REYNALDO R. SAN JUAN, petitioner, vs.CIVIL SERVICE COMMISSION, DEPARTMENT OF BUDGET AND MANAGEMENT and CECILIA ALMAJOSE,respondents.

GUTIERREZ, JR., J.:p

In this petition for certiorari pursuant to Section 7, Article IX (A) of the present Constitution, the petitioner Governor of the Province of Rizal, prays for the nullification of Resolution No. 89-868 of the Civil Service Commission (CSC) dated November 21, 1989 and its Resolution No. 90-150 dated February 9, 1990.

The dispositive portion of the questioned Resolution reads:

WHEREFORE, foregoing premises considered, the Commission resolved to dismiss, as it hereby dismisses the appeal of Governor Reynaldo San Juan of Rizal. Accordingly, the approved appointment of Ms. Cecilia Almajose as Provincial Budget Officer of Rizal, is upheld. (Rollo, p. 32)

The subsequent Resolution No. 90-150 reiterates CSC's position upholding the private respondent's appointment by denying the petitioner's motion for reconsideration for lack of merit.

The antecedent facts of the case are as follows:

On March 22, 1988, the position of Provincial Budget Officer (PBO) for the province of Rizal was left vacant by its former holder, a certain Henedima del Rosario.

In a letter dated April 18, 1988, the petitioner informed Director Reynaldo Abella of the Department of Budget and Management (DBM) Region IV that Ms. Dalisay Santos assumed office as Acting PBO since March 22, 1988 pursuant to a Memorandum issued by the petitioner who further requested Director Abella to endorse the appointment of the said Ms. Dalisay Santos to the contested position of PBO of Rizal. Ms. Dalisay Santos was then Municipal Budget Officer of Taytay, Rizal before she discharged the functions of acting PBO.

In a Memorandum dated July 26, 1988 addressed to the DBM Secretary, then Director Abella of Region IV recommended the appointment of the private respondent as PBO of Rizal on the basis of a comparative study of all Municipal Budget Officers of the said province which included three nominees of the petitioner. According to Abella, the private respondent was the most qualified since she was the only Certified Public Accountant among the contenders.

On August 1, 1988, DBM Undersecretary Nazario S. Cabuquit, Jr. signed the appointment papers of the private respondent as PBO of Rizal upon the aforestated recommendation of Abella.

In a letter dated August 3, 1988 addressed to Secretary Carague, the petitioner reiterated his request for the appointment of Dalisay Santos to the contested position unaware of the earlier appointment made by Undersecretary Cabuquit.

On August 31, 1988, DBM Regional Director Agripino G. Galvez wrote the petitioner that Dalisay Santos and his other recommendees did not meet the minimum requirements under Local Budget Circular No. 31 for the position of a local budget officer. Director Galvez whether or not

through oversight further required the petitioner to submit at least three other qualified nominees who are qualified for the position of PBO of Rizal for evaluation and processing.

On November 2, 1988, the petitioner after having been informed of the private respondent's appointment wrote Secretary Carague protesting against the said appointment on the grounds that Cabuquit as DBM Undersecretary is not legally authorized to appoint the PBO; that the private respondent lacks the required three years work experience as provided in Local Budget Circular No. 31; and that under Executive Order No. 112, it is the Provincial Governor, not the Regional Director or a Congressman, who has the power to recommend nominees for the position of PBO.

On January 9, 1989 respondent DBM, through its Director of the Bureau of Legal & Legislative Affairs (BLLA) Virgilio A. Afurung, issued a Memorandum ruling that the petitioner's letter-protest is not meritorious considering that public respondent DBM validly exercised its prerogative in filling-up the contested position since none of the petitioner's nominees met the prescribed requirements.

On January 27, 1989, the petitioner moved for a reconsideration of the BLLA ruling.

On February 28, 1989, the DBM Secretary denied the petitioner's motion for reconsideration.

On March 27, 1989, the petitioner wrote public respondent CSC protesting against the appointment of the private respondent and reiterating his position regarding the matter.

Subsequently, public respondent CSC issued the questioned resolutions which prompted the petitioner to submit before us the following assignment of errors:

A. THE CSC ERRED IN UPHOLDING THE APPOINTMENT BY DBM ASSISTANT SECRETARY CABUQUIT OF CECILIA ALMAJOSE AS PBO OF RIZAL.

B. THE CSC ERRED IN HOLDING THAT CECILIA ALMA JOSE POSSESSES ALL THE REQUIRED QUALIFICATIONS.

C. THE CSC ERRED IN DECLARING THAT PETITIONER'S NOMINEES ARE NOT QUALIFIED TO THE SUBJECT POSITION.

D. THE CSC AND THE DBM GRAVELY ABUSED THEIR DISCRETION IN NOT ALLOWING PETITIONER TO SUBMIT NEW NOMINEES WHO COULD MEET THE REQUIRED QUALIFICATION (Petition, pp. 7-8, Rollo, pp. 15-16)

All the assigned errors relate to the issue of whether or not the private respondent is lawfully entitled to discharge the functions of PBO of Rizal pursuant to the appointment made by public respondent DBM's Undersecretary upon the recommendation of then Director Abella of DBM Region IV.

The petitioner's arguments rest on his contention that he has the sole right and privilege to recommend the nominees to the position of PBO and that the appointee should come only from his nominees. In support thereof, he invokes Section 1 of Executive Order No. 112 which provides that:

Sec. 1. All budget officers of provinces, cities and municipalities shall be appointed henceforth by the Minister of Budget and Management upon recommendation of the local chief executive concerned, subject to civil service law, rules and regulations, and they shall be placed under the administrative control and technical supervision of the Ministry of Budget and Management.

The petitioner maintains that the appointment of the private respondent to the contested position was made in derogation of the provision so that both the public respondents committed grave abuse of discretion in upholding Almajose's appointment.

There is no question that under Section 1 of Executive Order No. 112 the petitioner's power to recommend is subject to the qualifications prescribed by existing laws for the position of PBO. Consequently, in the event that the recommendations made by the petitioner fall short of the required standards, the appointing authority, the Minister (now Secretary) of public respondent DBM is expected to reject the same.

In the event that the Governor recommends an unqualified person, is the Department Head free to appoint anyone he fancies ? This is the issue before us.

Before the promulgation of Executive Order No. 112 on December 24, 1986, Batas Pambansa Blg. 337, otherwise known as the Local Government Code vested upon the Governor, subject to civil service rules and regulations, the power to appoint the PBO (Sec. 216, subparagraph (1), BP 337). The Code further enumerated the qualifications for the position of PBO. Thus, Section 216, subparagraph (2) of the same code states that:

(2) No person shall be appointed provincial budget officer unless he is a citizen of the Philippines, of good moral character, a holder of a degree preferably in law, commerce, public administration or any related course from a recognized college or university, a first grade civil service eligibility or its equivalent, and has acquired at least five years experience in budgeting or in any related field.

The petitioner contends that since the appointing authority with respect to the Provincial Budget Officer of Rizal was vested in him before, then, the real intent behind Executive Order No. 112 in empowering him to recommend nominees to the position of Provincial Budget Officer is to make his recommendation part and parcel of the appointment process. He states that the phrase "upon recommendation of the local chief executive concerned" must be given mandatory application in consonance with the state policy of local autonomy as guaranteed by the 1987 Constitution under Art. II, Sec. 25 and Art. X, Sec. 2 thereof. He further argues that his power to recommend cannot validly be defeated by a mere administrative issuance of public respondent DBM reserving to itself the right to fill-up any existing vacancy in case the petitioner's nominees do not meet the qualification requirements as embodied in public respondent DBM's Local Budget Circular No. 31 dated February 9, 1988.

The questioned ruling is justified by the public respondent CSC as follows:

As required by said E.O. No. 112, the DBM Secretary may choose from among the recommendees of the Provincial Governor who are thus qualified and eligible for appointment to the position of the PBO of Rizal. Notwithstanding, the recommendation of the local chief executive is merely directory and not a condition sine qua non to the exercise by the Secretary of DBM of his appointing prerogative. To rule otherwise would in effect give

the law or E.O. No. 112 a different interpretation or construction not intended therein, taking into consideration that said officer has been nationalized and is directly under the control and supervision of the DBM Secretary or through his duly authorized representative. It cannot be gainsaid that said national officer has a similar role in the local government unit, only on another area or concern, to that of a Commission on Audit resident auditor. Hence, to preserve and maintain the independence of said officer from the local government unit, he must be primarily the choice of the national appointing official, and the exercise thereof must not be unduly hampered or interfered with, provided the appointee finally selected meets the requirements for the position in accordance with prescribed Civil Service Law, Rules and Regulations. In other words, the appointing official is not restricted or circumscribed to the list submitted or recommended by the local chief executive in the final selection of an appointee for the position. He may consider other nominees for the position vis a vis the nominees of the local chief executive. (CSC Resolution No. 89-868, p. 2;Rollo, p. 31)

The issue before the Court is not limited to the validity of the appointment of one Provincial Budget Officer. The tug of war between the Secretary of Budget and Management and the Governor of the premier province of Rizal over a seemingly innocuous position involves the application of a most important constitutional policy and principle, that of local autonomy. We have to obey the clear mandate on local autonomy. Where a law is capable of two interpretations, one in favor of centralized power in Malacañang and the other beneficial to local autonomy, the scales must be weighed in favor of autonomy.

The exercise by local governments of meaningful power has been a national goal since the turn of the century. And yet, inspite of constitutional provisions and, as in this case, legislation mandating greater autonomy for local officials, national officers cannot seem to let go of centralized powers. They deny or water down what little grants of autonomy have so far been given to municipal corporations.

President McKinley's Instructions dated April 7, 1900 to the Second Philippine Commission ordered the new Government "to devote their attention in the first instance to the establishment of municipal governments in which natives of the Islands, both in the cities and rural communities, shall be afforded the opportunity to manage their own local officers to the fullest extent of which they are capable and subject to the least degree of supervision and control which a careful study of their capacities and observation of the workings of native control show to be consistent with the maintenance of law, order and loyalty.

In this initial organic act for the Philippines, the Commission which combined both executive and legislative powers was directed to give top priority to making local autonomy effective.

The 1935 Constitution had no specific article on local autonomy. However, in distinguishing between presidential control and supervision as follows:

The President shall have control of all the executive departments, bureaus, or offices, exercise general supervision over all local governments as may be provided by law, and take care that the laws be faithfully executed. (Sec. 11, Article VII, 1935 Constitution)

the Constitution clearly limited the executive power over local governments to "general supervision . . . as may be provided by law." The President controls the executive departments. He has no such power over local governments. He has only supervision and that supervision is both general and circumscribed by statute.

