one school to another in Quezon City but not outside. Here, there was no violation of security of tenure.

Gloria v. CA & Icasiano

(338 SCRA 10)

Reassignment that is indefinite violates security of tenure and is in effect constructive dismissal.

You have here Icasiano whose appointment was as schools division superintendent of Quezon City. On the basis of a memorandum prepared by Secretary Gloria of DECS (now DepEd) and approved by the President of the Philippines, Icasiano was reassigned to the vocational school of Marikina Institute of Science and Technology (MIST) as its new schools division superintendent. And so there was this issue on the validity of the reassignment. Now, the nature of the reassignment here was temporary but the order of reassignment indicated permanency. So if the memorandum clearly indicates lack of temporariness, this would be violative of the security of tenure. Is it possible, let us say, for an employee even when appointed to a specific station, to be reassigned? The GENERAL RULE is NO. The EXCEPTION if he agrees. If he consents to such reassignment, there is no violation of the security of tenure. But again, the nature of the reassignment or transfer must be temporary. It cannot be permanent. So here in the case of Icasiano, on the basis of his supposed expertise and training, he was transferred to MIST, which transfer did not indicate a time within which he could serve in such capacity. Clearly, there was lack of temporariness negating good faith, thus there is violation of Icasianos security of tenure.

Fernandez v. Sto. Tomas

(242 SCRA 193)

Facts: Fernandez was then the Director of the Office Personnel and Audit of the CSC. He was transferred to Region V. Another guy, Director Delima, was reassigned to Region III. They complained violation of due process, that there was a constructive illegal dismissal as a result of their being transferred; and that this was a demotion.

Held: Their claims are incorrect. Their appointments to the commission are not appointments to specific offices. They are appointments of ranks. Take note that EO 292 gives authority to CSC to effect changes when the need arises. So there can be a valid transfer without violating the security of tenure. Now, what about their security of tenure to their respective positions? Take note that there are three levels of officers in the career service: (clerical position, technical position, career executive). The third level pertains to the higher levels in the Civil Service. You have 6 grades here in the Career Executive Service. The lowest in the rank is 6 and highest is 1. Unlike in the first and second levels where security of tenure is acquired with respect to the position occupied, this is not so in the case of the third level because appointments issued to individuals in the third level does not have security of tenure as to the position. The security of tenure is with respect to the rank.

Q: What is a PROMOTION?

A: It is the advancement from one position to another with an increase in duties and responsibilities as authorized by law, and usually accompanied by an increase in salary.

Q: What is a DEMOTION?

A: Under Section 11, Rule VII of the Omnibus Rules Implementing Book V of EO 292, it is the movement from one position to another, usually involving the issuance of an appointment, with a diminution in duties, responsibilities, status or rank. A diminution in any one of those categories is sufficient to constitute a demotion, hence, tantamount to a virtual dismissal. Take note that a demotion clearly violates security of tenure. There may be in fact constructive dismissal from the service by reason of demotion, which may be in the guise of a reassignment.

Example: When a person is reassigned from one unit to another in the same agency but there is a diminution in terms of his responsibilities or duties because the new assignment is not given anymore the power to supervise employees. Clearly this is a demotion, a violation of the CS rule.

Padolina vs. Fernandez

342 SCRA 488

Private respondent Ofelia Fernandez occupied the position of Finance and Management Division Chief of the PAG-ASA-DOST. She was reassigned to the PAG-ASA Bicutan Office with the same position. However, in her previous office, she supervised over 41 employees. In her new place of assignment, she did not anymore exercise such power of supervision over the subordinate employees. The Court held that there is a demotion, a violation of her security of tenure.

Q: What is a REASSIGNMENT? A: This pertains to the movement of an employee from one unit to another in the same department or agency, which does not involve a reduction in duties, responsibilities, status or rank. This does not require the consent of the employee concerned, nor a prior appointment. As a rule, this is valid. There is no violation of the security of tenure. This can be done in the interest of public service and so long as it is done in good faith.

Example: If a person is reassigned from one unit to another in the same agency or in the same government, say the City of Davao, and the person is reassigned from the records to the administrative division, but still in the same office.

But the rule is different where the appointment issued to the officer has a specific station (Sta. Maria case). If the appointment is to some specific station, you can only be reassigned with your consent. If you do not consent to the reassignment, you cannot be compelled to be reassigned. But if appointment does not indicate a specific station, one cannot complain of violation of security of tenure so long as it the same was done in good faith. Also, when the reassignment involves a diminution in rank, salary, duties, this amounts to a demotion, hence, requiring the consent of the officer or employee.

Q: What is a TRANSFER?

A: It is the movement from one department to another, from one office to another, which is of equivalent rank, level or salary, without break in the service. Clearly, this would require the prior consent of the employee. In fact, there should be an issuance of a new assignment or a prior appointment, because you are being transferred from one department to another in violation of the security of tenure.

Tuason vs. Cassion

435 SCRA 295

Mayor Plaza of Butuan issued an order reconstituting the social development office. By reason of such action, several DSWD employees who were devolved to the LGU, were reassigned. They staged a protest. SC upheld the authority of the mayor in effecting such reassignments. They can effect a devolution under the LGC pursuant to the autonomy given to LGUs. The matter of transfer of office which is mere physical transfer of office from one place to another is not the transfer contemplated under the law so as to constitute a violation of the security of tenure. Moreover, in issuing designations, and again take note the concept of designation which is temporary in nature, there was no violation of security of tenure.

Chato vs. Martinez

344 SCRA 18

Facts: You have here Martinez, an employee of the BIR occupying the position of Chief Revenue District Officer of District 34 of the Assessment Division in the BIR field office. By virtue of an order from then BIR Commissioner Chato, Martinez was reassigned to the Collections Program of the national office. The latter complained that the reassignment violated her security of tenure because her new assignment was totally alien to her, her field of expertise being in assessment rather than in collection.

Held: SC ruled that there was no violation of her security of tenure because the BIR commissioner in fact has the power to appoint or reassign employees and officers of the BIR when exigencies of the agency require. Public interest requires that she be reassigned. The only caveat here, or in any reassignment, is that there should be no diminution in terms of status, rank or salary. In this case, there was no such reduction. Therefore, there was no violation of security of tenure. Another reason here is that, to allow the claim of Martinez would be to subordinate the interest of the national government to the whims and preferences of the government employees. This should not be the case.

Q: Suppose a clerk in the city government is being transferred from the records division to some field office. Valid or invalid? Let us say this guy complains of violation of tenure. So how will we determine if there indeed is a violation?

A: You have to look into the nature of his appointment extended to him. If the appointment given to him indicated a specific station, then clearly that employee may not be transferred or assigned without his consent. Without consent, there is violation of security of tenure. On the other hand, if the appointment was without a specific station, then you can be reassigned without your consent provided that the transfer or reassignment does not involve a substantial change in his status, salary, rank or position. Because if there is change, i.e. that would result to demotion, then this would constitute a constructive dismissal, violating the security of tenure.

Note: The fact that one candidate is better qualified than the other is not a basis to issue the appointment to the better qualified individual because what is simply required is the possession by the appointee of the minimum requirement for that position.

