When PNB was privatized, Ang’s employment with it as a GOCC ceased. PNB
already computed the retirement and other benefits to which she was entitled
as a result of the cessation of her employment. Since she had no pending
administrative case on the day she ceased to be PNB employee, and had been
cleared of any accountability, all those benefits already accrued to her on the
date of her termination.
LRTA vs Pili: NLRC has jurisdiction over the petitioner with respect to money
claims filed against it by the employees of a private corporation who obviously
were not even employees of the LRTA. The NLRC acquired jurisdiction over
LRTA not because of the employer-employee relationship of the respondents
and the LRTA (there is none) but because the LRTA expressly assumed
monetary obligations of Metro to its employees including particularly to update
the Metro Inc. Employees Retirement fund and to ensure that it fully covers all
the retirement benefits payable to the employees of Metro. LRTA’s contractual
commitments with Metro and its employees arose out of its business relations
with Metro which is private in nature which was not changed by the subsequent
acquisition of by LRTA of full ownership of Metro and take-over of its business
operations at LRT.
*NLRC has no jurisdiction over illegal dismissal cases
• The Civil Service and labor laws and procedures, whenever applicable,
shall be followed in the resolution of complaints, grievances and cases
involving government employees, and the Bureau of Labor relations has
original and exclusive authority to act on all inter-union and intra-union
conflicts
NTC vs. COA: The existence of an employee-employer relationship in the
public sector is primarily determined by special laws, civil service law, rules
and regulations. While the four-fold test and other standards set forth in the
labor code may aid in ascertaining the relationship between government and its
purported employees, they cannot be overriding factors over the conditions and
requirement for public employment as provided for by civil service laws, rules,
and regulations. The Labor Code recognizes that terms and conditions of
employment of all government employees, including all GOCCs shall be
governed by civil service laws, rules, and regulations.
POSITIONS IN THE CIVIL SERVICE
1. Career Service
• Characteristics
1. Entrance based on merit and fitness based on practical
examinations
2. Opportunity for advancement to higher career positions
3. Security of tenure
• Includes:
1. Open Career positions for appointment to which prior qualification
in an appropriate examination is required
2. Closed Career positions which are scientific or highly technical in
nature
3. Positions in the Career Executive Service
4. Career officers, other than those in the Career Executive Service
who are appointed by the President such as the Foreign Service
Officers in the Department of Foreign Affairs
5. Commissioned officers and enlisted men of the Armed Forces
which shall maintain a separate merit system
6. Personnel of GOCCs, whether performing governmental or
proprietary functions, who do not fall under the noncareer service
7. Permanent laborers, whether skilled, semi-skilled, or unskilled
SECURITY OF TENURE
Ignacio vs. CSC: Security of tenure pertains only to rank and not to the office
or to the position to which they may be appointed. A CESO may be transferred
or reassigned from one position to another without losing his rank which
follows him wherever he is transferred or reassigned. In fact, a CESO suffers
no diminution of salary even if assigned to a CES position with lower salary
grade as the compensation is according to CES rank and not on the basis of
the position or office occupied.
The mere fact that a position belongs to the Career Service does not
automatically confer security of tenure even if he does not possess the required
qualifications. It depends on the nature of his appointment, which in turn
depends on his eligibility or lack of it.
A person without the requisite qualifications cannot be appointed in the first
place. EXCEPTION: appointed in an acting capacity in the absence of
appropriate eligible. Not permanent even if it may be so designated.
CES Examination - entitles the examinee to conferment of CES eligibility and
the inclusion of name in the eligible
Process:
1. Qualification upon conferment of eligibility, and compliance with
requirements
2. President makes appointment upon recommendation by the Board
Seneres vs. Sabido: Two elements for a position to be considered CES:
1. Position is among enumerated in Book V, Title I, A, Ch. 2, Sec 7(3)
of the Admin Code or a position of equal rank as those enumerated
and identified by CESB to be of equal rank
2. Holder is a presidential appointee
Two requisites must concur to attain security of tenure:
1. CES eligibility
2. Appointment to the appropriate CES rank
Cuevas vs Bacal / General vs. Roco: distinguishing feature of the CES is
mobility and flexibility in the assignment of personnel, the better to cope with
the exigencies of public service. Security of tenure in the CES is thus acquired
with respect to rank and not to the position. The guaranty of security of tenure
to members of the CES does not extend to the particular positions to which they
may be appointed (only applicable to 1st and 2nd level employees) but to the
rank to which they are appointed by the president.