In Tecson v. Salas, 34 SCRA 275, 282 (1970), this Court stated:

. . . Hebron v. Reyes, (104 Phil. 175 [1958]) with the then Justice, now Chief Justice, Concepcion as the ponente, clarified matters. As was pointed out, the presidential competence is not even supervision in general, but general supervision as may be provided by law. He could not thus go beyond the applicable statutory provisions, which bind and fetter his discretion on the matter. Moreover, as had been earlier ruled in an opinion penned by Justice Padilla in Mondano V. Silvosa, (97 Phil. 143 [1955]) referred to by the present Chief Justice in his opinion in the Hebron case, supervision goes no further than "overseeing or the power or authority of an officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them the former may take such action or step as prescribed by law to make them perform their duties." (Ibid, pp. 147-148) Control, on the other hand, "means the power of an officer to alter or modify or nullify or set aside what a subordinate had done in the performance of their duties and to substitute the judgment of the former for that of the latter." It would follow then, according to the present Chief Justice, to go back to the Hebron opinion, that the President had to abide by the then provisions of the Revised Administrative Code on suspension and removal of municipal officials, there being no power of control that he could rightfully exercise, the law clearly specifying the procedure by which such disciplinary action would be taken.

Pursuant to this principle under the 1935 Constitution, legislation implementing local autonomy was enacted. In 1959, Republic Act No. 2264, "An Act Amending the Law Governing Local Governments by Increasing Their Autonomy and Reorganizing Local Governments" was passed. It was followed in 1967 when Republic Act No. 5185, the Decentralization Law was enacted, giving "further autonomous powers to local governments governments."

The provisions of the 1973 Constitution moved the country further, at least insofar as legal provisions are concerned, towards greater autonomy. It provided under Article II as a basic principle of government:

Sec. 10. The State shall guarantee and promote the autonomy of local government units, especially the barangay to ensure their fullest development as self-reliant communities.

An entire article on Local Government was incorporated into the Constitution. It called for a local government code defining more responsive and accountable local government structures. Any creation, merger, abolition, or substantial boundary alteration cannot be done except in accordance with the local government code and upon approval by a plebiscite. The power to create sources of revenue and to levy taxes was specifically settled upon local governments.

The exercise of greater local autonomy is even more marked in the present Constitution.

Article II, Section 25 on State Policies provides:

Sec. 25. The State shall ensure the autonomy of local governments

The 14 sections in Article X on Local Government not only reiterate earlier doctrines but give in greater detail the provisions making local autonomy more meaningful. Thus, Sections 2 and 3 of Article X provide:

Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.

Sec. 3. The Congress shall enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the different local government units their powers, responsibilities, and resources, and provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units.

When the Civil Service Commission interpreted the recommending power of the Provincial Governor as purely directory, it went against the letter and spirit of the constitutional provisions on local autonomy. If the DBM Secretary jealously hoards the entirety of budgetary powers and ignores the right of local governments to develop self-reliance and resoluteness in the handling of their own funds, the goal of meaningful local autonomy is frustrated and set back.

The right given by Local Budget Circular No. 31 which states:

Sec. 6.0 — The DBM reserves the right to fill up any existing vacancy where none of the nominees of the local chief executive meet the prescribed requirements.

is ultra vires and is, accordingly, set aside. The DBM may appoint only from the list of qualified recommendees nominated by the Governor. If none is qualified, he must return the list of nominees to the Governor explaining why no one meets the legal requirements and ask for new recommendees who have the necessary eligibilities and qualifications.

The PBO is expected to synchronize his work with DBM. More important, however, is the proper administration of fiscal affairs at the local level. Provincial and municipal budgets are prepared at the local level and after completion are forwarded to the national officials for review. They are prepared by the local officials who must work within the constraints of those budgets. They are not formulated in the inner sanctums of an all-knowing DBM and unilaterally imposed on local governments whether or not they are relevant to local needs and resources. It is for this reason that there should be a genuine interplay, a balancing of viewpoints, and a harmonization of proposals from both the local and national officials. It is for this reason that the nomination and appointment process involves a sharing of power between the two levels of government.

It may not be amiss to give by way of analogy the procedure followed in the appointments of Justices and Judges. Under Article VIII of the Constitution, nominations for judicial positions are made by the Judicial and Bar Council. The President makes the appointments from the list of nominees submitted to her by the Council. She cannot apply the DBM procedure, reject all the Council nominees, and appoint another person whom she feels is better qualified. There can be no reservation of the right to fill up a position with a person of the appointing power's personal choice.

The public respondent's grave abuse of discretion is aggravated by the fact that Director Galvez required the Provincial Governor to submit at least three other names of nominees better qualified than his earlier recommendation. It was a meaningless exercise. The appointment of the private respondent was formalized before the Governor was extended the courtesy of being informed that his nominee had been rejected. The complete disregard of the local government's prerogative and the smug belief that the DBM has absolute wisdom, authority, and discretion are manifest.

In his classic work "Philippine Political Law" Dean Vicente G. Sinco stated that the value of local governments as institutions of democracy is measured by the degree of autonomy that they enjoy. Citing Tocqueville, he stated that "local assemblies of citizens constitute the strength of free nations. . . . A people may establish a system of free government but without the spirit of municipal institutions, it cannot have the spirit of liberty." (Sinco, Philippine Political Law, Eleventh Edition, pp. 705-706).

Our national officials should not only comply with the constitutional provisions on local autonomy but should also appreciate the spirit of liberty upon which these provisions are based.

WHEREFORE, the petition is hereby GRANTED. The questioned resolutions of the Civil Service Commission are SET ASIDE. The appointment of respondent Cecilia Almajose is nullified. The Department of Budget and Management is ordered to appoint the Provincial Budget Officer of Rizal from among qualified nominees submitted by the Provincial Governor.

ROBERTO A. FLORES, DANIEL Y. FIGUEROA, ROGELIO T. PALO, DOMINGO A. JADLOC, CARLITO T. CRUZ and MANUEL P. REYES, petitioner, vs.HON. FRANKLIN M. DRILON, Executive Secretary, and RICHARD J. GORDON, respondents. 

BELLOSILLO, J.:

The constitutionality of Sec. 13, par. (d), of R.A. 7227, 1 otherwise known as the "Bases Conversion and Development Act of 1992," under which respondent Mayor Richard J. Gordon of Olongapo City was appointed Chairman and Chief Executive Officer of the Subic Bay Metropolitan Authority (SBMA), is challenged in this original petition with prayer for prohibition, preliminary injunction and temporary restraining order "to prevent useless and unnecessary expenditures of public funds by way of salaries and other operational expenses attached to the office . . . ." 2 Paragraph (d) reads —

(d) Chairman administrator — The President shall appoint a professional manager as administrator of the Subic Authority with a compensation to be determined by the Board subject to the approval of the Secretary of Budget, who shall be the ex oficio chairman of the Board and who shall serve as the chief executive officer of the Subic Authority: Provided, however, That for the first year of its operations from the effectivity of this Act, the mayor of the City of Olongapo shall be appointed as the chairman and chief executive officer of the Subic Authority (emphasis supplied).

Petitioners, who claim to be taxpayers, employees of the U.S. Facility at the Subic, Zambales, and officers and members of the Filipino Civilian Employees Association in U.S. Facilities in the Philippines, maintain that theproviso in par. (d) of Sec. 13 herein-above quoted in italics infringes on the following constitutional and statutory provisions: (a) Sec. 7, first par., Art. IX-B, of the Constitution, which states that "[n]o elective official shall be eligible for appointment or designation in any capacity to any public officer or position during his tenure," 3 because the City Mayor of Olongapo City is an elective official and the subject posts are public offices; (b) Sec. 16, Art. VII, of the Constitution, which provides that "[t]he President shall . . . . appoint all other officers of the Government whose appointments are not otherwise provided  for by law, and those whom he may be authorized by law to appoint", 4 since it was Congress through the questioned proviso and not the President who appointed the Mayor to the subject posts; 5 and, (c) Sec. 261, par. (g), of the Omnibus Election Code, which says:

Sec. 261. Prohibited Acts. — The following shall be guilty of an election offense: . . . (g) Appointment of new employees, creation of new position, promotion, or giving salary increases. — During the period of forty-five days before a regular election and thirty days before a special election, (1) any head, official or appointing officer of a government office, agency or instrumentality, whether national or local, including government-owned or controlled corporations, who appoints or hires any new employee, whether provisional, temporary or casual, or creates and fills any new position, except upon prior authority of the Commission. The Commission shall not grant the authority sought unless it is satisfied that the position to be filled is essential to the proper functioning of the office or agency concerned, and that the position shall not be filled in a manner that may influence the election. As an exception to the foregoing provisions, a new employee may be appointed in case of urgent need:Provided, however, That notice of the appointment shall be given to the Commission within three days from the date of the appointment. Any appointment or hiring in violation of this provision shall be null and void. (2) Any government official who promotes, or gives any increase of salary or remuneration or privilege to any government official or employee, including those in government-owned or controlled corporations . . . .

for the reason that the appointment of respondent Gordon to the subject posts made by respondent Executive Secretary on 3 April 1992 was within the prohibited 45-day period prior to the 11 May 1992 Elections.

The principal question is whether the proviso  in Sec. 13, par. (d), of R.A. 7227 which states, "Provided, however,That for the first year of its operations from the effectivity of this Act, the mayor of the City of Olongapo shall be appointed as the chairman and chief executive officer of the Subic Authority," violates the constitutional proscription against appointment or designation of elective officials to other government posts.

In full, Sec. 7 of Art. IX-B of the Constitution provides:

No elective official shall be eligible for appointment or designation in any capacity to any public office or position during his tenure.

Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries.

The section expresses the policy against the concentration of several public positions in one person, so that a public officer or employee may serve full-time with dedication and thus be efficient in the delivery of public services. It is an affirmation that a public office is a full-time job. Hence, a public officer or employee, like the head of an executive department described in Civil Liberties Union v. Executive Secretary, G.R. No. 83896, and Anti-Graft League of the Philippines, Inc. v. Philip Ella C. Juico, as Secretary of Agrarian Reform, G.R. No. 83815, 6 ". . . . should be allowed to attend to his duties and responsibilities without the distraction of other governmental duties or employment. He should be precluded from dissipating his efforts, attention and energy among too many positions of responsibility, which may result in haphazardness and inefficiency . . . ."

Particularly as regards the first paragraph of Sec. 7, "(t)he basic idea really is to prevent a situation where a local elective official will work for his appointment in an executive position in government, and thus neglect his constituents . . . ." 7

In the case before us, the subject proviso directs the President to appoint an elective official, i.e., the Mayor of Olongapo City, to other government posts (as Chairman of the Board and Chief Executive Officer of SBMA). Since this is precisely what the constitutional proscription seeks to prevent, it needs no stretching of the imagination to conclude that the proviso contravenes Sec. 7, first par., Art. IX-B, of the Constitution. Here, the fact that the expertise of an elective official may be most beneficial to the higher interest of the body politic is of no moment.

It is argued that Sec. 94 of the Local Government Code (LGC) permits the appointment of a local elective official to another post if so allowed by law or by the primary functions of his office. 8 But, the contention is fallacious. Section 94 of the LGC is not determinative of the constitutionality of Sec. 13, par. (d), of R.A. 7227, for no legislative act can prevail over the fundamental law of the land. Moreover, since the constitutionality of Sec. 94 of LGC is not the issue here nor is that section sought to be declared unconstitutional, we need not rule on its validity. Neither can we invoke a practice otherwise unconstitutional as authority for its validity.