Reyes, Jr. v. Belisario

(596 SCRA 35)

FACTS:

Deputy Administrators Simplicio Belisario, Jr. and Emmanuel B. Malicdem6(respondents), along with Daniel Landingin and Rodolfo S. De Jesus, all officers of the Local Water Utilities Administration (LWUA), filed before the Office of the Ombudsman acriminal complaintagainst LWUA Administrator Prudencio M. Reyes, Jr. (petitioner) forviolation of Section 3(e) of Republic Act No. 3019, or the Anti-Graft and Corrupt Practices Act. only 13 days after the filing of the graft charge, the petitioner issued Office Order No. 69 reassigning respondents together with De Jesus from the offices they then held to the Office of the Administrator. Supposedly, the reassigned officers were to act as a core group of a LWUA Task Force and their specific assignments were to be given by petitioner; Officers-in-Charge (OICs) were designated for the offices they vacated.Atty. Espinas, LWUA corporate legal counsel, sought the opinion of the Civil Service Commission regarding the regularity of the reassignments of respondents and of De Jesus.

The CSC responded on April 3, 2000 through a legalopinion where it categorically ruled that the reassignments were not in order, were tainted with bad faith, and constituted constructive dismissal.

NOTES:

The issuance came after the case (charges against Reyes before the Ombudsman)

Under LWUA, admin has no power to reassign, but the BOD. Admin simply has the power to recommend, but ultimately it is the BOD.

Issuance is characterized by bad faith as it was a retaliation of the graft and corruption charges

ISSUE: WON the reassignments are proper

HELD: NO.

As a general rule, "official acts" enjoy the presumption of regularity, and the presumption may be overthrown only by evidence to the contrary.When an act is official, a presumption of regularity exists because of the assumption that the law tells the official what his duties are and that he discharged these duties accordingly. But not all acts of public officers are "official acts," i.e., acts specified by law as an official duty or as a function attached to a public position, and the presumption does not apply when an officials acts are not within the duties specified by law, particularly when his acts properly pertain or belong to another entity, agency, or public official.

In the present case, the CSC had spoken by way of anen bancresolution, no less, that the petitioner LWUA Administrators reassignment orders were illegal because, by law, the authority to reassign officers and employees of the LWUA lies with the LWUA Board; the LWUA Administrators authority is merely to recommend a reassignment to the Board. For reason of its own, the Office of the Ombudsman disregarded this clear statement of the legal allocation of authority on the matter of reassignments. This omission cannot but have fatal consequences for the Ombudsmans decision, anchored as it is on the presumption that the petitioner regularly performed his duty. For, shorn of any basis in law, the petitioner could not have acted with official authority and no presumption of regularity could have been applied in his behalf. Without a valid presumption of regularity, the major linchpin in the Ombudsmans decision is totally removed and the decision is left with nothing to support itself.

We note in this regard that the Office of the Ombudsman, other than through its "non-finality" argument, completely failed to explain why the reassignment orders were valid and regular and not oppressive as the respondents alleged. Effectively, it failed to rebut the CSCs declaration that a constructive dismissal took place. This omission is critical because the constructive dismissal conclusion relates back to the filing of graft charges against the petitioner as motive; explains why the respondents were transferred to ad hoc positions with no clear duties; and relates forward to the manner the respondents were ejected from their respective offices.CAREER EXECUTIVE SERVICE (CES)

Security of tenure in the Career Executive Service (CES) is acquired with respect to rank and not to position. The guarantee of security of tenure to members of the CES does not extend to the particular positions to which they may be appointed a concept which is applicable only to first and second-level employees in the civil service but to the rank to which they are appointed by the President. As Josefina Bacal does not have the rank appropriate for the position of Chief Public Attorney, her appointment to that position cannot be considered permanent, but merely temporary, and she cannot claim security of tenure in respect of that position. She did not acquire security of tenure by the mere fact that she was appointed to the higher position of Chief Public Attorney since she was not subsequently appointed to the rank of CESO 1 based on her performance in that position as required by the rules of the CES Board. Respondent as a CESO can be reassigned from one CES position to another and from one department, bureau or office to another. Within the CES, personnel can be shifted from one office or position to another without violation of their rights to security of tenure because their status and salaries are based on their ranks and not on their jobs. Respondent, who holds a CES Rank III, was correctly and properly appointed by the appointing authority to the position of Regional Director, a position which has a corresponding CES Rank Level III, and this cannot be considered a demotion nor violative of security of tenure. This was her position before her appointment on Feb. 5, 1998 to the position of Chief Public Attorney of the PAO, which requires a CES Rank Level 1 for appointment thereto. She may have been considered for promotion to Rank 1 to make her appointment as Chief Public Attorney permanent. The fact, however, is that this did not materialize as petitioner Carina Demaisip was appointed in her place (Cuevas vs. Bacal, 347 SCRA 339). On the fact that petitioner is a CES eligible, the law (Integrated Reorganization Plan) allows in exceptional cases the appointment of non-CES eligibles provided that the appointee subsequently passes the CES Examinations. On the other hand, as Bacal herself does not have the requisite qualification for the position of Chief Public Attorney, she cannot raise the lack of qualification of petitioner Demaisip. In a quo warranto proceeding, the person suing must show that he has a clear right to the office allegedly held unlawfully by another. Absent that right, the lack of qualification or eligibility of the supposed usurper is immaterial (supra). Under the Rules promulgated by the CES Board, what entitles an examinee to a conferment of a CES eligibility is his passing the CES examination. Upon conferment of a CES eligibility, an incumbent of a CES position may qualify for appointment to a CES rank. After such appointment, the appointee is entitled to security of tenure. Petitioner, who was appointed Assistant Department Manager of the PCSO, does not possess the required CES eligibility. Hence, he has not security of tenure. His appointment did not attain permanency, thus, it can be withdrawn from him anytime without violation of the right to security of tenure (Caringal vs. PCSO, 472 SCRA 577). The Court affirmed the validity of petitioner Amores separation from service without cause as Deputy Director for Hospital Support Services at the Lung Center of the Philippines. Said position belongs to the CES appointments to which by law require that the appointees possess the corresponding CES eligibility. Although the law permits on many occasions the appointment of non-CES eligibles to CES positions in the government in the absence of appropriate eligibles and when there is necessity in the interest of public service to fill vacancies in the government, however, in all such cases, the appointment is at best merely temporary as it is said to be conditioned on the subsequent acquisition of the required CES eligibility (Amores vs. CSC, 29 April 2009). The security of tenure of employees in the CES (except first and second-level employees in the civil service), pertains only to rank and not to the office or to the position to which they may be appointed. Thus, a CESO may be transferred or reassigned from one positon 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 he is compensated according to his CES rank and not on the basis of the position or office he occupies (General vs. Roco, 350 SCRA 528). While there is a distinction between position and rank, such that a CESO may be transferred or reassigned from one position to another without losing his rank, there can be no distinction between resigning from a position and resigning from a rank. The rank of a CESO is deactivated upon resignation from the government service, which includes resignation of a CESO from his position (Collantes vs. CA, CSC and DND, 06 March 2007).