Ong vs. Office of the President: An appointee without the requisite CES
eligibility cannot hold the position in a permanent capacity. Temporary
appointments are made if only to prevent hiatus in the government’s rendition
of public service. However, a temporary appointee can be removed even
without cause at a moment’s notice. As to those with eligibilities, their rights
to security of tenure pertain to ranks but not to the positions to which they were
appointed.
2. Non-Career Service
• Characteristics
1. Entrance on bases other than those of usual tests of merit and fitness
2. Tenure which is limited to a period specified by law, or which is co-
terminous with that of the appointing authority or subject to his
pleasure, or which is limited to the
3. Duration of a particular project for which purpose of employment
was made
• Includes:
1. Elective officials and their personal or confidential staff
2. Department Heads and other officials of Cabinet rank who hold
positions at the pleasure of the President and their personal or
confidential staff(s)
3. Chairman and members of commissions and boards with fixed
terms of office and their personal or confidential staff
4. Contractual personnel or those whose employment in the
government is in accordance with a special contract to undertake a
specific work or job
5. Emergency and seasonal personnel
CSC vs. Pillila Water District: Under RA 9268 in relation to Sec. 14 of the
Omnibus Rules Implementing Book V of the Admin Code, the coterminous
appointment of the General Manager of a water district is based on the majority
vote of the BOD and whose continuity in the service is based on the latter’s
trust and confidence or co-existent with its tenure.
ELIGIBILITY
• Subject to the constitutional exceptions, appointees to the career service
must possess the requisite eligibility to be established at appropriate
examinations given by the Civil Service Commission and the different
agencies.
Eligible- person who obtains a passing grade in a civil service exam or is
granted civil service eligibility and whose name is entered in the register of
eligibles.
• The board and bar examinations are considered civil service
examinations for the purposes of appointment to positions in the career
service involving knowledge of the respective professions.
• Appropriate civil service eligibility is also granted to summa cum laude,
magna cum laude and cum laude graduates of four-year degree courses
under certain conditions.
APPOINTMENTS Maturan vs. Maglana: Where a temporary appointee acquires civil service
Appointments in the civil service shall be made only according to merit and eligibility during his tenure as such, temporary appointment does not thereby
fitness to be determined by competitive examination. These may be either automatically become permanent.
permanent or temporary.
Permanent Temporary • The Constitution provides for protection of temporary employees as may
Issued to a person who meets all the Issued to a person who meets all the be provided by law
requirements for the position to requirements for the position to • Congress may then may provide for a law allowing the automatic
which he is being appointment which he is being appointed, except conversion of temporary to permanent when civil service eligibility is
the appropriate civil service acquired during the term of the temporary appointment
eligibility, in the absence of
appropriate eligible and it becomes RA 6850: All government employees holding career civil service positions
necessary in the public interest to fill appointed under provisional or temporary status who have rendered at least a
a vacancy total of 7 years of efficient service may be granted civil service eligibility that
may qualify them for permanent appointment.
Shall serve a probationary period of Shall not exceed 12 months and may
6 months, subject to character be replaced sooner if a qualified civil Civil Service Law divides positions in three categories:
investigation and dropping for service eligible becomes available 1. Competitive or classified
unsatisfactory conduct or want of Abrot vs CA: no fixed tenure, but 2. Non-competitive or unclassified
capacity can only be terminated with just 3. Exempt (excluded from Civil Service Act)
cause
Admin Code 1987 grounds for removal of govt officer:
May be granted the civil service 1. Unsatisfactory conduct
eligibility that will qualify them for 2. Want of capacity
permanent appointment to their *Civil Service Law: -inefficiency and incompetence (poor performance)
positions if already rendered at least a
total of 7 years of efficient service
• Probationary and casual employees enjoy security of tenure and may only
Purpose: prevent a hiatus in the be removed for cause or on the case of probationary employees, failure
discharge of official functions to meet standards for regularization
pending the selection of a permanent
• Casual and temporary may be laid off any time before expiration of the
appointee
employment period:
o Services are no longer needed
Laurel vs CSC: Being embraced in the career service, the position of
o Funds are no longer available
Provincial Administrator must be filled up by permanent or temporary
o Project has been completed
appointment (Sec. 25 PD 807). The first shall be issued to a person who meets
o Performance are below par
all the requirements for the position to which he is appointed, including the
appropriate eligibility prescribed. In the absence of the foregoing, a temporary
• They also enjoy due process and cannot be dismissed except for cause
appointment shall be issued to a person who meets all the requirements except
Miranda vs. Carreon: Inefficiency or incompetence can only be determined
the appropriate civil eligibility, it shall not exceed 12 mos and he may be
after the passage of sufficient time, hence the probationary period of 6 months.