In any case, the view that an elective official may be appointed to another post if allowed by law or by the primary functions of his office, ignores the clear-cut difference in the wording of the two (2) paragraphs of Sec. 7, Art. IX-B, of the Constitution. While the second paragraph authorizes holding of multiple offices by an appointive official when allowed by law or by the primary functions of his position, the first

paragraph appears to be more stringent by not providing any exception to the rule against appointment or designation of an elective official to the government post, except as are particularly recognized in the Constitution itself, e.g., the President as head of the economic and planning agency; 9 the Vice-President, who may be appointed Member of the Cabinet; 10 and, a member of Congress who may be designated ex officio member of the Judicial and Bar Council. 11

The distinction between the first and second paragraphs of Sec. 7, Art. IX-B, was not accidental when drawn, and not without reason. It was purposely sought by the drafters of the Constitution as shown in their deliberation, thus —

MR. MONSOD. In other words, what then Commissioner is saying, Mr. Presiding Officer, is that the prohibition is more strict with respect to elective officials, because in the case of appointive officials, there may be a law that will allow them to hold other positions.

MR. FOZ. Yes, I suggest we make that difference, because in the case of appointive officials, there will be certain situations where the law should allow them to hold some other positions. 12

The distinction being clear, the exemption allowed to appointive officials in the second paragraph cannot be extended to elective officials who are governed by the first paragraph.

It is further argued that the SBMA posts are merely ex officio  to the position of Mayor of Olongapo City, hence, an excepted circumstance, citing Civil Liberties Union v. Executive Secretary, 13 where we stated that the prohibition against the holding of any other office or employment by the President, Vice-President, Members of the Cabinet, and their deputies or assistants during their tenure, as provided  in Sec. 13, Art. VII, of the Constitution, does not comprehend additional duties and functions required by the primary functions of the officials concerned, who are to perform them in an ex officio capacity as provided by law, without receiving any additional compensation therefor.

This argument is apparently based on a wrong premise. Congress did not contemplate making the subject SBMA posts as ex officio or automatically attached to the Office of the Mayor of Olongapo City without need of appointment. The phrase "shall be appointed" unquestionably shows the intent to make the SBMA posts appointive and not merely adjunct to the post of Mayor of Olongapo City. Had it been the legislative intent to make the subject positions ex officio, Congress would have, at least, avoided the word "appointed" and, instead, "ex officio" would have been used. 14

Even in the Senate deliberations, the Senators were fully aware that subject proviso may contravene Sec. 7, first par., Art. IX-B, but they nevertheless passed the bill and decided to have the controversy resolved by the courts. Indeed, the Senators would not have been concerned with the effects of Sec. 7, first par., had they considered the SBMA posts as ex officio.

Cognizant of the complication that may arise from the way the subject proviso was stated, Senator Rene Saguisag remarked that "if the Conference Committee just said "the Mayor shall be the Chairman" then that should foreclose the issue. It is a legislative choice." 15 The Senator took a view that the constitutional proscription against appointment of elective officials may have been sidestepped if Congress attached the SBMA posts to the Mayor of Olongapo City instead of directing the President to appoint him to the post. Without passing upon this view of Senator Saguisag, it suffices to state that Congress intended the posts to be appointive, thus nibbling in the bud the argument that they are ex officio.

The analogy with the position of Chairman of the Metro Manila Authority made by respondents cannot be applied to uphold the constitutionality of the challenged proviso since it is not put in issue in the present case. In the same vein, the argument that if no elective official may be appointed or designated to another post then Sec. 8, Art. IX-B, of the Constitution allowing him

to receive double compensation 16 would be useless, is non sequitur since Sec. 8 does not affect the constitutionality of the subject proviso. In any case, the Vice-President for example, an elective official who may be appointed to a cabinet post under Sec. 3, Art. VII, may receive the compensation attached to the cabinet position if specifically authorized by law.

Petitioners also assail the legislative encroachment on the appointing authority of the President. Section 13, par. (d), itself vests in the President the power to appoint the Chairman of the Board and the Chief Executive Officer of SBMA, although he really has no choice under the law but to appoint the Mayor of Olongapo City.

As may be defined, an "appointment" is "[t]he designation of a person, by the person or persons having authority therefor, to discharge the duties of some office or trust," 17 or "[t]he selection or designation of a person, by the person or persons having authority therefor, to fill an office or public function and discharge the duties of the same. 18 In his treatise,Philippine Political Law, 19 Senior Associate Justice Isagani A. Cruz defines appointment as "the selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office."

Considering that appointment calls for a selection, the appointing power necessarily exercises a discretion. According to Woodbury, J., 20 "the choice of a person to fill an office constitutes the essence of his appointment," 21 and Mr. Justice Malcolm adds that an "[a]ppointment to office is intrinsically an executive act involving the exercise of discretion."22 In Pamantasan ng Lungsod ng Maynila v. Intermediate Appellate Court  23 we held:

The power to appoint is, in essence, discretionary. The appointing power has the right of choice which he may exercise freely according to his judgment, deciding for himself who is best qualified among those who have the necessary qualifications and eligibilities. It is a prerogative of the appointing power . . . .

Indeed, the power of choice is the heart of the power to appoint. Appointment involves an exercise of discretion of whom to appoint; it is not a ministerial act of issuing appointment papers to the appointee. In other words, the choice of the appointee is a fundamental component of the appointing power.

Hence, when Congress clothes the President with the power to appoint an officer, it (Congress) cannot at the same time limit the choice of the President to only one candidate. Once the power of appointment is conferred on the President, such conferment necessarily carries the discretion of whom to appoint. Even on the pretext of prescribing the qualifications of the officer, Congress may not abuse such power as to divest the appointing authority, directly or indirectly, of his discretion to pick his own choice. Consequently, when the qualifications prescribed by Congress can only be met by one individual, such enactment effectively eliminates the discretion of the appointing power to choose and constitutes an irregular restriction on the power of appointment. 24

In the case at bar, while Congress willed that the subject posts be filled with a presidential appointee for the first year of its operations from the effectivity of R.A. 7227, the proviso nevertheless limits the appointing authority to only one eligible, i.e., the incumbent Mayor of Olongapo City. Since only one can qualify for the posts in question, the President is precluded from exercising his discretion to choose whom to appoint. Such supposed power of appointment, sans the essential element of choice, is no power at all and goes against the very nature itself of appointment.

While it may be viewed that the proviso merely sets the qualifications of the officer during the first year of operations of SBMA, i.e., he must be the Mayor of Olongapo City, it is manifestly an abuse of congressional authority to prescribe qualifications where only one, and no other, can qualify. Accordingly, while the conferment of the appointing power on the President is a perfectly

valid legislative act, the proviso  limiting his choice to one is certainly an encroachment on his prerogative.

Since the ineligibility of an elective official for appointment remains all throughout his tenure or during his incumbency, he may however resign first from his elective post to cast off the constitutionally-attached disqualification before he may be considered fit for appointment. The deliberation in the Constitutional Commission is enlightening:

MR. DAVIDE. On Section 4, page 3, line 8, I propose the substitution of the word "term" with TENURE.

MR. FOZ. The effect of the proposed amendment is to make possible for one to resign from his position.

MR. DAVIDE. Yes, we should allow that prerogative.

MR. FOZ. Resign from his position to accept an executive position.

MR. DAVIDE. Besides, it may turn out in a given case that because of, say, incapacity, he may leave the service, but if he is prohibited from being appointed within the term for which he was elected, we may be depriving the government of the needed expertise of an individual. 25

Consequently, as long as he is an incumbent, an elective official remains ineligible for appointment to another public office.

Where, as in the case of respondent Gordon, an incumbent elective official was, notwithstanding his ineligibility, appointed to other government posts, he does not automatically forfeit his elective office nor remove his ineligibility imposed by the Constitution. On the contrary, since an incumbent elective official is not eligible to the appointive position, his appointment or designation thereto cannot be valid in view of his disqualification or lack of eligibility. This provision should not be confused with Sec. 13, Art. VI, of the Constitution where "(n)o Senator or Member of the House of Representatives may hold any other office or employment in the Government . . . during his term without forfeiting his seat . . . ." The difference between the two provisions is significant in the sense that incumbent national legislators lose their elective posts only after they have been appointed to another government office, while other incumbent elective officials must first resign their posts before they can be appointed, thus running the risk of losing the elective post as well as not being appointed to the other post. It is therefore clear that ineligibility is not directly related with forfeiture of office. ". . . . The effect is quite different where it is expresslyprovided by law that a person holding one office shall be ineligible to another. Such a provision is held to incapacitate the incumbent of an office from accepting or holding a second office (State ex rel. Van Antwerp v Hogan, 283 Ala. 445, 218 So 2d 258; McWilliams v Neal, 130 Ga 733, 61 SE 721) and to render his election or appointment to the latter office void (State ex rel. Childs v Sutton, 63 Minn 147, 65 NW 262. Annotation: 40 ALR 945) or voidable (Baskin v State, 107 Okla 272, 232 p 388, 40 ALR 941)." 26 "Where the constitution, or statutes declare that persons holding one office shall be ineligible for election or appointment to another office, either generally or of a certain kind, the prohibition has been held to incapacitate the incumbent of the first office to hold the second so that any attempt to hold the second is void (Ala. — State ex rel. Van Antwerp v. Hogan, 218 So 2d 258, 283 Ala 445)." 27

As incumbent elective official, respondent Gordon is ineligible for appointment to the position of Chairman of the Board and Chief Executive of SBMA; hence, his appointment thereto pursuant to a legislative act that contravenes the Constitution cannot be sustained. He however remains Mayor of Olongapo City, and his acts as SBMA official are not necessarily null and void; he may be considered a de facto officer, "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 interest of the public and third persons, where the duties of the office were exercised . . . . under color of a

known election or appointment, 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 . . . . [or] under color of an election, or appointment, by or pursuant to a public unconstitutional law, before the same is adjudged to be such (State vs. Carroll, 38 Conn., 499; Wilcox vs. Smith, 5 Wendell [N.Y.], 231; 21 Am. Dec., 213; Sheehan's Case, 122 Mass, 445, 23 Am. Rep., 323)." 28

Conformably with our ruling in Civil Liberties Union, any and all per diems, allowances and other emoluments which may have been received by respondent Gordon pursuant to his appointment may be retained by him.

The illegality of his appointment to the SBMA posts being now evident, other matters affecting the legality of the questioned proviso as well as the appointment of said respondent made pursuant thereto need no longer be discussed.

In thus concluding as we do, we can only share the lament of Sen. Sotero Laurel which he expressed in the floor deliberations of S.B. 1648, precursor of R.A. 7227, when he articulated —

. . . . (much) as we would like to have the present Mayor of Olongapo City as the Chief Executive of this Authority that we are creating; (much) as I, myself, would like to because I know the capacity, integrity, industry and dedication of Mayor Gordon; (much) as we would like to give him this terrific, burdensome and heavy responsibility, we cannot do it because of the constitutional prohibition which is very clear. It says: "No elective official shall be appointed or designated to another position in any capacity." 29

For, indeed, "a Constitution must be firm and immovable, like a mountain amidst the strife of storms or a rock in the ocean amidst the raging of the waves." 30 One of the characteristics of the Constitution is permanence, i.e., "its capacity to resist capricious or whimsical change dictated not by legitimate needs but only by passing fancies, temporary passions or occasional infatuations of the people with ideas or personalities . . . . Such a Constitution is not likely to be easily tampered with to suit political expediency, personal ambitions or ill-advised agitation for change." 31

Ergo, under the Constitution, Mayor Gordon has a choice. We have no choice.