A major feature of the Integrated Reorganization Plan which was adopted and declared part of the law of the land by PD No.1 on Sept. 24, 1972 was the creation of the CES. This group of career executives shall be carefully selected based on high qualifications and competence and shall act as catalysts for administrative efficiency and agents of administrative innovation. Their status and salary will be based on their rank and not on the job that they occupy at any given time. The rank classification in the CES will allow for mobility or flexibility of assignments such that government could utilize their services or special talents wherever they are most needed. Thus, mobility and flexibility in the assignment of personnel to cope with the exigencies of the service is the distinguishing feature of the CES (Cuevas vs. Bacal).

In order for a position to be covered by the CES, two elements must concur. First, the position must either be (1) a position enumerated under Bk V, Title I(A), Chapter 2 of the Administrative Code of 1987, i.e. Undersecretary, Asst. Secretary, Bureau Director, Asst. Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service, or (2) a position of equal rank as those enumerated, and identified by the CES Board to be such position of equal rank. Second, the holder of the position must be a presidential appointee. Failing in any of these requirements, a position cannot be considered as one covered by the third level or CES. The holder of the position of Asst. Department Manager ll is appointed by the PCSO General Manager, and not by the President of the Philippines, accordingly, said position is not covered by the third level or the CES, and does not require Career Service Executive (CSE) eligibility. Therefore, the appointments of Sarsonas and Ortega as Asst. Dept. Manager ll do not require third level eligibility pursuant to the Civil Service Law, rules and regulations (CSC vs. CA, 635 SCRA 749). The position of HIGC Vice President is not covered by the CES as the position is not enumerated by law as falling under the third level; respondent Cruz has not established that the position is one of those identified by the CESB as being of equivalent rank to those listed by law; and the holder thereof is not appointed by the President (Home Insurance Guarantee Corp. vs. CSC, 220 SCRA 148). A person occupying the position of Graft Investigation Officer lll is not appointed by the President but by the Ombudsman as provided in Article lX of the Constitution. To classify said position as belonging to the CES and require an appointee thereto to acquire CES or CSE eligibility before acquiring security of tenure would be absurd as it would result either in (1) vesting the appointing power for said position in the President, in violation of the Constitution; or (2) including in the CES a position not occupied by a presidential appointee, contrary to the Administrative Code (Ombudsman vs. CSC, 451 SCRA 570). The position of Vice President of HIGC does not belong to the 3rd level of the career service. Respondent Cruz has not satisfactorily shown that his former position as Vice President in the HIGC belongs to the third level in the career service as prescribed by law, nor has he established that it is one of those identified by the CESB as of equivalent rank to those listed by law. Neither is it claimed tha he was appointed by the President (Home Insurance Guarantee Corporation vs. CSC, 220 SCRA 148). Under the Constitution, the Ombudsman is the appointing authority for all officials and employees of the Office of the Ombudsman, except the Deputy Ombudsmen. Director ll positions in the Central Administrative Service and the Finance Management Service of the Office of the Ombudsman are appointed by the Ombudsman and not by the President. Hence, they are not covered by the CES. The CES covers presidential appointees only. To classify these positions as covered by the CES and require appointees thereto to acquire CES or CSE eligibility before acquiring security of tenure will lead to unconstitutional and unlawful consequences. It will result either in (1) vesting the appointing power for said position in the President, in violation of the Constitution or (2) including in the CES a position not held by a presidential appointee, contrary to the Administrative Code (Ombudsman vs. CSC, 528 SCRA 535). The position of Director Manager ll at the PEZA is not among the enumerated positions in the Career Executive Service, much less, a position that requires presidential appointment. For said reason, Agyao only needs the approval of the PEZA Director-General to validate his appointment or re-appointment. As he need not possess a CESO or CSEE eligibility, the CSC has no valid and legal basis in invalidating his appointment or re-appointment as Department Manager ll. The CA decision affirming the invalidation by the CSC of petitioner Agyao as Department Manager ll of Philippine Economic Zone Authority was thus reversed and set aside by the SC (Agyao vs. CSC, 18 January 2011).

Positions excluded from the coverage of the CES per CESB Resolution No. 799 (May 19, 2009):

a. Managerial and executive positions which have fixed term of office as provided for in the charter of the agency or as specified by law;

b. Managerial and executive positions in the non-career service which include the following:

i. Elective officials and their personal or confidential staff;

ii. Secretaries and other officials of cabinet rank who hold their positions at the pleasure of the

President and their personal or confidential staff;

iii. Chairman and members of commission and boards with fixed terms of office and their personal or confidential staff;

iv. contractual personnel; and

v. emergency and seasonal personnel.

c. Managerial and executive positions in the national government belonging to the closed career systems which are administered by special bodies such as the Foreign Service, PNP, State Colleges and Universities unless otherwise provided in their respective charters, the Scientific Career Service and the like;

d. The position of Head Executive Assistant.

Caringal v. PCSO

(472 SCRA 577)

Facts: Atty. Jose Caringal was issued an appointment by the chair of the PCSO headed by the late Justice Muoz-Palma as Assistant Legal Adviser of the PCSO Legal Department. It appears that Caringal lacked the required career service eligibility. Thereafter, when justice Palma was replaced as the chair, his successor Gulpeo issued an order reassigning petitioner to the active and investment department. Petitioner protested the reassignment order on the ground that it is a constructive dismissal. Subsequently, he was dismissed by PCSO. Caringal filed an action for illegal dismissal before the Civil Service.

ISSUE: WON the dismissal was proper

Held: The dismissal was proper. The position of Assistant Legal Officer previously occupied by petitioner belongs to the third level. The first and second levels (clerical and technical) security is with regard to the position while the third levels security of tenure is with regard to the rank. Is there a possibility that even a non-eligible may be appointed to such position in the third level? The rule here is: A permanent appointment can be issued only to a person who possesses the requirements for the position including the required eligibility. As an exception, in order to prevent paralyzation of the government operation, there is an urgent necessity to fill the position that even a non-eligible gets appointed but only in a temporary capacity. The law provides that such appointments should not exceed 12 months. But even before the 12-month period, if there be an eligible available, the non-eligible may be replaced by the eligible, without violation of security of tenure, since he merely holds office in a temporary capacity.

SC also laid down the practice test in the matter of securing this CES rank. The fact that one individual is better qualified to the position than the other is not a basis to issue the appointment to the better individual because what is required is that the appointee possesses the minimum requirement to be appointed to the position, i.e. passing the CES examination. If the person already is a CES eligible, he may then be entitled to qualification for appointment. So he gets to qualify appointment to CES rank upon the recommendation of CES board. The matter of issuing this CES rank will be done by the Office of the President. It approves the ranking of the CES eligible on the basis of the recommendation of the CES board and the recommendation of the CES board shall be premised on the evaluation of the performance in the CES. It is only when there is already this ranking given to the CES eligible that he obtains security of tenure.