replaced sooner if a qualified eligible becomes available.
To gauge whether a subordinate is inefficient or incompetent requires enough
time on the part of his immediate superior within which to observe his
Buena vs. Benito: CSC may not be compelled through mandamus to attest to performance. Three months is not enough to determine performance.
the permanent appointment of the respondent. The Regional Governor of
ARMM has the power to appoint officers in the region’s civil service. However, Chua vs. CSC: A coterminous employee is a non-career civil servant like
if there is no regional law providing for the qualifications for the position at casual and emergency employees. There is no solid reason why the latter are
the time of the appointment, the appointee must sastisfy the civil service extended benefits under the Early Retirement Law but the former are not. RA
eligibilities required for the position in the national government to be appointed 6683 expressly extends benefits to regular, temporary, casual, and emergency
in a permanent capacity. employees. But specifically excluded are uniformed personnel of the AFP
including those of the PC-INP. The legislature would not have made a specific
Luego vs. CSC: CSC is not empowered to determine the kind of nature of the enumeration in a statute had not the intention been to restrict its meaning and
appointment extended by the appointing officer, its authority being limited to confine its terms and benefits to those expressly mentioned. A person, object
approving or reviewing the appointment in the light of the requirements of the or thing omitted from an enumeration must be held to have been omitted
Civil Service Law. When the appointee is qualified and the other legal intentionally.
requirements satisfied, the CSC has no choice but to attest to the appointment
in accordance with Civil Service Laws. PROVISIONAL TEMPORARY
person who has not qualified in an non-civil service eligible without a
*Appointment of contractual employees under coterminous-temporary status appropriate examination but who definite tenure and is dependent upon
is VALID otherwise meets the requirements the pleasure of the appointing power.
for appointment to a regular
Achacoso vs. Macaraig: The contention that the petitioner was intended to be position in the competitive
permanent because temporary appointments are not supposed to exceed 12 mos service, whenever a vacancy
and he has been in the position for 3 years is unacceptable. Even if such were occurs and the filling thereof is
assumed, it would not by itself make his appointment permanent because the necessary in the interest of the
appointment did not confer the appropriate civil service eligibility, he did not service and there in not
possess at the time he was appointed, nor did it vest him with the right to
appropriate register of eligible at
security of tenure that is available only to permanent appointees. the time of appointment.
Designation =/= security of tenure
Ambas vs. Buenaseda: “Term of office fixed by law” allows the appointee to
hold office, perform its functions, and enjoy its privileges and emoluments
Manalang vs. Quitorino / Alba vs. Evangelista: Acting appointee is
until the expiration of said period. It is the definite period of time prescribed
separated by a method of terminating official relations known in the law of
by law by which an officer may hold office.
public officers as expiration of the term. His term is understood at the outset as
without any fixity and enduring at the pleasure of the appointing authority.
When required to relinquish his office, he cannot complain that he is being REGULAR AD INTERIM
removed in violation of his security of tenure because removal imports the Made during legislative session Made during the recess
separation of the incumbent before the expiration of his term, which is only
allowed when it is for cause as provided by law. Made only after the nomination is Made before such confirmation
confirmed by the COA
 Shall cease to be valid if
Once confirmed by the
disapproved by the Commission or
Commission, continues until the end
upon the adjournment of the
of the term of the appointee
Congress
Appointment is deemed “bypassed”
through inaction of, and so Intended to prevent a hiatus in the
disapproved impliedly by, the discharge of official duties
Commission
Matibag vs Benipayo: Permanent appointment
“Until the next adjournment of Congress” – termination of the next
regular or special session of the Congress, not simply the regular one.