WHEREFORE, the proviso  in par. (d), Sec. 13, of R.A. 7227, which states: ". . . Provided, however, That for the first year of its operations from the effectivity of this Act, the Mayor of the City of Olongapo shall be appointed as the chairman and chief executive officer of the Subic Authority," is declared unconstitutional; consequently, the appointment pursuant thereto of the Mayor of Olongapo City, respondent Richard J. Gordon, is INVALID, hence NULL and VOID.

However, all per diems, allowances and other emoluments received by respondent Gordon, if any, as such Chairman and Chief Executive Officer may be retained by him, and all acts otherwise legitimate done by him in the exercise of his authority as officer de facto of SBMA are hereby UPHELD.

SO ORDERED.

ZOSIMO M. DIMAANDAL, petitioner, vs. COMMISSION ON AUDIT, respondent.

D E C I S I O N

MARTINEZ, J.:

This petition for certiorari seeks the reversal of the decision of the Commission on Audit dated September 7, 1995,[1] the dispositive portion of which reads, to wit:

“Foregoing premises considered, the instant appeal cannot be given due course.  Accordingly, the disallowance in question in the total amount of P52,908.00 is hereby affirmed. Considering that the claim for the RATA differential in the amount of P8,400.00 is devoid of any legal basis, the same is also disallowed.  Hence, appellant Zosimo M. Dimaandal is hereby directed to refund the salary and RATA differential in the amount of P61,308.00 he had received from the Provincial Government of Batangas.”[2]

The undisputed facts:

On November 23, 1992, petitioner Zosimo M. Dimaandal, then holding the position of Supply Officer III, was designated Acting Assistant Provincial Treasurer for Administration by then Governor Vicente A. Mayo of Batangas.  Pursuant to the designation, petitioner filed a claim for the difference in salary and Representation and Transportation Allowance (RATA) of Assistant Provincial Treasurer and Supply Officer III for the whole year of 1993 in the total amount of P61,308.00.

However, the Provincial Auditor disallowed in audit P52,908.00 of the claim.  What was allowed was only the amount of P8,400.00 which corresponds to the difference in the allowances attached to the designation and the position occupied by the appellant.  The disallowance was premised on the following reasons:

“1. The provisions of Section 2077 of the Revised Administrative Code is not applicable in the instant case as the power to fill the position of Assistant Provincial Treasurer rests on the Secretary of Finance.

2. The designation is temporary in nature and does not amount to the issuance of an appointment as could entitle the designee to receive the salary of the position to which he is designated (Opinion of the Director, Office for Legal Affairs, Civil Service Commission dated January 25, 1994).”

On August 3, 1994, Governor Mayo wrote to the Provincial Auditor requesting reconsideration of the subject disallowance, interposing the following reasons:

“1. That Section 2077 of the Revised Administrative Code is applicable in the instant case as the same provides that the Governor General or the officer having the power to fill-up a temporary absence or disability in the provincial office has the power to order or authorize payment of compensation to any government officer or employee designated or appointed temporarily to fill the place;

2. That the budget containing an appropriation for the position of Assistant Provincial Treasurer for Administration was already approved by the Provincial Board; and

3. That Mr. Dimaandal at the time of his designation as Acting Provincial Treasurer for Administration was no longer performing the duties and functions of Supply Officer III."

The Provincial Auditor, however, denied the request for reconsideration.  Appellant was required to refund the amount of P52,908.00 which was disallowed.

Petitioner appealed to the respondent Commission on Audit which sustained the stand of the Provincial Auditor of Batangas as valid and proper.  The respondent Commission was of the view that the petitioner was merely designated as an Assistant Provincial Treasurer  for Administration in addition to his regular duties.  As such, he is not entitled to receive an additional salary.  The Commission further opined that petitioner was likewise not entitled to receive the difference in RATA provided for under the Local Budget Circular issued by the Department of Budget and Management considering that the party designating him to such position is not the “duly competent authority,” provided for under Section 471 of the Local Government Code. Notably, petitioner was appointed as Assistant Provincial Treasurer for Administration by the Secretary of Finance only on July 8, 1994.

Thus, the respondent Commission not only affirmed the disallowance of the amount of P52,908.00 but likewise disallowed the claim for the RATA differential in the amount ofP8,400.00, for being devoid of any legal basis.  Petitioner was, therefore, directed to refund the salary and RATA differential in the amount of P61,308.00.

Hence, this petition.

The issue here is whether or not an employee who is designated in an acting capacity is entitled to the difference in salary between his regular position and the higher position to which he is designated.

Petitioner avers that the respondent Commission’s decision is “probably not in accordance with applicable decisions of the Supreme Court.” [3] He cites the cases of Cui, et. al. vs. Ortiz, et. al.,[4] April 29, 1960; and, Menzon vs. Petilla, May 20, 1991,[5] which laid down the rule that de facto officers are entitled to salary for services actually rendered.  Petitioner contends that he may be considered as a de facto officer by reason of services rendered in favor of the Province of Batangas.  He then posits the view that to disallow his compensation and in the process allow the Province of Batangas to keep and enjoy the benefits derived from his services actually rendered would be tantamount to deprivation of property without due process of law, and impairment of obligation of contracts duly enshrined in the Constitution.

On the other hand, the respondent Commission, through the Office of the Solicitor General, maintains that the decisions cited by petitioner do not find application in petitioner’s case.  In the case of Menzon, what was extended was an appointment to the vacant position of Vice-Governor.  Here, what was extended to petitioner was not an appointment but a mere designation.  Thus, the nature of petitioner’s designation and in the absence of authority of the Governor to authorize the payment of the additional salary and RATA without the appropriate resolution from the Sangguniang Panlalawigan does not make the ruling on de facto officers applicable in this case.

We find the petition to be without merit.

We are not persuaded by petitioner’s insistence that he could still claim the salary and RATA differential because he actually performed the functions pertaining to the office of Acting Assistant Provincial Treasurer and, therefore, entitled to the salary and benefits attached to it despite the fact that the Governor of Batangas had no authority to designate him to the said position.

The law applicable is Section 471(a) of RA 7160 otherwise known as the Local Government Code which mandates that:

“Sec. 471.  Assistant Treasurers. -  (a)  An assistant treasurer may be appointed by the Secretary of Finance from a list of at least three (3) ranking eligible recommendees of the governor or mayor, subject to civil service law, rules and regulations.

In fact, the appointing officer is authorized by law to order the payment of compensation to any government officer or employee designated or appointed to fill such vacant position, as provided under Section 2077 of the Revised Administrative Code which states that:

"Section 2077.  Compensation for person appointed to temporary service.

“In case of the temporary absence or disability of a provincial officer or in case of a vacancy in a provincial office, the President of the Philippines or officer having the power to fill such position may, in his discretion, order the payment of compensation, or additional compensation, to any Government officer or employee designated or appointed temporarily to fill the place, but the total compensation paid shall not exceed the salary authorized by law for the position filled.”

Undoubtedly, the aforecited laws do not authorize the Provincial Governor to appoint nor even designate one temporarily in cases of temporary absence or disability or a vacancy in a provincial office. That power resides in the President of the Philippines or the Secretary of Finance.

Necessarily, petitioner’s designation as Assistant Provincial Treasurer for Administration by Governor Mayo being defective, confers no right on the part of petitioner to claim the difference in the salaries and allowances attached to the position occupied by him.

Moreover, what was extended to petitioner by Governor Mayo was merely a designation not an appointment.  The respondent Commission clearly pointed out the difference between an appointment and designation, thus:

“There is a great difference between an appointment and designation.  While an appointment is the selection by the proper authority of an individual who is to exercise the powers and functions of a given office, designation merely connotes an imposition of additional duties, usually by law, upon a person already in the public service by virtue of an earlier appointment (Santiago vs. COA, 199 SCRA 125).

“Designation is simply the mere imposition of new or additional duties on the officer or employee to be performed by him in a special manner.  It does not entail payment of additional benefits or grant upon the person so designated the right to claim the salary attached to the position (COA Decision No. 95-087 dated February 2, 1995).  As such, there being no appointment issued, designation does not entitle the officer designated to receive the salary of the position.  For the legal basis of an employee’s right to claim the salary attached thereto is a duly issued and approved appointment to the position (Opinion dated January 25, 1994 of the Office for Legal Affairs, Civil Service Commission, Re: Evora, Carlos, A. Jr., Designation).”[6]

This Court has time and again ruled that:

“Although technically not binding and controlling on the courts, the construction given by the agency or entity charged with the enforcement of a statute should be given great weight and respect (In re Allen, 2 Phil. 630, 640), particularly so if such construction, as in the case at bar, has been uniform, and consistent, and has been observed and acted on for a long period of time (Molina vs. Rafferty, 38 Phil. 167; Madrigal vs. Rafferty, 38 Phil. 414; Philippine Sugar Central vs. Collector of Customs, 51 Phil. 143).”[7]

We see no justifiable reason to sustain petitioner’s argument that non-payment of his salary differential and RATA would be a violation of his constitutional right against deprivation of property without due process of law and the non-impairment of obligation of contracts clause in the Constitution.

The right to the salary of an Assistant Provincial Treasurer is based on the assumption that the appointment or designation thereof was made in accordance with law.  Considering that petitioner’s designation was without color of authority, the right to the salary or an allowance due from said office never existed.  Stated differently, in the absence of such right, there can be no violation of any constitutional right nor an impairment of the obligation of contracts clause under the Constitution.

The nature of petitioner’s designation and the absence of authority of the Governor to authorize the payment of the additional salary and RATA without the appropriate resolution from the Sangguniang Panlalawigan does not make him a de facto officer.

A de facto officer is defined as one who derives his appointment from one having colorable authority to appoint, if the office is an appointive office, and whose appointment is valid on its face.  It is likewise defined as one who is in possession of an office, and is discharging its duties under color of authority, by which is meant authority derived from an appointment, however irregular or informal, so that the incumbent be not a mere volunteer. [8] Then a de facto officer is one who is in possession of an office in the open exercise of its functions under color of an election or an appointment, even though such election or appointment may be irregular.[9]

Petitioner invokes in his favor the ruling in Menzon vs. Petilla,[10] that a de facto officer is entitled to receive the salary for services actually rendered.  However, his reliance on theMenzon case is misplaced.   In Menzon, what was extended was an appointment to the  vacant  position  of Vice-Governor, in petitioner’s case, he was designated.  The appointment of Menzon had the color of validity.  This Court said:

“And finally, even granting that the President, acting through the Secretary of Local Government, possesses no power to appoint the petitioner, at the very least, the petitioner is a de facto officer entitled to compensation.  There is no denying that the petitioner assumed the Office of the Vice-Governor under a color of a known appointment.  As revealed by the records, the petitioner was appointed by no less than the alter ego of the President, The Secretary of Local Government, after which he took his oath of office before Senator Alberto Romulo in the Office of Department of Local Government Regional Director Res Salvatierra.  Concededly, the appointment has the color of validity.”