Cuevas v. Bacal

(347 SCRA 339)

FACTS:

Bacal was a regional director in the PAO office in Cagayan. During the time of President Ramos she got appointed from regional director to the top position Chief Public Attorney under the DOJ, which has a CESO rank I. But in her case, she only held the CESO Rank III. And so when Estrada assumed office as President, he appointed another person, Carina Dimaisip. Bacal complained that Cuevas was not even CESO while she is. In effect, she, a CESO, was replaced by non-CESO.

Is it possible? As an exception, yes. The concept of this CES and how its works, the feature of this CES are MOBILITY and FLEXIBILITY on the part of the government in assigning or reassigning competents in the career office on the basis of their performance. And they can be re-assigned or transferred without violating their security of tenure because the security of tenure is with respect to their rank and not with respect to their position. The objective here is to enable the government to make use of the talents pertaining to the CESO.

Now what about the issue on the non-qualification of the person who replaced her? One who questions the title to the office in a Quo Warranto, must show that in fact she is lawfully entitled to the position. In the case of Bacal, she could not question the validity of Dimaisips appointment because she herself is not qualified to the position. She merely held the CESO Rank Level III, while the position has the Rank Level I. Moreover, Dimaisips appointment was only in a temporary capacity.Amores v. CSC

(29 Apr 2009)

FACTS:

Ptr. Amores was the Deputy Director for Hospital Support Services at the Lung Center of the Philippines (LCP). When Dr. Zaldival, the Executive Director of the LCP, retired from service, petitioner was designated as OIC by DOH Sec. Romualdez, Jr.

Resp. Dr. Melendres was appointed by Pres. Estrada as Executive Director of the LCP.

Controversy arose in the LCP. Melendres appointment and leadership were questioned. Melendres filed charges of dishonesty and double compensation against ptr. Ptr. Was found guilty of having committed dishonesty by engaging in private practice of his profession during office hours.

ptr. Then received a letter informing him of his separation from service as Deputy Director. CSC pointed out that ptrs separation from service was due to his luck of a CES eligibility which is required for the position of Deputy Director, and as such he enjoyed no security in his tenure.

Issue: WON ptr, as Deputy Director, enjoys security of tenure

Held: NO, he does not! The position of Deputy Director for Hospital Support Services at the LCP belongs to the CES appointments to which by law require that the appointees possess the corresponding CES eligibility. However, there was no showing that ptr. while holding the said position, he was able to acquire the required eligibility.

Because petitioner lacked the proper CES eligibility, and therefore had not held the subject office in a permanent capacity, there could not have been any violation of ptrs supposed right to tenure.

* Appointment of non CES eligibles to CES positions in the government is merely temporary.

General v. LTO RD Roco

(350 SCRA 528)

FACTS: Respondent Roco was appointed by then Pres. Ramos in 1996 as Regional Director of LTO, a position equivalent to CES rank level V. He was reappointed by Pres. Estrada to the same position in 1999. At that time, Resp. Roco was not a CES eligible. It was only in August 1999, during his incumbency, that he was conferred CES eligibility.

On Sept. 1999, ptr. General, who is not a CES eligible, was appointed by Pres. Estrada to the same position occupied by respondent. Ptr. General was directed to assume said office immediately and for resp. Roco to report to the office of Sec. for further instructions.

Aggrived, res Roco filed befire the CA petition for quo warrant, arguing that CES eligibility is all that an employee needs to acquire security of tenure in the service and that appointment to CES rank is not necessary for the acquisition of such security of tenure.

Issue: WON appointment to a CES is necessary for the acquisition of security of tenure in the service

Held: YES. Two requisites us concur in order that an employee in CES may attain security of tenure:

1. CES eligibility

2. Appointment to the appropriate CES rank. The rules and regulations promulgated by the CES Board provides that: upon conferment of a CES eligibility and compliance with other requirements by the Board, an incumbent of a CES position may qualify for appointment to a CES rank. Appointment to CES rank is made by the President upon recommendation of the Board. This process completes the officials membership in the CES and confers upon him security of tenure.

* IN THE CASE, Roco, though CES eligible, does not possess the appropriate CES rank - CES rank Level V for the position of Regional Director of LTO. Falling short of one of the qualifications, respondent cannot interpose security of tenure.

While there is a distinction between position and rank, such that a CESO may be transferred or reassigned from one position to another without losing his rank, there can be no distinction between resigning from a position and resigning from a rank. The rank of a CESO is deactivated upon resignation from the government service, which includes resignation of a CESO from his position (Collantes vs. CA , CSC , and DND , 06 March 2007)

De Leon v.Montesa

(371 SCRA 413)

Justification of transfer/ reassignment of CESO to other positions: mobility and flexibility. The Integrated Reorganization Plan (PD1) allows the appointment of Non-CES eligibles, like Montesa as Ministry Legal Counsel, provided they subsequently acquire the eligibility.

FACTS:

Private respondent Atty. Jacob F. Montesa, who is not a Career Executive Service Officer (CESO) or a member of the Career Executive Service, was appointed as Ministry Legal Counsel - CESO IV in the Ministry of Local Government (now DILG) by then Minister Aquilino Pimentel, Jr.Private respondents appointment was approved as permanent by the CSC. Then President Corazon C. Aquino promulgated Executive Order No. 262, reorganizing the Department.Then Secretary Luis T. Santos designated Nicanor M. Patricio as Chief, Legal Service in place of private respondent who, in turn, was directed to report to the office of the Secretary to perform special assignments. Thereafter, Montesa file a quo warranto proceedings against Santos and Patricio.

Meanwhile, Republic Act No. 6758 reclassified Department Legal Counsel and ranked with Assistant Bureau Directors under the generic position title of Director III.

Hence, respondent was reinstated to the position: Department Legal Counsel and/or Director III.

Respondent was relieved but reassigned as Director III of Region XI. However, he failed to report to work. Instead, he filed a 90-day sick leave and submitted a memorandum signifying his intention to re-assume his position.

ISSUE: Can a person who lacks the necessary qualifications for a public position be appointed to it in a permanent capacity?

HELD:

NO. It must be stressed that the position of Ministry Legal Counsel -CESO IV is embraced in the Career Executive Service. Private respondents appointment did not attain permanency.Not having taken the necessary Career Executive Service examination to obtain the requisite eligibility, he did not at the time of his appointment and up to the present, possess the needed eligibility for a position in the Career Executive Service.Consequently, his appointment as Ministry Legal Counsel - CESO IV/ Department Legal Counsel and/or Director III, was merely temporary.Such being the case, he could be transferred or reassigned without violating the constitutionally guaranteed right to security of tenure.

Private respondent capitalizes on his lack of CES eligibility by adamantly contending that the mobility and flexibility concepts in the assignment of personnels under the Career Executive Service[24]do not apply to him because he is not a Career Executive Service Officer.Obviously, the contention is without merit.As correctly pointed out by the Solicitor General, non-eligibles holding permanent appointments to CES positions were never meant to remain immobile in their status.Otherwise, their lack of eligibility would be a premium vesting them with permanency in the CES positions, a privilege even their eligible counterparts do not enjoy.

Notes:

Six CES Grades

1. Under Secretary -- Career Servicewith security of tenure

--Non-career Serviceno security of tenure; temporary

2. Assistant Secretary

3. Executive Directors, Regional and Provincial Directors

4. Assistant Executive Director

5.

