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C. Modes and kinds of appointment

1. MODES OR CLASSIFICATIONS

Appointments may be classified:

1) As to its nature; and,

2) As to the manner in which it is made. (General v. Urro, En Banc, G.R. No. 191560, 29 March 2011)

a. As to nature of appointment

As to its nature, appointments may either be:

1) Permanent appointments; or

2) Temporary (acting) appointments. (Ibid.)

1) Permanent appointments

The President shall exercise the power to appoint such officials as provided for in the Constitution and laws. (Section 16, E.O. 292, Administrative Code)

A permanent appointment shall be issued to a person who meets all the requirements for the positions to which he is being appointed, including the appropriate eligibility prescribed, in accordance with the provisions of law, rules and standards promulgated in pursuance thereof. (Section 25[a], P.D. 807, Civil Service Decree; Amores v. CSC, G.R. No. 170093, 29 April 2009)

Eligible – refers to a person who obtains a passing grade in a civil service examination or is granted a civil service eligibility and whose name is entered in the register of eligibles. (Section 3[h], P.D. 807, Civil Service Decree)

Register of Eligibles – The names of the competitors who pass an examination shall be entered in a register of eligibles arranged in the order of their general ratings and containing such information as the Commission may deem necessary. (Section 22, Ibid.)

a) CES eligibility

The possession of the required CES eligibility is that which will make an appointment in the career executive service a permanent one. (Ibid.)

b) With security of tenure

A permanent appointee can only be removed from office for cause; whereas a temporary appointee can be removed even without hearing or cause. (General v. Urro, supra.)

2) Temporary appointments

GENERAL RULE: The power to appoint vested in the President includes the power to make temporary appointments. (General v. Urro, supra.)

EXCEPTIONS:

1) He is otherwise specifically prohibited by the Constitution or by the law; or,

2) Where an acting appointment is repugnant to the nature of the office involved. (Ibid.)

An appointment is temporary where the appointee meets all the requirements for the position except only the appropriate civil service eligibility. (Amores v. CSC, supra.)

a) Purpose of temporary or acting appointment

The purpose of an acting or temporary appointment is to prevent a hiatus in the discharge of official functions by authorizing a person to discharge those functions pending the selection of a permanent or another appointee. An acting appointee accepts the position on the condition that he shall surrender the office once he is called to do so by the appointing authority. Therefore, his term of office is not fixed but endures at the pleasure of the appointing authority. His separation from the service does not import removal but merely the expiration of his term – a mode of termination of official relations that falls outside the coverage of the constitutional provision on security of tenure since no removal from office is involved. (General v. Urro, En Banc, supra.)

b) Requisities or qualifications

Under Section 25 of the Civil Service Decree, an appointee with a temporary status need not possess the civil service eligibility required by the position provided he meets the following qualifications:

1) It is necessary in the public interest to fill a vacancy;

2) There are no appropriate eligibles;

3) The temporary appointment shall not exceed twelve months; and

4) He may be replaced sooner if a qualified civil service eligible becomes available. (Torio v. CSC, En Banc, G.R. No. 99336, 09 June 1992)

No person, no matter how qualified and eligible he is for a certain position may be appointed to an office which is not vacant. There can be no appointment to a non-vacant position. The incumbent must first be legally removed or his appointment validly terminated. (Costin v. Quimbo, G.R. No. L-32271, 27 January 1983)

Where a public officer was illegally suspended and dismissed, legally speaking, his position never became vacant, hence there was no vacancy to which the present incumbent could be permanently appointed.  (Batungbakal v. National Development Company, En Banc, G.R. No. L-5127, 27 May 1953)

c) Conditions for appointing already in Government service

The President may temporarily designate an officer already in the government service or any other competent person to perform the functions of an office in the executive branch, appointment to which is vested in him by law, when:

1) The officer regularly appointed to the office is unable to perform his duties by reason of illness, absence or any other cause; or

2) There exists a vacancy; (Section 17[1], Ibid.)

The law permits, on many occasions, the appointment of non-CES eligibles to CES positions in the government in the absence of appropriate eligibles and when there is necessity in the interest of public service to fill vacancies in the government. But in all such cases, the appointment is at best merely temporary as it is said to be conditioned on the subsequent obtention of the required CES eligibility. (Amores v. CSC, supra.)

d) 12-month limitation

In no case shall a temporary designation exceed one (1) year. (Section 17[3], Ibid.)

e) Staggered term of office

A staggered term of office is not a statutory prohibition, direct or indirect, against the issuance of acting or temporary appointment. It does not negate the authority to issue acting or temporary appointments that the Administrative Code grants. (General v. Urro, En Banc, supra.)