Likewise, the doctrine in  Cui, et. al. vs. Ortiz, et. al.[11] does not apply in petitioner’s case.  In Cui,  this Court held:

“Petitioners’ appointments on December 1 and 12, 1955 by the then mayor of the municipality were legal and in order, the appointing mayor still in possession of his right to appoint. For such appointments to be complete, the approval of the President of the Philippines is required.  The law provides that pending approval of said appointment by the President, the appointee may assume office and receive salary for services actually rendered.  Accordingly, therefore, in that duration until the appointment is finally acted upon favorably or unfavorably, the appointees may be considered as ‘de facto’ officers and entitled to salaries for services actually rendered.”

Finally, the appointment signed by Finance Undersecretary Juanita D. Amatong is dated July 8, 1994.  Petitioner’s claim that the appointment retro-acts to his assumption of office is not confirmed by the express phraseology of the appointment itself, which states:

“Kayo ay nahirang na ASSISTANT PROVINCIAL TREASURER FOR ADMINISTRATION na may katayuang   PERMANENT  sa  OFFICE OF THE PROVINCIAL TREASURER OF BATANGAS  sa pasahod na ONE HUNDRED TWENTY ONE THOUSAND SIX HUNDRED TWENTY ( P 121,620.00) P.A.    piso.  Ito ay magkakabisa sa petsa ng pagganap ng tungkulin subalit di aaga sa petsa ng pagpirma ng puno ng tanggapan o appointing authority.”[12] The subsequent appointment of petitioner to the position on July 8, 1994, cannot justify petitioner’s retention of the excess amount of P61,308.00, which corresponds to the amount disallowed and ordered refunded by COA representing the salary and RATA  in excess of what was due him in

1993. WHEREFORE, premises considered, the petition is hereby DISMISSED for lack of merit. SO ORDERED.

Atty. ANGEL AGUIRRE JR. as City Legal Officer of Manila; Atty. DOMINADOR MAGLALANG, Atty. MA. THERESA BALAGTAS and Atty. ANALYN T. MARCELO, all members of the Legal Panel of the Office of the City Legal Officer of Manila, petitioners, vs.EVANGELINE C. DE CASTRO, respondents.

PANGANIBAN, J.:

The city legal officer of Manila has no disciplinary authority over the chief of the Legal Affairs and Complaint Services of the Division of City Schools of Manila. Inasmuch as the said official was appointed by and is a subordinate of the regional director of the Department of Education, Culture and Sports, she is subject to the supervision and control of said director. The power to appoint carries the power to remove or to discipline. The mere fact that her salary is sourced from city funds does not ipso facto place her under the city legal officer's disciplinary jurisdiction, absent any clear statutory basis therefor.

The Case

Before this Court is a Petition for Review on Certiorari 1 under Rule 45 of the Rules of Court seeking reversal of the October 22, 1996 Decision 2 of the Court of Appeals (CA) 3 in CA-GR SP No. 40183, the dispositive portion of which reads:

WHEREFORE, premises considered, the petition is GRANTED and the public respondent City Legal Office of Manila is directed to permanently cease and desist from further proceeding with Administrative Case CLO No. 24-96. 4

Likewise assailed is the CA's December 23, 1996 Resolution 5 denying reconsideration.

The Facts

The undisputed facts of the case are summarized by the Court of Appeals as follows:

[Respondent] 6 Atty. Evangeline C. De Castro is the Chief of the Legal Affairs and Complaint Services of the Division of City Schools of Manila. On February 1, 1996, [respondent] received a letter from public respondent Angel Aguirre, Jr., City Legal Officer of Manila accompanied by copies of alleged complaints against her. [Respondent] was required in the said letter to explain within seventy two (72) hours upon receipt why no administrative sanctions shall be imposed upon her for gross misconduct and conduct unbecoming . . . a public officer in violation of the Civil Service Law, Rules and Regulations.

On February 6, 1996, [Respondent] Evangeline de Castro filed her answer-affidavit which was received on the same day by the Office of the City Legal Officer.

Subsequently, on February 13, 1996, City Legal Officer Angel Aguirre, Jr. notified the [respondent] that her answer-affidavit was found unsatisfactory

for which reason she was summoned to appear before the said City Legal Officer for the purpose of conducting a formal investigation.

Two (2) days later or on February 15, 1996, [respondent] filed a motion to dismiss. She claimed that she [was] a subordinate of the Secretary of the Department of Education, Culture and Sports (DECS). Thus, the case should be endorsed to the Office of the DECS Secretary or its legal division as nowhere in RA 409, Charter of the City of Manila is there a provision conferring upon the Office of the City Legal Officer jurisdiction to try and investigate personnel of the DECS in general, or the Division of City Schools where petitioner is under, in particular.

This motion to dismiss of [respondent] was denied in a resolution of the City Legal Officer dated February 21, 1996 citing Sec. 455 b(1) and (V) of the Local Government Code and Section 3(c) of the same code. In the said resolution it was held that the records of the personnel office disclose[d] that [respondent was] included in the plantilla of the City of Manila and therefore her salary derived wholly and mainly from the funds of the City for which reason she [was] subject to the disciplinary authority of the said City Legal Officer.

Thereafter, on February 26, 1996, [respondent] was notified to appear before the panel formed by the City Legal Officer (CLO Panel) to hear administrative case CLO 24-96 filed against her for grave misconduct and conduct unbecoming . . . a public officer.

[Respondent] filed a motion to reconsider the resolution dated February 21, 1996. This motion was again denied by the CLO panel in its order dated March 6, 1996.

Again, [respondent] moved to reconsider the above order which was likewise denied in the resolution of the CLO panel dated March 18, 1996. 7

Consequently, respondent elevated the matter to the Court of Appeals via a Petition for Certiorari and Prohibition.

Ruling of the Court of Appeals

Citing the Administrative Code of 1987, 8 the Court of Appeals ruled that the authority to discipline herein respondent rests with the regional director for the National Capital Region of the Department of Education, Culture and Sports (DECS), not with the city legal officer of Manila. It also held that the Local Government (LGC) did not repeal the pertinent provisions of the Administrative Code. Hence, absent any contrary provision of the LGC, the CA opined that disciplinary authority over petitioner must remain with the DECS.

The CA also noted that officers and staff members of the Division of City Schools were not among those whom the city mayor was authorized to appoint under the LGC. Hence, it ruled that respondent was not an employee of the City of Manila, and that the city legal officer had no authority to investigate her for administrative neglect or misconduct in office.

Assuming arguendo that the city mayor was authorized to make a subsequent appointment to the respondent's position should it become vacant, the CA held that this power was not retroactive and could not apply to respondent who had been appointed by the regional director

of the DECS. (LGC) did not repeal the pertinent provisions of the Administrative Code. Hence, absent any contrary provision of the LGC, the CA opined that disciplinary authority over petitioner must remain with the DECS.

The CA also noted that officers and staff members of the Division of City Schools were not among those whom the city mayor was authorized to appoint under the LGC. Hence, it ruled that respondent was not an employee of the City of Manila, and that the city legal officer had no authority to investigate her for administrative neglect or misconduct in office.

Assuming arguendo that the city mayor was authorized to make a subsequent appointment to the respondent's position should it become vacant, the CA held that this power was not retroactive and could not apply to respondent who had been appointed by the regional director of the DECS.

Dissatisfied, the city legal officer of Manila lodged this Petition before this Court on January 21, 1997. 9

Issue

The solitary issue presented for the Court's consideration is "whether or not the Office of the City Legal Officer of Manila has jurisdiction to investigate the complaint for grave misconduct filed against the respondent." 10

This Court's Ruling

The Petition is bereft of merit.

Sole Issue:

Jurisdiction of the City Legal Officer

Petitioners contend that respondent is a city employee under the supervision of the city mayor, because her salary is paid by the City of Manila. They base this argument on Section 455 (b-1-v) 11 of the Local Government Code (LGC), which authorizes the city mayor to appoint city employees whose salaries and wages are wholly or mainly paid out of city funds; and on Section 455 (b-1-x), 12 which states that the mayor may institute administrative or judicial proceedings against erring city officials or employees.

Petitioners' contentions are not persuasive. Under Book IV, Chapter V, Section 7(4) of the Administrative Code of 1987, the power to appoint and discipline first-level employees, which include respondent, is specifically lodged with the regional director of the Department of Education, Culture and Sports.

xxx xxx xxx

(4) Appoint personnel to positions in the first level and casual and seasonal employees; and exercise disciplinary actions over them in accordance with the Civil Service Law.

This is also clear in Book V, Section 47 (2) of the same Code; and in Section 32, Rule XIV of the Omnibus Rules Implementing Book V of the Administrative Code of 1987.

Sec. 32. The Secretaries and heads of agencies and instrumentalities, provinces, cities, and municipalities shall have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. . . . .

We agree with the CA that the LGC did not automatically repeal the provisions in the 1987 Administrative Code, contrary to petitioners' argument. There is no provision in the LGC expressly rescinding the authority of the DECS regional director to appoint and exercise disciplinary authority over first-level employees. On the other hand, "implied repeals are not lightly presumed in the absence of a clear and unmistakable showing of such intention."13

Furthermore, respondent's position as senior legal officer in the Division of City Schools is not one of the offices covered by the city mayor's power of appointment under the LGC.

Sec. 454. Officials of the City Government. — (a) There shall be in each city a mayor, a vice-mayor, sangguniang panlungsod members, a secretary to the sangguniang panlungsod, a city treasurer, a city assessor, a city accountant, a city budget officer, a city planning and development coordinator, a city engineer, a city health officer, a city civil registrar, a city administrator, a city legal officer, a city veterinarian, a city social welfare and development officer, and a city general services officer.

(b) In addition thereto, the city mayor may appoint a city architect, a city information officer, a city agriculturist, a city population officer, a city environment and natural resources officer, and a city cooperatives officer.

xxx xxx xxx 14

Moreover, petitioners failed to show a specific provision in the LGC showing that the power to discipline officials in the Division of City Schools has been devolved from the regional director of the DECS to the city mayor. All that Section 17 (4) of the Local Government Code states is that the city must provide support for education and other such services and facilities.

Likewise, Section 455 (b-1-x) of the Local Government Code, which provides that the city mayor "may cause to be instituted administrative or judicial proceedings against any official or employee of the city," is not necessarily incompatible with the provisions of the Administrative Code of 1987 authorizing the regional director to discipline national education employees. Nothing prohibits the mayor from filing complaints against respondent before the DECS.

Petitioners cite paragraph 12, Section 2 (a) of Executive Order (EO) 503, which states that devolved personnel are automatically reappointed by the local chief executive. Since respondent was deemed reappointed by the city mayor, it follows that the latter can exercise disciplinary authority over her.

We are not convinced. First, the above provision applies to devolved personnel, and there is no proof whatsoever that respondent is one of them. Second, even if respondent can be considered as a devolved personnel, the cited paragraph of EO 503 must not be read in isolation from but in conjunction with the other paragraphs in Section 2 (a).