6. Division Chief

CES Rank is given by the President as recommended by the evaluation of performance in CES.

When there is already a CES Rank, security of tenure attaches in Third Level.

Collantes v. CA

(517 SCRA 561)

There is a distinction between position and rank. A CESO may be transferred or reassigned from one position to another without losing his rank. Rank of a CESO is deactivated upon resignation from the govt service, which includes the resignation of a CESO from his position. Petitioners claim that his relief as Undersecretary for Civil Relations of DND violated his security of tenure as CESO is untenable because, by his own deliberate deed, he resigned. Any express promise of another position is void.

The mere fact that the President, by himself or through another, requested for Collantes resignation does not give the President the obligation to appoint him to another position. There can be no implied promises of another position just because the resignation was made out of courtesy. Also, an express promise of another position would be void because there can be no derogation of the discretion of the appointing power and because its object is outside the commerce of manPRESIDENTIAL APPOINTMENTS

Kinds of Presidential Appointments

a) An ad interim appointment is one made during the time when the appointing or confirming body is not in session and there is an existing clear and present urgency caused by an impending obstruction or paralyzation of the functions assigned to the office if no immediate appointment is made (Marohombsar vs. Alonto, 194 SCRA 268). Under Article Vll, Sec. 16 of the Constitution, an ad interim appointment is immediately effective and is subject only to disapproval by the Commission on Appointments or as a result of the next adjournment of Congress (1991 BQ). Appointments that are for the President solely to make, i.e., without the participation of the Commission on Appointments, cannot be ad interim appointments (Bautista vs. Salonga, 172 SCRA 160).

The appointment by the President of Mary Concepcion to the position of Chair of the Commission on Human Rights which under the Constitution is to be made, in the first place, without the participation of the Commission on Appointments was then and there a complete and finished act (supra). Ad interim appointments must be distinguished from appointments in an acting capacity. Both of them are effective upon acceptance. But ad interim appointments are extended only during a recess of Congress, whereas acting appointments may be extended any time there is vacancy. More, ad interim appointments are submitted to the Commission on Appointments for confirmation or rejection; acting appointments are not submitted to the Commission. Acting appointments are a way of temporarily filling important offices but, if abused, they can also be a way of circumventing the need for confirmation by the Commission. Thus, to avoid abuses, acting appointments cannot exceed one year as expressly provided in Sec. 17(3), Ch. 5, Book lll of EO 292 (Pimentel vs. Ermita, 472 SCRA 589). Here, the appointment by Pres. GMA to respondents Abad, Cruz Jr., Defensor, Durano, Gonzalez, Romulo, Villa and Yap as acting secretaries of their respective departments while Congress is in session is constitutional. Her act impairs no power of Congress since the Commission of Appointments is independent of Congress and it powers do not come from Congress but from the Constitution. Its exercise of powers is executive and not legislative. The office of a department secretary may become vacant while Congress is in session. Since he is the alter ego of the President, the acting appointee must necessarily have the Presidents confidence. The President may even appoint in an acting capacity a person not yet in the government service as long as the President deems that person competent. There is no abuse in the present case as Pres. GMA issued ad interim appointments to respondents immediately upon the recess of Congress, way before the lapse of one year. (supra).

Q: May the person who is appointed or designated by the President while Congress is in session already assume office without awaiting the action of the Commission on Appointments?

A: Yes. This should be done in order to prevent paralyzation in the government. But this is merely in an ACTING CAPACITY, which is temporary in nature.

AD INTERIM APPOINTMENTSAPPOINTMENTS IN AN ACTING CAPACITY

Both are effective upon acceptance

Extended only during recess of CongressExtended anytime there is vacancy

Submitted to the Commission on Appointments for confirmation or rejectionOnly a way of temporarily filling important offices but if abused, they can also be a way of circumventing the need for confirmation by the Commission.

Pimentel v. Ermita

(472 SCRA 589)

Facts: You have here Senator Pimentel questioning the appointment or designation issued by President GMA to several individuals (Abad, Cruz, Jr., Defensor, Durano, Gonzales, Romulo, Villa and Yap, etc.) as acting secretaries of their respective departments while Congress is in session. Pimentel argued that they should not be allowed to assume office in the absence of the concurrence by the Commission on Appointments as required by the Constitution.

Held: SC ruled that this is a valid issuance by the president because they were simply issued in an acting capacity. GMAs act impairs no power of Congress since the Commission on Appointments is independent of Congress whose powers come from the Constitution. Its exercise of powers is executive and not legislative. The office of a Department Secretary may become vacant while Congress is in session. Congress, through a law, cannot impose on the President the obligation to appoint automatically the undersecretary as her temporary alter ego. An alter ego, whether temporary or permanent, holds a position of great trust and confidence.

Even one who has not yet been in the government service may be designated or appointed by the President in an acting capacity, say as department head. There may be a possibility of abuse here, right? The rule is, to prevent such abuse, the acting appointment cannot exceed one year. There is no abuse in the present case as President GMA issued ad interim appointments to respondents immediately upon the recess of Congress, way before the lapse of one (1) year.

Matibag v. Benipayo

(380 SCRA 49)

FACTS:

Pres. Arroyo appointed, ad interim, Benipayo as COMELEC chairman, and Borra and yuason as COMELEC Commissioners. The ad interim appointments were submitted to the Commission on Appointments for confirmation, however, CA did not act on said appointments. Pres. Arroyo renewed the ad interim appointments of Benipayo, Borra and Tuason to the same positions.

Benipayo, as COMELEC chairman, issued a Memorandum designating Cinco, Director IV of the EID, as Officer in Charge of EID and re-assigning petitioner, who is a Director III of EID, to the law Dept.

Ptr filed this petition questioning the appointment of Benipayo, Borra and Tuason, claiming that their appointments violate the constitutional provision of the independence of the COMELEC, as well on the prohibitions on temporary appointments and reappointments of its Chairman and Members.

Ptr posits the view that as interim appointment is temporary in character since it can be withdrawn by the President at her pleasure or disapprove or by-passed by the Commission on Appointments.

Issue: WON the ad interim appointments of Benipayo, Borra and Tuason issued by the president amounts to a temporary appointment.

Held: NO. An ad interim appointment is a permanent appointment because it takes effect immediately and can no longer be withdrawn by the President once appointee has qualified into office. The fact that it is subject to confirmation by the CA does not alter the permanent character. The constitution makes an ad interim appointment permanent in character by making it effective until disapproved by the CA or until the next adjournment of Congress.

AD INTERIM APPOINTMENT Permanent and irrevocable except as provided by law:

1. Disapproved of ad interim appointment by the CA

2. Adjournment of Congress without the CA acting on the appointment.

TEMPORARY APPOINTMENT Can be withdrawn or revoked at the pleasure of the appointing power; appointee does not enjoy security of tenure; prohibited by constitution in the 3 independent Consitution Commissions including COMELEC

* Benipayo, et. al. were not appointed or designated in a temporary or acting capacity

Bautista v. Salonga

(172 SCRA 160)

The matter of the appointment of the chair and the commissioners of the Commission on Human Rights need not be subject to the concurrence of Commission on Appointments. In fact, such appointment issued by the President to CHR Chairman Mary Conception-Bautista is already a complete action. It is already an effective valid appointment. It is an appointment solely for the president to take without the participation of Commission on Appointments.