In one case involving the Philippine Tourism Authority (PTA), the Court recognized the validity of temporary appointments in vacancies in offices whose holders are appointed on staggered basis. Under the charter of the PTA, the members of the PTA’s governing body are all presidential appointees whose terms of office are also staggered. This, notwithstanding, the Court sustained the temporary character of the appointment extended by the President in favor of the PTA General Manager, even if the law also fixes his term of office at six years unless sooner removed for cause. (Ibid.)

f) Compensation

The person designated shall receive the compensation attached to the position, unless he is already in the government service in which case he shall receive only such additional compensation as, with his existing salary, shall not exceed the salary authorized by law for the position filled. The compensation hereby authorized shall be paid out of the funds appropriated for the office or agency concerned. (Section 17[2], Ibid.)

g) Acquisition of eligibility, requires new appointment

The fact that a temporary appointee subsequently obtained an eligibility (e.g. testimonial eligibility) is of no moment. At the time he received his appointment, he had no such eligibility. As such what is required is a new appointment, not merely reinstatement. (Maturan v. Maglana, G.R. No. L-52091, 29 March 1982)

The fact that a temporary appointee passed the requisite Civil Service Examination after the termination of her temporary appointment is no reason to compel the appointing authority to reappoint her. Acquisition of civil service eligibility is not the sole factor for reappointment. Still to be considered by the appointing authority are: performance, degree of education, work experience, training, seniority, and, more important, as in case, whether or not the applicant enjoys the confidence and trust of the appointing power. (Gloria v. De Guzman, En Banc, G.R. No. 116183, 06 October 1995)

A permanent appointment is not a continuation of the temporary appointment—these are two distinct acts of the appointing authority. The fact that the appointees in the two appointments are one and the same person is purely incidental. (Torio v. CSC, En Banc, G.R. No. 99336, 09 June 1992)

h) Strict construction of power to appoint

The power to appoint is essentially executive in nature and the limitations on or qualifications in the exercise of this power are strictly construed. (General v. Urro, En Banc, supra.)

i) CSC cannot substitute discretion of appointing authority

The matter of converting such a temporary appointment to a permanent one is addressed to the sound discretion of the appointing authority. Respondent CSC cannot direct the appointing authority to make such an appointment if it is not so disposed. (Romualdez III v. CSC, En Banc, G.R. Nos. 94878-94881, 15 May 1991)

j) No quo warranto for acting appointee against new appointee

An acting appointee has no cause of action for quo warranto against the new appointee. Since the petitioner merely holds an acting appointment, he clearly does not have a cause of action to maintain a quo warranto case. The essence of an acting appointment is its temporariness and its consequent revocability at any time by the appointing authority. The petitioner in a quo warranto proceeding who seeks reinstatement to an office, on the ground of usurpation or illegal deprivation, must prove his clear right to the office for his suit to succeed; otherwise, his petition must fail. (General v. Urro, supra.)

b. As to the manner in which appointment is made

As to the manner in which appointment is made, it may either be:

1) Regular appointments; or

2) Ad interim appointments. (Ibid.)

1) Regular appointments

A regular appointment – is one made while Congress is in session. (Ibid.)

2) Ad interim appointments

An ad interim appointment – is one issued during the recess of Congress. (Ibid.)

In strict terms, presidential appointments that require no confirmation from the Commission on Appointments cannot be properly characterized as either a regular or an ad interim appointment. (Ibid.)

b) Commission on Appointments

(1) If disapproved

An ad interim appointee disapproved by the Commission on Appointments can no longer be extended a new appointment. The disapproval is a final decision of the Commission on Appointments in the exercise of its checking power on the appointing authority of the President. The disapproval is a decision on the merits, being a refusal by the Commission on Appointments to give its consent after deliberating on the qualifications of the appointee. Since the Constitution does not provide for any appeal from such decision, the disapproval is final and binding on the appointee as well as on the appointing power. In this instance, the President can no longer renew the appointment not because of the constitutional prohibition on reappointment, but because of a final decision by the Commission on Appointments to withhold its consent to the appointment. (Matibag v. Benipayo, En Banc, G.R. No. 149036, 02 April 2002)

(2) If by-passed; Re-appointment, allowed

An ad interim appointment that is by-passed because of lack of time or failure of the Commission on Appointments to organize is another matter. A by-passed appointment is one that has not been finally acted upon on the merits by the Commission on Appointments at the close of the session of Congress. There is no final decision by the Commission on Appointments to give or withhold its consent to the appointment as required by the Constitution. Absent such decision, the President is free to renew the ad interim appointment of a by-passed appointee. (Ibid.)

c) Ad interim appointment, a regular appointment

An ad interim appointment is a permanent appointment because it takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office. The fact that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. The Constitution itself makes an ad interim appointment permanent in character by making it effective until disapproved by the Commission on Appointments or until the next adjournment of Congress. (Matibag v. Benipayo, En Banc, G.R. No. 149036, 02 April 2002)

c. Acceptance of appointment, required

Acceptance is indispensable to complete an appointment. The fact that one’s appointment was confirmed by the Civil Service Commission does not complete it since confirmation or attestation by the Commission, although an essential part of the appointing process, serves merely to assure the eligibility of the appointee. (Javier v. Reyes, G.R. No. L-39451, 20 February 1989)

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