Thus, paragraph 12 — along with paragraphs 5, 6, 8, 13 and 14 15 of EO 503 — deals with safeguards against termination, reduction of pay and diminution in rank of existing personnel; it is not about the power of the mayor to discipline personnel of the Division of City Schools. In effect, the said provision serves more to limit the appointing authority of the city mayor, whose

acts must be circumscribed by the aforecited conditions. It is not incompatible and can exist with aforecited provisions of the Administrative Code. Indeed, it cannot be deemed to have divested the regional director of his disciplining power.

As to petitioners' argument that respondent's salary is wholly or mainly paid out of city funds, suffice it to say that the source of the wages is not the only criteria in determining whether the payor may be deemed the employer. In fact, the most important factor is the control test; that is, who has the power to supervise and direct the work of the employee concerned?

Absent any contrary statutory provision, the power to appoint carries with it the power to remove or to discipline. 16Since respondent was appointed by the regional director of DECS, she may be disciplined or removed by the latter pursuant to law.

Finally, respondent's primary duty is to conduct investigations of cases involving teaching and nonteaching personnel of the Division of City Schools of Manila. The report on the results of her investigations is then submitted for final evaluation to the DECS regional director, who may approve, disapprove or allow respondent to modify it. This fact clearly shows that supervision over respondent is lodged with the regional director, not the mayor.

All in all, petitioners have not convinced us that the Court of Appeals committed any reversible error.

WHEREFORE, the Petition is hereby DISMISSED and the assailed Decision AFFIRMED. Costs against petitioners.

CIVIL SERVICE COMMISSION, Petitioner, vs.ENGR. ALI P. DARANGINA, Respondent.

D E C I S I O N

SANDOVAL-GUTIERREZ, J.:

For our resolution is the instant Petition for Review on Certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, seeking to reverse the Resolutions of the Court of Appeals dated October 7, 20041 and March 18, 20052 in CA-G.R. SP No. 71353.

The undisputed facts are:

Engr. Ali P. Darangina, respondent, was a development management officer V in the Office of Muslim Affairs (OMA). On September 25, 2000, he was extended a temporary promotional appointment as director III, Plans and Policy Services, in the same office. On October 11, 2000, the Civil Service Commission (CSC), petitioner, approved this temporary appointment effective for one (1) year from the date of its issuance unless sooner terminated.

On October 31, 2000, newly appointed OMA Executive Director Acmad Tomawis terminated the temporary appointment of respondent on the ground that he is not a career executive service eligible. Tomawis then appointed Alongan Sani as director III. But he is not also a career executive service eligible. Thus, the CSC disapproved his appointment, stating that respondent could only be replaced by an eligible.

On appeal by respondent, the CSC issued Resolution No. 01-1543 dated September 18, 2001 sustaining the termination of his temporary appointment but ordering the payment of his salaries from the time he was appointed on September 25, 2000 until his separation on October 31, 2000.

Respondent filed a motion for reconsideration. On March 20, 2002, the CSC issued Resolution No. 02-439 granting the same with modification in the sense that respondent should be paid his backwages from the time his employment was terminated on October 11, 2000 until September 24, 2001, the expiration of his one year temporary appointment.

On April 3, 2002, respondent filed a motion for partial reconsideration, praying for his reinstatement as director III and payment of backwages up to the time he shall be reinstated.

On June 5, 2002, the CSC issued Resolution No. 02-782 denying respondent’s motion for partial reconsideration being a second motion for reconsideration which is prohibited.

Respondent then filed a petition for review with the Court of Appeals, docketed as CA-G.R. SP No. 71353. But in its Resolution of February 27, 2004, the petition was dismissed for his failure to implead the OMA Executive Director and the incumbent of the disputed position.

Respondent filed a motion for reconsideration.

In a Resolution dated October 7, 2004, the Court of Appeals reconsidered its Decision of February 27, 2004, thus:

ACCORDINGLY, our Decision of February 27, 2004 is RECONSIDERED and the assailed CSC resolutions are hereby MODIFIED in that the petitioner is reinstated to his post to finish his 12-month term with backwages from the date of his removal until reinstatement.

SO ORDERED.

The CSC filed a motion for reconsideration but it was denied by the Court of Appeals in a Resolution dated March 28, 2005.

Section 27, Chapter 5, Subtitle A, Title I, Book V of the Administrative Code of 1987, as amended, classifying the appointment status of public officers and employees in the career service, reads:

SEC. 27. Employment Status. – Appointment in the career service shall be permanent or temporary.

(1) Permanent status. A permanent appointment shall be issued to a person who meets all the requirements for the position to which he is being appointed, including appropriate eligibility prescribed, in accordance with the provisions of law, rules and standards promulgated in pursuance thereof.

(2) Temporary appointment. In the absence of appropriate eligibles and it becomes necessary in the public interest to fill a vacancy, a temporary appointment shall be issued to a person who meets all the requirements for the position to which he is being appointed except the appropriate civil service eligibility:Provided, That such temporary appointment shall not exceed twelve months, but the appointee may be replaced sooner if a qualified civil service eligible becomes available.

It is clear that a permanent appointment can issue only to a person who possesses all the requirements for the position to which he is being appointed, including the appropriate eligibility.3 Differently stated, as a rule, no person may be appointed to a public office unless he or she possesses the requisite qualifications. The exception to the rule is where, in the absence of appropriate eligibles, he or she may be appointed to it merely in a temporary capacity. Such a temporary appointment is not made for the benefit of the appointee. Rather, an acting or temporary appointment seeks to prevent a hiatus in the discharge of official functions by authorizing a person to discharge the same pending the selection of a permanent appointee.4 In Cuadra v. Cordova,5 this Court defined a temporary appointment as "one made in an acting capacity, the essence of which lies in its temporary character and its terminability at pleasure by the appointing power." Thus, the temporary appointee accepts the position with the condition that he shall surrender the office when called upon to do so by the appointing authority. Under Section 27 (2), Chapter 5, Subtitle A, Title I, Book V of the same Code, the term of a temporary appointment shall be 12 months, unless sooner terminated by the appointing authority. Such pre-termination of a temporary appointment may be with or without cause as the appointee serves merely at the pleasure of the appointing power.6

Under the Revised Qualifications Standards prescribed by the CSC, career executive service eligibility is a necessary qualification for the position of director III in Plans and Policy Services, OMA. It is not disputed that on September 25, 2000, when respondent was extended an appointment, he was not eligible to the position, not being a holder of such eligibility. Hence, his appointment was properly designated as "temporary." Then on October 31, 2000, newly-appointed OMA Executive Director Tomawis recalled respondent’s temporary appointment and replaced him by appointing Alongan Sani. It turned out, however, that Sani is not likewise qualified for the post. A game of musical chairs then followed. Sani was subsequently replaced

by Tapa Umal, who in turn, was succeeded by Camad Edres, and later, was replaced by Ismael Amod. All these appointees were also disqualified for lack of the required eligibility.

The Court of Appeals ruled that such replacements are not valid as the persons who replaced respondent are not also eligible. Also, since he was replaced without just cause, he is entitled to serve the remaining term of his 12-month term with salaries.

This Court has ruled that where a non-eligible holds a temporary appointment, his replacement by another non-eligible is not prohibited.7

Moreover, in Achacoso8 cited earlier, this Court held that when a temporary appointee is required to relinquish his office, he is being separated precisely because his term has expired. Thus, reinstatement will not lie in favor of respondent. Starkly put, with the expiration of his term upon his replacement, there is no longer any remaining term to be served. Consequently, he can no longer be reinstated.

As to whether respondent is entitled to back salaries, it is not disputed that he was paid his salary during the entire twelve-month period in spite of the fact that he served only from September 25, 2000 to October 31, 2000, or for only one month and six days. Clearly, he was overpaid.

WHEREFORE, this Court GRANTS the petition and REVERSES the assailed Resolutions of the Court of Appeals. Considering that respondent’s employment was validly terminated on October 31, 2000, he is ordered to refund the salaries he received from that date up to September 24, 2001.

No costs.

SO ORDERED.

PATRICIO E. SALES, ET AL.,vs.HON. RODOLFO H. CARREON, JR., and THE CITY GOVERNMENT OF DAPITAN CITY, represented by its Mayor, Hon. RODOLFO H. CARREON, JR., Respondents.

D E C I S I O N

SANDOVAL-GUTIERREZ, J.:

For our resolution is the instant Petition for Review on Certiorari assailing the Decision1 of the Court of Appeals dated September 16, 2003 in CA-G.R. SP No. 75515.

During the May 2001 elections, then Mayor Joseph Cedrick O. Ruiz of Dapitan City, running for re-election, was defeated by respondent Rodolfo H. Carreon, Jr.

On June 1, 18 and 27, 2001, his last month in office, then Dapitan City Mayor Ruiz issued 83 appointments, including those of herein petitioners.

On July 1, 2001, the newly elected Mayor, Rodolfo H. Carreon, Jr., herein respondent, assumed office.

On July 2, 2001, respondent issued Memorandum Orders Nos. 1 and 2 revoking the 83 appointments signed by his predecessor on the ground that the latter violated Civil Service Commission (CSC) Resolution No. 01-988 in relation to CSC Memorandum Circular No. 7, Series of 2001, imposing a ban on issuing appointments in the civil service during the election period. Thereupon, respondent prohibited the release of the salaries and benefits of the 83 appointees.

On July 10, 2001, Patricio Sales, one of herein petitioners, in his capacity as president of the Dapitan City Government Employees Association, wrote the CSC Regional Office No. IX requesting its ruling on the matter.

On July 16 and August 3, 2001, respondent sent the said Office a position paper justifying his action, contending that the questioned appointments were not only "issued in bulk" but that there was no urgent need to fill those positions.

On August 17, 2001, the CSC Regional Office No. IX issued an Omnibus Order, the dispositive portion of which reads:

WHEREFORE, all premises considered:

1. The eighty-three (83) appointments issued by then Mayor Joseph Cedrick O. Ruiz, including those issued by the herein requesting parties, are, therefore not considered "mass appointments," as defined under CSC Resolution No. 01-0988 and are thus, VALID and EFFECTIVE.

2. Memorandum Orders Nos. 1 and 2, Series of 2001, issued by Mayor Rodolfo H. Carreon, Jr., are hereby declared NULL and VOID, and accordingly,

3. The LGU-Dapitan is hereby directed to pay the salaries and other emoluments to which the 83 appointments are entitled to pursuant to the appointments issued to them.

On appeal by respondent, the CSC En Banc, on June 17, 2002, issued Resolution No. 020828 reversing the assailed Omnibus Order of the CSC Regional Office No. IX, thus:

WHEREFORE, premises considered, the Omnibus Order dated August 17, 2001of the Civil Service Commission Regional Office No. IX is

REVERSED and SET ASIDE. The Commission hereby rules, as follows:

1. The approval of all 83 appointments issued by then Mayor J. Cedrick O. Ruiz is revoked for being violative of Republic Act No. 7041, CSC Memorandum Circular No. 18 s. 1988, as amended, CSC Resolution No. 963332 on its accreditation and CSC Resolution No. 01-0988.1awphi1.net

2. All promoted employees are reverted to their previous position; and

3. Memorandum Order No. 1 and Memorandum Order No. 2 issued by incumbent Mayor Rodolfo H. Carreon, Jr. are hereby declared null and void.