Article VII, Section 16 of the 1987 Constitution The president shall nominate and with the consent of the Commission on Appointments, appoint the heads and officers of the executive department, other public officers, and the officers of the armed forces of the Philippines from the rank of colonel or naval captain, and other officers whose appointments are vested in the president by the Constitution. The first sentence speaks of specific positions in the higher echelons of the government that would require the concurrence of the Commission on Appointments. All other appointments not falling under the enumeration need not pass through said Commission.

COMMISSION ON APPOINTMENTS An office created by the Constitution; independent from Congress although some members may be members of Congress at the same time.

officers whose appointments are vested in the president in the constitution

Q: Who are the officers whose appointments require the concurrence of the Commission on Appointments?1. Those officials mentioned under the 1st sentence of Article 7, Section 16;

2. Chairs and the commissioners of the independent Constitutional Commissions (COA, CSC, COMELEC);

3. The appointments of the members of the Judicial and Bar Council (Article XI, Section 9) EXCEPT the ex- officio members, i.e. Secretary of DOJ;

4. Article 18, Section 7 of the Constitution, the appointment to the position of sectoral representatives in congress.

5. Members of the regional consultative commission Article 10, Section 186. All other offices of the government whose appointments are not otherwise provided for by law or when the law is silent as to who the appointing officer is.

REGULAR APPOINTMENTS

a. Regular Appointment

Under Article VII, Section 16(1) of the Constitution, it is one issued when Congress is in session. This does not take effect immediately. There is a process. Strictly speaking, there is yet no appointment to speak of unless it is acted upon by the Commission on Appointments.

Three stages:

1. Nomination by the President;

2. Submission to the Commission on Appointments for action and concurrence;

3. On the basis of this concurrence, issuance of the appointment by the President.There are 4 groups of officers whom the President shall appoint:

First, the heads of the executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in the Constitution. (This group is appointed with the consent of the Commission on Appointments. The "other officers" referred to are the regular members of the Judicial and Bar Council, the Chairman and members of the CSC, COA and COMELEC, and the members of the Regional Consultative Commission). The appointment of Sectoral Representative, under Sec. 7, Art. XVlll of the Constitution, is with the consent of the Commission on Appointments (Quintos Deles vs. Commission on Appointments, 177 SCRA 259).

Second, all other officers of the Government whose appointments are not otherwise provided for by law.

Third, those whom the President may be authorized by law to appoint.

Fourth, officers lower in rank whose appointments the Congress may by law vest in the President alone. (Sarmiento vs. Mison, 156 SCRA 549)

The President appoints the first group of officers with the consent of the Commission on Appointments. The President appoints the second and third groups of officers without the consent of the Commission. The President appoints the third group of officers if the law is silent on who is the appointing power, or if the law authorizing the head of a department, agency, commission, or board to appoint is declared unconstitutional.

Anent the second group of officers, where there are offices which have to be filled but the law does not provide the process for filling them, the Constitution recognizes the power of the President to fill the office by appointment. There is no incompatibility between the Presidents power of supervision over local governments and autonomous regions, and the power granted to the President, within the specific confines of RA 10153, to appoint OICs (Kida vs. Senate; Mapupuno vs. Brilliantes; Lagman vs. Ochoa, 02/28/12)

Congress cannot by law expand the confirmation powers of the Commission on Appointments and require appointment of other government officials not expressly mentioned in the first sentence of Sec. 16, Art. Vll (Tarrosa vs. Singson, 232 SCRA 555; Calderon vs. Carale, 208 SCRA 254). All other appointments by the President, such as the appointments of a bureau head (Sarmiento vs. Mison), Central Bank Governor (Tarrosa vs. Singson), Chairman and members of the Commission on Human Rights (Baustista vs. Salonga), and Chairman and members of the NLRC (Calderon vs. Carale, 208 SCRA 254), are to be made without the participation of the Commission on Appointments. In Manalo vs. Sistoza (312 SCRA 239), the Court ruled as unconstitutional Sections 26 and 31 of RA 6975 (as amended by RA 8551) [which created the Department of Interior and Local Government] providing that senior officers of the Philippine National Police from Senior Superintendent, Chief Superintendent, Deputy Director General to Director General or Chief of PNP shall be appointed by the President subject to confirmation by the Commission on Appointments. These police officers are not among the public officials whose appointments are required to be confirmed by the first sentence of Article Vll, Section 16 (2002 BQ). Congress, through a law, cannot impose on the President the obligation to appoint automatically the undersecretary as her temporary alter ego. An alter ego, whether temporary or permanent, holds a position of great trust and confidence (Pimentel vs. Ermita, 472 SCRA 589).

Quintos Deles v. Commission on Appointment

(177 SCRA 259)

Ptr Quintos Deles and three (3) others were appointed sectoral representatives by Pres. Aquino pursuant to art. VII, Sec. 16, par. 2 and Art. XVIII, sec. 7 of the constitution.

Said appointees were not able to take their oaths and discharge their duties due to the opposition of some congressmen members of the CA who insisted that the sectoral representative appointments must first be confirmed by CA

Ptr. contended that her appointment as sectoral representative for women does not require confirmation by the CA to qualify her to take her seat in the house of representative

Issue: WON the appointment of a sectoral representative by the pres.

needs the CA confirmation

Held: YES, it needs confirmation. Appointments to offices mentioned in the first sentence of Sec. 16, Art. VII of the constitution require confirmation by the CA. These are:

Heads of the executive departments

Ambassadors

Other public ministers and consuls

Offices of the AFP from the rank of Colonel or Naval Captain

Other offices whose appointments are vested in the Pres. In the constitution

Since the seats reserved for sectoral representatives may be filled by appointment by the President by express provision of Sec. 7, Art. XVIII of the constitution it is clear that sectoral representatives to the house of representative are among the other officers whose appointments are vested in the President in this constitution referred to in the first sentence of Sec. 16, Art. VII.

Nevertheless, these are appointments vested in the President in the constitution which, by express mandate of the constitution, require no confirmation such as appointment of members of the SC and judges of lower courts, and the Ombudsman and his deputies. No such exemption from confirmation had been extended to appointments of sectoral representatives in the constitution.

The President, in a letter had expressly submitted ptrs appointment for confirmation by the CA considering that congress had adjourned without respondent CA having acted on ptrs appointment, said appointment/nomination had become moot and academic pursuant to Sec. 23 of the Rules of CA and unless resubmitted shall not again be considered by the CA

Sarmiento v. Mison

(156 SCRA 549)

FACTS:Ptrs, who are taxpayers, lawyers, members of the IBP and professors of constitution law, seek to enjoin:

1) Respondent Mison from performing functions of the Office of the Commissioner of the Bureau of Customs and

2) Respondent Carague, as Secretary of Department of Budget, from effecting disbursements in payments of Misons salaries and employments, on the ground that Misons appointment is unconstitutional.