Fetalino vs COMELEC: An ad interim appointment that has lapsed by
inaction of the COA does not constitute a term of office. The period from the
time the ad interim appointment is made to the time it lapses is neither a fixed
term nor an unexpired term.
• President may not be compelled to submit acting appointments to the
COA for confirmation
EXCEPTIONS FROM THE REQUIREMENT FOR ERTI AND
FITNESS AS DETERMINED FROM COMPETITIVE EXAMS
- Policy-determining, primarily confidential, highly technical
POLICY-DETERMINING POSITION
One charged with the laying down of principal or fundamental guidelines or
rules, such as that of a department head
PRIMARILY CONFIDENTIAL POSITION
Denotes close intimacy which ensures freedom of intercourse without
embarrassment or freedom from misgivings or betrayals of personal trust or
confidential matters of state; term lasts as long as confidence in them endures.
Functions are not routinary, ordinary and day to day in character. Tenure ends
at the loss of confidence.
• These positions involve the highest degree of confidence, or are closely
bound up with and dependent on other positions to which they are
subordinate, or are temporary in nature.
Proximity rule – position is considered primarily confidential when there is a
primarily close intimacy between the appointing authority and the appointee,
which ensures the highest degree of trust and unfettered communication and
discussion on the most confidential of matters
CSC vs. Javier / Philippine Amusement and Gaming Corp vs. Angara:
CSC’s classification of the exempted positions in the government is an
executive or legislative declaration that is not binding on the Court. The nature
of the position may be ascertained by the Court in cases of conflict.
CSC vs Salas cited in PAGC vs. Rilloraza: Confidential positions:
- Private secretaries
- Personal security of certain public officials: responsible for the life
and well-being of the officials
- City legal officer
- Provincial attorney: lawyer-client relationship
- Rep to the UN: national interest
CSC vs. Javier: A corporate secretary in a GOCC is primarily confidential in
nature, under non-career service. They do not have security of tenure as theirs
is coterminous with that of the appointing authority.
SC ruled the following as confidential positions:
- Senior Security and Security Guard in the Office of the VM of Cebu
- Chief legal counsel of the PNB
- Confidential agent of the Office of the Auditor GSIS
- Secretary of the Sangguniang Bayan
- Secretary of the City Mayor
- Secretary of the board of a govt corp
HIGHLY TECHNICAL POSITION
Requires the appointee to possess technical skill or training in the supreme or
superior degree
PROMOTION
Advancement from one position to another with increase in duties and
responsibilities as authorized by law and usually accompanied by increase in
pay
• Increase in salary should only be considered incidental but not
determinative of promotion
• Generally made according to a merit promotion plan and a performance
evaluation system established and implemented by each department or
agency
Next in rank rule – the person next in rank shall be given preference in the
promotion when the position immediately above his is vacated; if not
appointed, the appointing authority must specify the “special reason or reasons”
for not appointing the officer next-in-rank
• Applies only to promotions and not to positions created in the course of
valid reorganization
• To maintain policy of merit and rewards
• Not a vested right.
• Gives preference to the person occupying the position next in rank to a
vacancy but does not give him exclusive right to be appointed to said
vacancy.
Español vs CSC: does not import any mandatory or peremptory requirement
that the person next in rank must be appointed the vacancy.
Pineda vs. Claudio: Where the appointing power chooses to fill the vacancy
not by promotion but by transfer, reinstatement, re-employment or certification,
he is under no duty whatsoever to explain his action for the law does not require
him so. When a person, who is a junior, jumps over his senior, the ranking is
disturbed and the person next in rank is actually by-passed but he is not really
because the person appointed is the one who holds a position of equivalent rank
as the vacant position. There is no legal fiat that those next in rank are more fit
and meritorious for appointment than those moved by transfer from another
unit.