The CSC En Banc held that the positions in question were published and declared vacant prior to the existence of any vacancy.

Petitioners filed a motion for reconsideration but it was denied in Resolution No. 030049 dated January 16, 2003 by the CSC En Banc.

On February 13, 2003, petitioners filed with the Court of Appeals a petition for review. On September 16, 2003, the appellate court rendered its Decision dismissing the petition, sustaining the CSC’s finding that the positions to which the petitioners were appointed were already reported and published even before they had been declared vacant, in violation of Sections 2 and 3 of Republic Act (R.A.) No. 7041;2 and that there was no first level representative to the Personnel Section Board who should have participated in the screening of candidates for vacancy in the first level.

Petitioners filed a motion for reconsideration, but this was denied by the Court of Appeals in its Resolution dated November 17, 2003.

Hence, the instant petition.

This case is a typical example of the practice of outgoing local chief executives to issue "midnight" appointments, especially after their successors have been proclaimed. It does not only cause animosities between the outgoing and the incoming officials, but also affects efficiency in local governance. Those appointed tend to devote their time and energy in defending their appointments instead of attending to their functions. However, not all "midnight" appointments are invalid.3 Each appointment must be judged on the basis of the nature, character, and merits of the individual appointment and the circumstances surrounding the same.4 It is only when the appointments were made en masse by the outgoing administration and shown to have been made through hurried maneuvers and under circumstances departing from good faith, morality, and propriety that this Court has struck down "midnight" appointments.5

It is State policy that "opportunities for government employment shall be open to all qualified citizens" and "employees shall be selected on the basis of fitness to perform the duties and

assume the responsibilities of the positions."6 It was precisely in order to ensure transparency and equal opportunity in the recruitment and hiring of government personnel, that Republic Act

No. 7041 was enacted. Section 2 provides:

SEC. 2. Duty of Personnel Officers. – It shall be the duty of all Chief Personnel or Administrative Officers of all branches, subdivisions, instrumentalities and agencies of the Government, including government-owned or controlled corporations with original charters, and local government units, to post in three (3) conspicuous places of their offices for a period ten (10) days a complete list of all existing vacant positions in their respective offices which are authorized to be filled, and to transmit a copy of such list and the corresponding qualification standards to the Civil Service Commission not later than the tenth day of every month. Vacant positions shall not be filled until after publication: Provided, however, that vacant and unfilled positions that are:

a) primarily confidential;

b) policy-determining;

c) highly technical;

d) co-terminous with that of the appointing authority; or

e) limited to the duration of a particular project, shall be excluded from the list required by law.

SEC. 3. Publication of Vacancies. – The Chairman and members of the Civil Service Commission shall publish once every quarter a complete list of all the existing vacant positions in the Government throughout the country, including the qualification standards required for each position and, thereafter, certify under oath to the completion of publication. Copies of such publication shall be sold at cost to the public and distributed free of charge to the various personnel office of the government where they shall be available for inspection by the public: Provided, That said publication shall be posted by the Chief Personnel or Administrative Officer of all local government units in at least three (3) public and conspicuous places in their respective municipalities and provinces: Provided, further, That any vacant position published therein shall be open to any qualified person who does not necessarily belong to the same office with the vacancy or who occupies a position next-in-rank to the vacancy: Provided, finally, That the Civil Service Commission shall not act on any appointment to fill up a vacant position unless the same has been reported to and published by the Commission.

The foregoing provisions are clear and need no interpretation. The CSC is required to publish the lists of vacant positions and such publication shall be posted by the chief personnel or administrative officer of all local government units in the designated places. The vacant positions may only be filled by the appointing authority after they have been reported to the CSC as vacant and only after publication.

Here, the publication of vacancies was made even before the positions involved actually became vacant. Clearly, respondent’s action violated Section 2 of R.A. No. 7041 cited earlier.

Moreover, the CSC found that there was no first-level representative appointed to the Personnel Selection Board, which deliberated on the appointments to first-level positions.

CSC Memorandum Circular No. 18, series of 1988, as amended, provides that the Personnel Selection Board shall be composed of the following:

a. Official of department/agency directly responsible for personnel management;

b. Representative of management;

c. Representative of organizational unit which may be an office, department, or division where the vacancy is;

d. Representative of rank-and-file employees, one (1) for the first-level and one (1) for the second-level, who shall both be chosen by duly registered/accredited employees’ association in the department or agency. The former shall sit during the screening of candidates for vacancy in the first-level, while the latter shall participate in the screening of candidates for vacancy in the second level. In case where there is no employees’ association in the department or agency, the representative shall be chosen at large by the employees through a general election to be called for the purpose.

Petitioners admitted that after the retirement on April 22, 2000 of Beltran Faconete, the first-level representative to the Personnel Selection Board, no other first-level representative to replace him was chosen by the Dapitan City Government Employees Association. Yet, the city government Personnel Selection Board proceeded to deliberate and recommend the appointments of applicants to the 43 first-level positions. Petitioners contend, however, that although there was no such representative, the action of the Board is still valid.

Petitioners’ contention lacks merit.

Section 20, Rule VI of the Omnibus Rules Implementing Book V-A of the Administrative Code of 1987 (also known as the Civil Service Law), provides:

SEC. 20. Notwithstanding the initial approval of an appointment, the same may be recalled on any of the following grounds:

a) non-compliance with the procedures/criteria provided in the agency’s Merit Promotion Plan;b) failure to pass through the agency’s Selection/Promotion Board;c) violation of the existing collective bargaining agreement between management and employees relative to promotion; ord) violation of other existing civil service laws, rules and regulations.

Verily, in deliberating and recommending to former Mayor Ruiz the appointments of herein petitioners to the vacant positions sans the required representation, the Board violated the above CSC Rules. Hence, the appointments he issued are not valid. They may be recalled. In Mathay, Jr. v. Civil Service Commission,7 this Court upheld the authority of the CSC to take appropriate action on all appointments, including its authority to recall appointments made in disregard of the applicable provisions of Civil Service Law and regulations.

In sum, for being in violation of Section 2, R.A. No. 7041, CSC Memorandum Circular No. 18, as amended, and Section 20, Rule VI of the Omnibus Rules Implementing Book V-A of the Administrative Code of 1987, the appointments of the above-named petitioners are declared void. WHEREFORE, the Court DENIES the petition and AFFIRMS the assailed Decision of the Court of Appeals in CA-G.R. SP No. 755151. SO ORDERED.

ATTY. VICENTE E. SALUMBIDES, JR., and GLENDA ARAÑA, Petitioners, vs.OFFICE OF THE OMBUDSMAN, RICARDO AGON, RAMON VILLASANTA, ELMER DIZON, SALVADOR ADUL, and AGNES FABIAN, Respondents,

D E C I S I O N

CARPIO MORALES, J.:

Petitioners Vicente Salumbides, Jr. (Salumbides) and Glenda Araña (Glenda) challenge the October 11, 2007 Decision and the December 13, 2007 Resolution of the Court of Appeals1 in CA-G.R. SP No. 96889 affirming the Office of the Ombudsman's decision finding them guilty of Simple Neglect of Duty.

Salumbides and Glenda were appointed in July 2001 as Municipal Legal Officer/Administrator and Municipal Budget Officer, respectively, of Tagkawayan, Quezon.

Towards the end of 2001, Mayor Vicente Salumbides III (the mayor) saw the urgent need to construct a two-classroom building with fence (the projects) for the Tagkawayan Municipal High School2 (TMHS) since the public school in the poblacion area would no longer admit high school freshmen starting school year 2002-2003. On how to solve the classroom shortage, the mayor consulted Salumbides who suggested that the construction of the two-classroom building be charged to the account of the Maintenance and Other Operating Expenses/ Repair and Maintenance of Facilities (MOOE/RMF) and implemented "by administration," as had been done in a previous classroom building project of the former mayor.

Upon consultation, Glenda advised Salumbides in December 2001, that there were no more available funds that could be taken from the MOOE/RMF, but the savings of the municipal government were adequate to fund the projects. She added, however, that the approval by the Sangguniang Bayan of a proposed supplemental budget must be secured.

The members of the Sangguniang Bayan having already gone on recess for the Christmas holidays, Glenda and Salumbides advised the mayor to source the funds from the P1,000,000 MOOE/RMF allocation in the approved Municipal Annual Budget for 2002.3

The mayor thus ordered on January 8, 2002 Municipal Engineer Jose Aquino (Aquino) to proceed with the construction of the projects based on the program of work and bill of materials he (Aquino) prepared with a total cost estimate of P222,000.

Upon advice of Municipal Planning and Development Officer Hernan Jason (Jason), the mayor included the projects in the list of local government projects scheduled for bidding on January 25, 2002 which, together with the January 31, 2002 public bidding, failed.

The mayor was to admit later his expectation or assumption of risk on reimbursement:

x x x It was my thinking that even if a bidder emerges and gets these 2 projects which were at the time on-going (although it was also my thinking then that no bidder would possibly bid for these 2 projects as these were cost-estimated very low-P150,000 for the 2-room school building P72,000 for the fencing) he (bidder) would be reasonable enough to reimburse what I had so far spen[t] for the project. I said "I" because up to the time of the failed 2 biddings I have shouldered the "vale" of the laborers and I requisitioned some materials on credit on my own personal account, and not a single centavo was at the time disbursed by our municipal treasury until all

requirements for negotiated purchase of the materials for the project had been accomplished. As a matter of fact,payments for the expenses on these 2 projects have been made only starting 19 March 2002. x x x4 (underscoring supplied)

The construction of the projects commenced without any approved appropriation and ahead of the public bidding. Salumbides was of the opinion that the projects were regular and legal, based on an earlier project that was "implemented in the same manner, using the same source of fund and for the same reason of urgency" which was allowed "because the building was considered merely temporary as the TMHS is set to be transferred to an 8-hectare lot which the municipal government is presently negotiating to buy."5

Meanwhile, Aquino suggested to the Sangguniang Bayan the adoption of "model guidelines" in the implementation of infrastructure projects to be executed "by administration," while Councilor Coleta Sandro (Coleta) sponsored a Resolution to ratify the projects and to authorize the mayor to enter into a negotiated procurement. Both actions did not merit the approval of the Sangguniang Bayan.

On May 13, 2002, herein respondents Ricardo Agon, Ramon Villasanta, Elmer Dizon, Salvador Adul and Agnes Fabian, all members of the Sangguniang Bayan of Tagkawayan, filed with the Office of the Ombudsman a complaint6 against Salumbides and Glenda (hereafter petitioners), the mayor, Coleta, Jason and Aquino.

The administrative aspect of the case, docketed as Case No. OMB-L-A-02-0276-E, charged petitioners et al. with Dishonesty, Grave Misconduct, Gross Neglect of Duty, Conduct Prejudicial to the Best Interest of the Service, and violation of the Commission on Audit (COA) Rules and the Local Government Code.

By Order of June 14, 2002, the Office of the Ombudsman, denied the prayer to place petitioners et al. under preventive suspension pending investigation. By Order dated February 1, 2005, approved on April 11, 2005, it denied the motion for reconsideration but dropped the mayor and Coleta, both elective officials, as respondents in the administrative case, the 2004 elections having mooted the case. The parties were thereupon directed to submit their respective verified position papers to which petitioners, Jason and Aquino complied by submitting a consolidated position paper on May 19, 2005.

Meanwhile, in response to the subpoena duces tecum issued by the Office of the Ombudsman on February 18, 2005 requiring the regional officer of the COA to submit the post-audit report on the projects, Celerino Alviar, COA State Auditor II claimed by Affidavit of May 23, 2005 that the required documents were among those razed by fire on April 14, 2004 that hit the Office of the Municipal Accountant where they were temporarily stored due to lack of space at the Provincial Auditor's Office.1avvphi1

On October 17, 2005, the Office of the Ombudsman approved the September 9, 2005 Memorandum absolving Jason and Aquino, and finding petitioners guilty of Simple Neglect of Duty, for which they were meted the penalty of suspension from office for a maximum period of six months with a stern warning against a similar repetition. It also approved on November 2, 2006 the March 27, 2006 Order7 denying the motion for reconsideration.

Their recourse to the appellate court having failed, petitioners come before this Court via Rule 45 of the Rules of Court.

For non-compliance with the rule on certification against forum shopping, the petition merits outright dismissal. The verification portion of the petition does not carry a certification against forum shopping.8

The Court has distinguished the effects of non-compliance with the requirement of verification and that of certification against forum shopping. A defective verification shall be treated as an unsigned pleading and thus produces no legal effect, subject to the discretion of the court to allow the deficiency to be remedied, while the failure to certify against forum shopping shall be cause for dismissal without prejudice, unless otherwise provided, and is not curable by amendment of the initiatory pleading.9

Petitioners' disregard of the rules was not the first. Their motion for extension of time to file petition was previously denied by Resolution of January 15, 200810 for non-compliance with the required showing of competent proof of identity in the Affidavit of Service. The Court, by Resolution of March 4, 2008,11 later granted their motion for reconsideration with motion to admit appeal (Motion with Appeal) that was filed on February 18, 2008 or the last day of filing within the extended period.

Moreover, in their Manifestation/Motion12 filed a day later, petitioners prayed only for the admission of nineadditional copies of the Motion with Appeal "due to honest inadvertence" in earlier filing an insufficient number of copies. Petitioners were less than candid when they surreptitiously submitted a Motion with Appeal which isdifferent from the first set they had submitted. The second set of Appeal includes specific Assignment of Errors13and already contains a certification against forum shopping14 embedded in the Verification. The two different Verifications were notarized by the same notary public and bear the same date and document number.15 The rectified verification with certification, however, was filed beyond the reglementary period.

Its lapses aside, the petition just the same merits denial.

Petitioners urge this Court to expand the settled doctrine of condonation16 to cover coterminous appointive officials who were administratively charged along with the reelected official/appointing authority with infractions allegedly committed during their preceding term.

The Court rejects petitioners' thesis.

More than 60 years ago, the Court in Pascual v. Hon. Provincial Board of Nueva Ecija17 issued the landmark ruling that prohibits the disciplining of an elective official for a wrongful act committed during his immediately preceding term of office. The Court explained that "[t]he underlying theory is that each term is separate from other terms, and that the reelection to office operates as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefor."18

The Court should never remove a public officer for acts done prior to his present term of office. To do otherwise would be to deprive the people of their right to elect their officers. When the people elect[e]d a man to office, it must be assumed that they did this with knowledge of his life and character, and that they disregarded or forgave his faults or misconduct, if he had been guilty of any. It is not for the court, by reason of such faults or misconduct[,] to practically overrule the will of the people.19 (underscoring supplied)

Lizares v. Hechanova, et al.20 replicated the doctrine. The Court dismissed the petition in that case for being moot, the therein petitioner "having been duly reelected, is no longer amenable to administrative sanctions."21

Ingco v. Sanchez, et al.22 clarified that the condonation doctrine does not apply to a criminal case.23 Luciano v. The Provincial Governor, et al.,24 Olivarez v. Judge Villaluz,25 and Aguinaldo v. Santos26 echoed the qualified rule that reelection of a public official does not bar prosecution for crimes committed by him prior thereto.

Consistently, the Court has reiterated the doctrine in a string of recent jurisprudence including two cases involving a Senator and a Member of the House of Representatives.27

Salalima v. Guingona, Jr.28 and Mayor Garcia v. Hon. Mojica29 reinforced the doctrine. The condonation rule was applied even if the administrative complaint was not filed before the reelection of the public official, and even if the alleged misconduct occurred four days before the elections, respectively. Salalima did not distinguish as to the date of filing of the administrative complaint, as long as the alleged misconduct was committed during the prior term, the precise timing or period of which Garcia did not further distinguish, as long as the wrongdoing that gave rise to the public official's culpability was committed prior to the date of reelection.

Petitioners' theory is not novel.

A parallel question was involved in Civil Service Commission v. Sojor30 where the Court found no basis to broaden the scope of the doctrine of condonation:

Lastly, We do not agree with respondent's contention that his appointment to the position of president of NORSU, despite the pending administrative cases against him, served as a condonation by the BOR of the alleged acts imputed to him. The doctrine this Court laid down in Salalima v. Guingona, Jr. and Aguinaldo v. Santos are inapplicable to the present circumstances. Respondents in the mentioned cases are elective officials, unlike respondent here who is an appointed official. Indeed, election expresses the sovereign will of the people. Under the principle of vox populi est suprema lex,   the re-election of a public official may, indeed, supersede a pending administrative case. The same cannot be said of a re-appointment to a non-career position.There is no sovereign will of the people to speak of when the BOR re-appointed respondent Sojor to the post of university president.31 (emphasis and underscoring supplied)lawph!l

Contrary to petitioners' asseveration, the non-application of the condonation doctrine to appointive officials does not violate the right to equal protection of the law.

In the recent case of Quinto v. Commission on Elections,32 the Court applied the four-fold test in an equal protection challenge33 against the resign-to-run provision, wherein it discussed the material and substantive distinctions between elective and appointive officials that could well apply to the doctrine of condonation:

The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not.

Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority.

x x x x

An election is the embodiment of the popular will, perhaps the purest expression of the sovereign power of the people. It involves the choice or selection of candidates to public office by popular vote. Considering that elected officials are put in office by their constituents for a definite term, x x x complete deference is accorded to the will of the electorate that they be served by such officials until the end of the term for which they were elected. In contrast, there is no such expectation insofar as appointed officials are concerned. (emphasis and underscoring supplied)

The electorate's condonation of the previous administrative infractions of the reelected official cannot be extended to that of the reappointed coterminous employees, the underlying basis of the rule being to uphold the will of the people expressed through the ballot. In other words, there is neither subversion of the sovereign will nor disenfranchisement of the electorate to speak of, in the case of reappointed coterminous employees.

It is the will of the populace, not the whim of one person who happens to be the appointing authority, that could extinguish an administrative liability. Since petitioners hold appointive positions, they cannot claim the mandate of the electorate. The people cannot be charged with the presumption of full knowledge of the life and character of each and every probable appointee of the elective official ahead of the latter's actual reelection.

Moreover, the unwarranted expansion of the Pascual doctrine would set a dangerous precedent as it would, as respondents posit, provide civil servants, particularly local government employees, with blanket immunity from administrative liability that would spawn and breed abuse in the bureaucracy.

Asserting want of conspiracy, petitioners implore this Court to sift through the evidence and re-assess the factual findings. This the Court cannot do, for being improper and immaterial.

Under Rule 45 of the Rules of Court, only questions of law may be raised, since the Court is not a trier of facts.34As a rule, the Court is not to review evidence on record and assess the probative weight thereof. In the present case, the appellate court affirmed the factual findings of the Office of the Ombudsman, which rendered the factual questions beyond the province of the Court.

Moreover, as correctly observed by respondents, the lack of conspiracy cannot be appreciated in favor of petitioners who were found guilty of simple neglect of duty, for if they conspired to act negligently, their infraction becomes intentional.35 There can hardly be conspiracy to commit negligence.36

Simple neglect of duty is defined as the failure to give proper attention to a task expected from an employee resulting from either carelessness or indifference.37 In the present case, petitioners fell short of the reasonable diligence required of them, for failing to exercise due care and prudence in ascertaining the legal requirements and fiscal soundness of the projects before stamping their imprimatur and giving their advice to their superior.

The appellate court correctly ruled that as municipal legal officer, petitioner Salumbides "failed to uphold the law and provide a sound legal assistance and support to the mayor in carrying out the delivery of basic services and provisions of adequate facilities when he advised [the mayor] to proceed with the construction of the subject projects without prior competitive bidding."38 As pointed out by the Office of the Solicitor General, to absolve Salumbides is tantamount to allowing with impunity the giving of erroneous or illegal advice, when by law he is precisely tasked to advise the mayor on "matters related to upholding the rule of law."39 Indeed, a legal

officer who renders a legal opinion on a course of action without any legal basis becomes no different from a lay person who may approve the same because it appears justified.

As regards petitioner Glenda, the appellate court held that the improper use of government funds upon the direction of the mayor and prior advice by the municipal legal officer did not relieve her of liability for willingly cooperating rather than registering her written objection40 as municipal budget officer.

Aside from the lack of competitive bidding, the appellate court, pointing to the improper itemization of the expense, held that the funding for the projects should have been taken from the "capital outlays" that refer to the appropriations for the purchase of goods and services, the benefits of which extend beyond the fiscal year and which add to the assets of the local government unit. It added that current operating expenditures like MOOE/RMF refer to appropriations for the purchase of goods and services for the conduct of normal local government operations within the fiscal year.41

In Office of the Ombudsman v. Tongson,42 the Court reminded the therein respondents, who were guilty of simple neglect of duty, that government funds must be disbursed only upon compliance with the requirements provided by law and pertinent rules.

Simple neglect of duty is classified as a less grave offense punishable by suspension without pay for one month and one day to six months. Finding no alleged or established circumstance to warrant the imposition of the maximum penalty of six months, the Court finds the imposition of suspension without pay for three months justified.

When a public officer takes an oath of office, he or she binds himself or herself to faithfully perform the duties of the office and use reasonable skill and diligence, and to act primarily for the benefit of the public. Thus, in the discharge of duties, a public officer is to use that prudence, caution, and attention which careful persons use in the management of their affairs.43

Public service requires integrity and discipline. For this reason, public servants must exhibit at all times the highest sense of honesty and dedication to duty. By the very nature of their duties and responsibilities, public officers and employees must faithfully adhere to hold sacred and render inviolate the constitutional principle that a public office is a public trust; and must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency.44

WHEREFORE, the assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 96889 areAFFIRMED with MODIFICATION, in that petitioners, Vicente Salumbides, Jr. and Glenda Araña, are suspended from office for three (3) months without pay.

SO ORDERED.