Ptrs contended that the appointment is void by reason of its not having been confirmed by CA

Issue: WON the appointment of Mison as Commissioner of the Bureau of Customs needs CA confirmation.

Held: NO, it did not. The position of the 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 CA is required.

While the 1935 constitution includes heads of bureaus among those offices whose appointments need the consent of the CA, the 1987 constitution, on the other hand, deliberately included the position of heads of bureaus from appointments that need the confirmation of the CA.

Also, in Sec. 16, Art. VII of the 1987 constitution, these are offices whose appointments require no confirmation by the CA even if such offices may be higher in rank, compared to some offices whose appointments have to be confirmed by the CA under the first sentence of same provision. Thus appointment of the Central Bank Governor requires no confirmation by the CA even if he is higher in rank than a colonel of the AFP or a consul in the Consular Service.

Tarrosa v. Singson

(232 SCRA 555)

FACTS:

Ptrs, who are taxpayers, lawyers, members of the IBP and professors of constitution law, seek to enjoin:

1. Respondent Mison from performing functions of the Office of the Commissioner of the Bureau of Customs and

3) Respondent Carague, as Secretary of Department of Budget, from effecting disbursements in payments of Misons salaries and employments, on the ground that Misons appointment is unconstitutional.

Ptrs contended that the appointment is void by reason of its not having been confirmed by CA

Issue: WON the appointment of Mison as Commissioner of the Bureau of Customs needs CA confirmation.

Held: NO, it did not. The position of the 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 CA is required.

While the 1935 constitution includes heads of bureaus among those offices whose appointments need the consent of the CA, the 1987 constitution, on the other hand, deliberately included the position of heads of bureaus from appointments that need the confirmation of the CA.

Also, in Sec. 16, Art. VII of the 1987 constitution, these are offices whose appointments require no confirmation by the CA even if such offices may be higher in rank, compared to some offices whose appointments have to be confirmed by the CA under the first sentence of same provision. Thus appointment of the Central Bank Governor requires no confirmation by the CA even if he is higher in rank than a colonel of the AFP or a consul in the Consular Service.

Calderon v. Carale

(208 SCRA 254)

Appointments to the positions of labor arbiter and commissioner in the NLRC do not need the concurrence of the Commission on Appointment, not being one of those enumerated under Art VII, Section 16 of the Constitution

Manalo v. Sistoza

(312 SCRA 239)

The Court ruled as unconstitutional Sections 26 and 31 of RA 6975, as amended by RA 8551, which created the DILG providing that senior officers of the PNP from Senior Superintendent, Chief Superintendent, Deputy Director General to Director General or Chief of PNP shall be appointed by the President subject to confirmation by the Commission on Appointments. These police officers are not among the public officials whose appointments are required to be confirmed by the first sentence of Article VII, Section 16.

De Castro v. JBC

(17 Mar 2010)

Chief Justice Puno retired from the Supreme Court on May 10, 2010 upon reaching the compulsory retirement age of 70. Section 4 (1), Article VIII (Judicial Department) of the Constitution provides that any vacancy in the Supreme Court shall be filled within 90 days from the occurrence thereof. However, Sec. 15, Article VII (Executive Department) of the Constitution prohibits the President from making appointments two (2) months before the next presidential election and up to the end of her term, except appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. Does the prohibition apply to appointment in the Supreme Court?

Held: No. The framers did not intend to extend the prohibition in Section 15, Article VII to the appointment of Members of the Supreme Court. Had they intended to, they could have easily and surely written the prohibition made explicit in Section 15, Article VII as being equally applicable to the appointment of Members of the Supreme Court in Article VIII itself, probably in Section 4 (1), Article VIII. That such specification was not done only reveals that the prohibition against the President or Acting President making appointments within two months before the next presidential elections and up to the end of the Presidents or Acting Presidents term does not refer to the Members of the Supreme Court. The express intent of the framers is to enshrine in the Constitution, a command [to the President] to fill up any vacancy therein within 90 days from its occurrence. The Presidents failure to do so will be a clear disobedience to the Constitution.

In Re: Villanueva

(298 SCRA 408)

FACTS:Villanueva was appointed on 30 March 1998 by the President as presiding judge of the Regional Trial Court, Bago City. He took his oath on May 14, 1998. However, May 8, 1998 was presidential elections and Sec. 15 of Art. VII of the Constitution prohibits the President from making appointments 2 months before the next presidential elections and up to the end of his term. Also, Sec. 9 of Art. VIII states that vacancies in lower courts shall be filled by the President within 90 days from the submission of the list of at least 3 nominees by the Judicial and Bar Council, while Sec. 4 of the same Article provides that the President shall fill in vacancies in the Supreme Court within 90 days from their occurrence. Is Villanuevas appointment valid?

Held: It is null and void. Two months immediately before the next presidential elections and up to the end of his term, the President is not required or allowed to make appointments. Under Sec. 4 and Sec. 9 of Art. VIII, the President is required to fill vacancies in the judiciary within the time frames provided unless it is prohibited by Sec. 15, Art. VII. The prohibition on appointments comes into effect only every six years. The prevention of vote-buying through appointments and similar evils outweigh the need of avoiding delays in filling up vacancies or the disposition of cases. Temporary vacancies follow the period of the ban, while prohibited appointments are long lasting in their effects.

Rufino v. Endriga

(496 SCRA 16)

Then Pres. Marcos issued an EO creating CCP governed by seven (7) members of the Board of trustees to preserve and promote Philippine culture. During Pres. Ramos term, the CCP Board included the Endriga group. Then, during Pres. Estradas term, he appointed 7 new trustees for term of 4 years to replace the Endriga group.

Endriga-group petition for quo warranto Sec. 6 (b) of PD 15: unconscious in the CCP Board shall be filled by election by a vote of a majority of the trustees and in case only 1 trustee survives, vacancies shall be filled by the surviving trusteein consultation with the ranking officers of the CCP. It is only when the CCP Board is entirely vacant may president fill such vacancies. When pres. Estrada appointed the Rufino group, only 1 seat was vacant.

Rufino Group Law could only delegate to the CCP Board power to appoint officers(never in rank than the trustees of the board). Law may not validly confer on the CCP trustees, for the latter are officers of equal rank and not of cover rank.

Sec. 6 (b) of PD 15 should be declared unconstitutional being repugnant to Sec. 16, Art. VII of the constitution allowing appointment of Officers lower in rank than the appointing power.

Issue: WON President has the power to appoint members of the CCP Board of Trustess

Held: YES. The inferior or lower in rank officers referred to in Sec. 16, Art. VII are the subordinates of the heads of departments agencies, commissions or boards who are vested by law with the power to appoint this excludes a situation where appointing officer appoints an officer equal in rank as him.

CCP is part of the executive branch, thus President exercises control over the CCP.

Sec. 6 (b) and (c) of PD 15 is unconstitutional, violates Sec. 16, Art. VII of 1987 constitution.

No law can cut off the Presidents control over the CCP in the guise of insulating the CCP from Presidents influence. By stating that the President shall have control of all the executive offices, the 1987 constitution empowers the President not only to influence but even to control all offices in the executive branch.