• A qualified next-in-rank employee who is not satisfied with the written
reasons given by the appointing authority for his by-passing may appeal,
initially to the department head, decisions with respect to appointments
made in favor of another next in rank employee, the appointment extended
to:
1. Another next in rank
2. One who is not next in rank
3. Appointed by transfer who is not next in rank or by
reinstatement or by original appointment
Qualified next in rank – employee appointed on a permanent basis to a
position previously determined to be next in rank to the vacancy proposed to
be filled and who meets the requisites for appointment thereto as previously
determined by the appointing authority and approved by the CSC.
Philippine Telegraph and Telephone Corporation vs CA: There is no law
that compels an employee to accept a promotion for the simple reason that a
promotion is in the nature of a gift or reward which a person has the right to
refuse. A refusal cannot be considered in law as insubordination, or willful
disobedience of a lawful order of an employer.
NEPOTISM
• Nepotism, or favoritism toward relatives by the appointing authority, is
prohibited, covering all appointments and designations
Laurel vs. CSC: The rule against nepotism admits of no distinction between
appointment and designation. Designation is also defined as ‘an appointment
or assignment to a particular office;’ and ‘to designate’ means ‘to indicate,
select, appoint or set apart for a purpose or duty. Sec. 49 of PD 807 does not
suggest that designation should be different from appointment for doing so
means rendering the nepotism rule toothless as appointment of relatives can
be passed off as mere designating and not appointing.
• The relations covered by the prohibition extend to the third degree of
consanguinity or affinity
• Constitution: the spouse and relatives by consanguinity or affinity within
the fourth civil degree of the President shall not during his tenure be
appointed as Members of the Constitutional Commissions, or to the Office
of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads
of bureaus or offices, including GOCCs and their subsidiaries
EXCEPTIONS TO THE NEPOTISM RULE:
(a) Persons employed in a confidential capacity
 (b) Teachers
(c) Physicians
(d) Members of the Armed Forces of the Philippines
*Full report of the appointment must be made to the CSC for these exceptions
CSC vs Cortez: Appointment as IO V made by the CHR of the son of a
member of the Commission is violative of the rule against nepotism even if his
father abstained from voting. It is absurd to declare that the prohibitive veil on
nepotism does not include appointments made by a group of individuals acting
as a body. What cannot be done directly cannot also be done indirectly. While
the relative abstained from voting, his mere presence during the deliberation
created an impression of influence and cast doubt on the impartiality and
neutrality of the Commission En Banc.
REASON FOR THE NEPOTISM RULE:
- Ensure all appointments and other personnel actions are based on
merit and fitness
- Take out of the discretion of the appointing authority the appointing
of a relative
• Appointment or promotion violating the nepotism rule is null and void
Butig, Lanao del Sur vs CA: Charges of nepotism must be duly proved.
Having the same family or middle name does not automatically show
nepotism. Besides, the violation is only for those who fall within the
prohibited degree of consanguinity and affinity.
OTHER PERSONNEL ACTIONS
• Any action denoting the movement or progress of personnel in the civil
service, including appointment through certification, promotion,
transfer, reinstatement, reemployment, detail, reassignment, demotion
and separation
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
-probationary for 6 months (may be dropped for want of
capacity/unsatisfactory behavior before expiration, appealable to CSC)
-undergo thorough character investigation to acquire permanent status
Transfer
- a movement (wow!), requiring prior appointment, from one position to
another which is of equivalent rank, level or salary without break in service
involving the issuance of an appointment (appealable to the Commission)
- one agency or department to another OR
-one organizational unit to another in the same dept. or agency
-transfer resulting to promotion/demotion or one that aims to lure the
employee away from his permanent position cannot be done without his
consent
-illegal transfer = removal without cause
-it is an absolute relinquishment of previous office in exchange for another
-temporary transfer is permissible even without consent PROVIDED it’s not
a prelim step towards a removal scheme
Constructive Dismissal (Sec 6 Rule III CSC Memorandum Circular 40,
S. 1998): employee quits his work because of the agency head’s
unreasonable, humiliating, demeaning actuations which render continued
work impossible, and possible without reduction of salary.
Ex: transfer from a position of dignity to a servile or menial job
Manglapus vs. Matias: Where an officer has served in a foreign post for at
least four years, it would appear the Secretary’s power of assignment and
transfer rests entirely in his discretion, guided chiefly by his perception of
what is necessary for the good of the service. There is no need in the event
that some emergency or extraordinary circumstances exist, this being
required only where the officer has served less than four years in a foreign
post.
-When the nature of the appointment does not indicate a specific station, an
employee may be transferred or assigned without consent as long as it has no
substantial change in rank and salary.
People vs. Reyes: Sec. 261(h) of BP 881 does not per se outlaw the transfer
of a government officer or employee during the election period for a transfer
is a prerogative of the appointing authority. Without this inherent prerogative,
the appointing authority may not be able to cope with the emergencies to the
detriment of the public. Clearly, the transfer or detail of a pubic employee
will not be penalized if done to promote efficiency in government service.
Aquino vs. COMELEC: The term ‘whatever’ in Sec. 261(h) of BP 881 as
well as ‘transfer’ or ‘detail whatever’ should not be read in isolation from the
purpose of the legal prohibition but within the broader context of BP 881
which prevents electioneering or harassment of subordinates with different
political persuasions.
Reinstatement
-Any person who has been permanently appointed, and not merely designated,
to a position in the career service and who has, through no delinquency or
misconduct, been separated therefrom, may be reinstated to a position in the
same level for which he is qualified
-person merely designated cannot ask for reinstatement
Monsanto vs. Factoran: A civil servant who had been separated from the
service by reason of her conviction of a crime which carried with absolute
disqualification from office but later pardoned, does not, by reason of pardon,
become automatically entitled to reinstatement. Unless expressly grounded on
the person’s innocence (which is rare), it cannot bring back lost reputation for
honesty, integrity, and fair dealing. Pardon does not ipso facto restore a
convicted felon to public office relinquished or forfeited by reason of the
conviction.
Garcia vs. Chairman, COA: If an executive clemency, based on the
President’s exercise of his power of control, is granted in favor of an officer
with respect to administrative charges for the same acts for which he was, after
his dismissal, criminally prosecuted and later acquitted because he was found
to not have committed the offense imputed to him, he no longer needs to apply
for reinstatement to his former position. He is restored to his office ipso facto
upon the issuance of the clemency.
Gloria vs. De Guzman: reinstatement is technically the issuance of a new
appointment which is essentially discretionary, to be performed by the officer
in which it is vested according to his best lights, the only condition being that
the appointee should possess the qualifications required by law. Such exercise
of the discretionary power of appointment cannot be controlled, not even the
by the Court, as long as it is exercised properly by the appointing authority.
Reemployment
- Names of persons who have been appointed permanently to positions in the
career service and who have been separated as a result of reduction in force
and/ or reorganization, shall be entered in a list from which selection for
reemployment shall be made
Malabes vs. de la Peña: A judge who had been dismissed and additionally
punished with perpetual disqualification from reemployment in government
offices including GOCCs could not be allowed to accept positions in any
government institution and receive compensation therefor, even if such
designation is temporary and no fixed salary was attached because the
prohibition does not distinguish between permanent and temporary
appointments. Furnishing a copy of his designation to the OBC and MCLE
office does not extinguish his permanent disqualification and neither does the
fact that the complainant in his administrative case did not object to his petition
for clemency.
Detail
- movement of an employee from one agency to another without the issuance
of an appointment
- only for a limited period in the case of employees occupying professional,
technical and scientific positions (appealable to the Commission and executory,
unless otherwise ordered, pending appeal
-cannot be made within 3 months before any election
- Republic vs. CA: detail is temporary
Borres vs Canonoy: Power of control impliedly includes power to detail. If by
the grant of control and supervision, the Mayor can nullify or set aside what a
subordinate had done in the performance of his duties, it is evident that he can
order the detail of the respondent to correct or prevent him from committing
any abuse. It would be illogical to hold that a mayor can transfer employees
from one station to another which involves permanence and severance of
connection with the position, but cannot order the detail of an employee which
is for a more or less brief period and temporary.
Reassignment
- may be reassigned from one organizational unit to another in the same agency,
provided that such reassignment shall not involve a reduction in rank, status or
salary
-cannot be made within 3 months before any election
-must have definite period or duration pursuant to security of tenure improper, or unlawful conduct motivated by premeditated, obstinate, or
international purpose.
DETAIL REASSIGNMENT
One agency to another Within the same agency Gross misconduct – beyond allowance, flagrant, shameful misconduct
[order to detail] Immediately [reassignment order] Not Serious misconduct – transgression of some established and definite rule of
executory immediately effective action, unlawful behavior by a public officer coupled with elements of
corruption, willful intent to violate or disregard established rules.
-reassignment within a station-specific place is allowed as long as not
exceeding 1 year • Conduct prejudicial to the interest of service – a demeanor of a public
-reassignment without specific station has no duration unless revoked officer which tarnishes the image and integrity of his or her public office.
- The conduct need not be related to official functions.
Reassignment outside geographical location of present place of work:
1. If with consent of employee – period has no limit • Incompetence in the performance of duty – manifest lack of adequate
2. If without consent – one year maximum ability and fitness for the satisfactory performance of official duties by
reason of the officer’s vices or vicious habits with reference to physical,
Demotion moral, or intellectual quality, the lack of which substantially incapacitates
- movement from one position to another involving the issuance of an one to perform the duties of an office.
appointment with diminution in duties, responsibilities, status or rank which - Equivalent to inefficiency
may or may not involve reduction in salary - reason for the probationary period of 6 months
- tantamount to removal if without just cause
ABAKADA vs. Purisima: failure of officers to reach their prescribed revenue
Dropping from the rolls (AWOL) targets as provided for in RA 9335 as analogous to inefficiency and
-employees leaving or abandoning their posts for a continuous period of 30 incompetence.
calendar days or more without justifiable reason and notice to their superiors
-not a disciplinary action • Gross negligence - characterized by the want of even slight care, acting or
-concerned employee may not be notified omitting to act in a situation where there is a duty to act, not inadvertently
-may be dropped without prior notice under the ff circumstances: but willfully and intentionally, with a conscious indifference to
1. Continuously absent for at least 30 days without approved leave consequences in so far as other persons may be affected.
2. Established a scheme to circumvent the rule by incurring substantial - omission of care which even inattentive and thoughtless men never fail to
absences though less than 30 working days three times in a semester take on their own property.
that such a pattern was readily apparent
Some more grounds:
Secondment • Disgraceful and immoral conduct
-movement if an employee from one department or agency to another which is • Being notoriously undesirable
temporary in nature • Receiving for personal use of a fee, gift, etc.
-may or may not require the issuance of an appointment • Conviction of a crime involving moral turpitude
-may involve an increase in compensation and benefits • Committing acts punishable under the anti-graft law
-acceptance is voluntary

PERSONNEL DEVELOPMENT
• To improve the attitude and competence of the civil service, each
department or agency is required to develop a career and personnel
development plan which shall contain provisions for merit promotion,
performance evaluation, in-service training, job rotation, suggestions and
awards system, and such other plans for employees’ health, welfare,
counselling, recreation and similar services
• Employees shall have the right to present their complaints or grievances to
management and have them adjudicated as expeditiously as possible in the
best interest of the agency, the government as a whole, and the employee
concerned.
• Such complaint shall be resolved at the lowest possible level in the agency
or dept. with the option to appeal
• Each dept. or agency shall promulgate rules and regulations governing
expeditious, fair, and equitable adjustment of complaints according to the
CSC policies

DISCIPLINE
-Officers and employees in the Civil Service, including those appointed to
policy-determining, primarily confidential and highly technical positions,
enjoy security of tenure and may not be suspended or dismissed except for
cause as provided by law.
-may be disciplined if they violate their public trust and fail to serve with utmost
responsibility, integrity, loyalty, and efficiency and act with patriotism and
justice, and lead modest lives.

Grounds
Among the grounds for the discipline of members of the Civil Service are:
• Dishonesty – intentionally making a false statement in any material fact, or
practicing or attempting to practice any deception or fraud in exams,
registrations, appointment. A disposition to lie, cheat, deceive, defraud,
lack of integrity.

• Neglect of duty – suspension of 1 month 1 day – 6 months, P5000 fine for

first offense.

• Misconduct – Canson vs Garchitorena: any unlawful conduct on the part

of the person concerned in the administration of justice prejudicial to the
rights of the parties or the right determination of the cause. The wrongful,