NOTES:

Under Sec. 16, Art. VII of the Constitution, there is a fourth group of lower-ranked officers whose appointments Congress may by law vest in the heads of departments, agencies, commissions, or boards. The clear intent is that these inferior or lower in rank officers are the subordinates of the heads of departments, agencies, commissions, or boards who are vested by law with the power to appoint this excludes a situation where the appointing officer appoints an officer equal in rank as him. The law may not also authorize officers other than the heads of the agency, commission, or their fellow trustees for the effect is the same, which is to fill vacancies in the CCP Board. A statute cannot circumvent the constitutional limitations on the power to appoint by filling vacancies in a public office through election by the co-workers in that office (ibid). Since the President exercises control over all the executive departments, bureaus, and offices, the President necessarily exercises control over the CCP which is an office of the Executive Branch. Sec. 3 of PD 15 stating that the CCP shall enjoy autonomy of policy and operation may give the CCP Board a free hand in initiating and formulating polcies and undertaking activities, but ultimately these policies and activities are all subject to the Presidents power and control. Thus, the Chairman of the Cultural Center of the Philippines (CCP) board is the head of the CCP who may be vested by law, under Sec. 16, Art. VII of the Constitution, with the power to appoint lower-ranked officers of the CCP (Rufino vs.Endriga, 496 SCRA 16). Insofar as it authorizes the trustees of the CCP Board to elect their co-trustees, Section 6(b) and (c) of PD 15 is unconstitutional because it violates Sec. 16, Art. VII of the Constitution.

MODES OF TERMINATING OFFICIAL RELATIONS

1. Abandonment of an office

2. Abolition of office

3. Acceptance of another office incompatible with the first

4. Conviction of a crime

5. Death

6. Expiration of term or tenure

7. Failure to assume elective office within six (6) months from proclamation

8. Filing of Certificate of Candidacy

9. Impeachment

10. Prescription of the right to office

11. Reaching the age limit

12. Recall

13. Removal

14. Resignation

1. ABOLITION OF OFFICEAbolition of Office neither means removal or separation from office and is not covered by the protection of the security of tenure in the Constitution. This principle however carries with it a caveat. The abolition must be done in good faith (Gingson vs. Murcia, 08 February 1988), not for political or personal reasons, or in order to circumvent the constitutional security of tenure of civil service employees (Canonizado vs. Aguirre, 323 SCRA 312). Abolition which merely changes the nomenclature of positions is invalid and does not result in the removal of the incumbent (Dario vs. Mison, 176 SCRA 84). The renaming and restructuring of the PGH and its component units cannot give rise to a valid and bona fide abolition of the position of PGH Director; this is because where the abolished office and the offices created in its place have similar functions, the abolition lacks good faith (Guerrero vs. Arizabal, 186 SCRA 108). A recognized cause for termination of employment of a government employee is the abolition by law of his office as a result of reorganization carried out by reasons of economy or to remove redundancy of functions, or clear and explicit constitutional mandate for such termination of employment (Reyes vs. Drilon). The removal of petitioners pursuant to RA 6715 which declared vacant the positions of the Commissioners, Executive Labor Arbiters and Labor Arbiters of the NLRC and provided for the removal of the incumbents upon the appointment and qualification of their successors was unconstitutional; RA 6715 did not expressly or impliedly abolish the offices of petitioners, there being no irreconcilable inconsistency in the nature, duties and functions of the petitioners offices under the old law and the new law (Mayor vs. Macaraeg, 194 SCRA 672). The change in the NLRCs nature -- that is, the NLRC prior to the passage of the amendatory law was considered an integral part of the DOLE, while the new law (RA 6715) changed that by declaring the NLRC attached to the DOLE for program coordination only was not sufficient to justify a conclusion that the new law abolished the offices of the labor commissioners (supra).

Requisites:

1. Made in good faith

2. With clear intent to do away with the office

3. Must not be implemented in a manner contrary to law

Valid abolition:

1. By reason of economy

2. By reason of redundancy of functions where there are already two or more positions performing the same duties or that there is an overlapping functions

3. It is within the legal competence of the city council to create, consolidate and reorganize city offices and positions wholly supported by local funds unless there is no showing that legitimate structural changes have been made

Invalid abolition:

1. For personal or political reasons

2. Constitutional offices with special immunity as regards salary and nature, cannot be abolished by Congress

3. No law shall be passed reorganizing the judiciary when it undermines the security of tenure of its members (Article VIII, Section 2 of the Constitution)

Dario v. Mison

(176 SCRA 84)

Reorganization is valid when done in good faith. A reorganization in good faith if it is for purpose of economy or make bureaucracy more efficient. If so, there is no dismissal since the position itself ceases to exist. But if the abolition is for political reason or to defeat security of tenure, or there is mere change of nomenclature of positions, the abolition is void. Here, no actual reorgasnization took place, i.e. reduction of personnel, consolidation of offices or abolition for the purpose of economy, or redundancy of functions, but a simple revamp of personnel.

You have here the Deputy Customs Commissioner Dario who was separated from service on the basis of the regimentation effected by the President thru the Bureau of Customs Commissioner. Here, there were about 394 employees who were separated. However, in place of these 394 positions abolished, about 532 new employees were appointed. Abolition which merely changes the nomenclature of positions is invalid and does not result in the removal of the incumbent. So clearly, this would negate a bona fide regimentation or a valid abolition. Clearly, those officers who were separated by reason of this regimentation effected in the Bureau of Customs were illegally dismissed from the service in violation of their security of tenure.

Gingson v. Murcia

(08 Feb 1988)

Facts: You have here the respondent municipality of Murcia, Negros Occidental. There was a supposed regimentation/reorganization effected by that municipality and in the process, petitioner Angel Gingson, municipal dentist, was separated from the service. The reason in abolishing the position of municipal dentist was allegedly due to the lack of municipal funds. But what happened here was that in fact, there were new positions created and the municipal budget increased and not decreased.

Issue: WON the abolition, based on the Municipalities state of finances, is valid.

Held: NO. It is true that abolition of office neither means removal nor separation from office and is not covered by the protection of security. However, such abolition must be done in good faith. In this case, good faith is absent.

The court is convinced that the municipality was financially capable of continued support to petitioner in office. At that time, it had no excuse to effect the questioned dismissal. It was also found out that the municipality had, in the same period, approved salary increases to some 31 employees and extended appointments to 6 employees.

Certainly, this negates whatever claim of good faith. So clearly, this violated the security of tenure of this officer. Indeed, there was illegal dismissal. Petitioner ought to be reinstated and if his position is no longer available, then there must be payment of back salaries during the period that he was deprived of the position. But in no case shall the recovery of backwages exceed more than 5 years.Guerrero v. Arizabal

(186 SCRA 109)

Facts:

Pursuant to Proclamation No. 3 by Pres. Aquino, EO 128 was enacted.

Sec. 35 d of the EO provides for the abolition of Science Promotion Institute, a regular line agency of DOST.

Ptr. Guerrero, Director of SPI, assailed his termination and seeks reinstatement. He file the petition on the ground of violation of his security of tenure.

Issue:

WON the abolition is valid

Held: