Matibag vs.

Benipayo

Facts:

Herein petitioner Matibag was appointed by the COMELEC en banc as “Acting Director IV” of the EID and
was reappointed twice for the same position in a temporary capacity. Meanwhile, then PGMA also made
appointments, ad interim, of herein respondents Benipayo, Borra and Tuason, as COMELEC Chairman
and Commissioners, respectively. Their appointments were renewed thrice by PGMA, the last one
during the pendency of the case, all due to the failure of the Commission of Appointments to act upon
the confirmation of their appointments.

Respondent Benipayo, acting on his capacity as COMELEC Chairman, issued a memorandum removing
petitioner as Acting Director IV and reassigning her to the Law Department. Petitioner requested for
reconsideration but was denied. Thus, petitioner filed the instant petition questioning the appointment
and the right to remain in office of herein respondents, claiming that their ad interim  appointments
violate the constitutional provisions on the independence of the COMELEC, as well as on the
prohibitions on temporary appointments and reappointments of its Chairman and members.

Issue:

(1) Whether the ad interim appointments made by PGMA were prohibited under the Constitution

(2) Whether the ad interim appointments made by PGMA were temporary in character

Ruling: No.

(1) While the Constitution mandates that the COMELEC “shall be independent”, this provision should be
harmonized with the President’s power to extend ad interim  appointments. To hold that the
independence of the COMELEC requires the Commission on Appointments to first confirm ad
interim  appointees before the appointees can assume office will negate the President’s power to
make ad interim  appointments. This is contrary to the rule on statutory construction to give meaning
and effect to every provision of the law. It will also run counter to the clear intent of the framers of the
Constitution. The original draft of Section 16, Article VII of the Constitution – on the nomination of
officers subject to confirmation by the Commission on Appointments – did not provide for ad interim
appointments. The original intention of the framers of the Constitution was to do away with ad
interim  appointments because the plan was for Congress to remain in session throughout the year
except for a brief 30-day compulsory recess. However, because of the need to avoid disruptions in
essential government services, the framers of the Constitution thought it wise to reinstate the
provisions of the 1935 Constitution on ad interim  appointments. Clearly, the reinstatement in the
present Constitution of the ad interim  appointing power of the President was for the purpose of
avoiding interruptions in vital government services that otherwise would result from prolonged
vacancies in government offices, including the three constitutional commissions.

Evidently, the exercise by the President in the instant case of her constitutional power to make ad
interim  appointments prevented the occurrence of the very evil sought to be avoided by the second
paragraph of Section 16, Article VII of the Constitution. This power to make ad interim  appointments is
lodged in the President to be exercised by her in her sound judgment. Under the second paragraph of
Section 16, Article VII of the Constitution, the President can choose either of two modes in appointing
officials who are subject to confirmation by the Commission on Appointments. First, while Congress is in
session, the President may nominate the prospective appointee, and pending consent of the
Commission on Appointments, the nominee cannot qualify and assume office. Second, during the recess
of Congress, the President may extend an ad interim  appointment which allows the appointee to
immediately qualify and assume office. Whether the President chooses to nominate the prospective
appointee or extend an ad interim  appointment is a matter within the prerogative of the President
because the Constitution grants her that power. This Court cannot inquire into the propriety of the
choice made by the President in the exercise of her constitutional power, absent grave abuse of
discretion amounting to lack or excess of jurisdiction on her part, which has not been shown in the
instant case.

In fine, we rule that the ad interim appointments extended by the President to Benipayo, Borra and
Tuason, as COMELEC Chairman and Commissioners, respectively, do not constitute temporary or acting
appointments prohibited by Section 1 (2), Article IX-C of the Constitution.

(2) 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. The second paragraph of Section 16, Article VII of the Constitution provides as follows:

“The President shall have the power to make appointments during the recess of the Congress, whether
voluntary or compulsory, but such appointments shall be effective only until  disapproval by the
Commission on Appointments or until the next adjournment of the Congress.”

Thus, the ad interim  appointment remains effective until  such disapproval or next adjournment,
signifying that it can no longer be withdrawn or revoked by the President.

While an ad interim appointment is permanent and irrevocable except as provided by law, an

In the instant case, the President did in fact appoint permanent Commissioners to fill the vacancies in
the COMELEC, subject only to confirmation by the Commission on Appointments. Benipayo, Borra and
Tuason were extended permanent appointments during the recess of Congress. They were not
appointed or designated in a temporary or acting capacity. The ad interim appointments of Benipayo,
Borra and Tuason are expressly allowed by the Constitution which authorizes the President, during the
recess of Congress, to make appointments that take effect immediately.
Abella Jr. vs. CSC

Facts:

Petitioner Francisco A. Abella, Jr., a lawyer, retired from the Export Processing Zone Authority (EPZA),
now the Philippine Economic Zone Authority (PEZA), on July 1, 1996 as Department Manager of the
Legal Services Department. He held a civil service eligibility for the position of Department Manager,
having completed the training program for Executive Leadership and Management in 1982 under the
Civil Service Academy, pursuant to CSC Resolution No. 850 dated April 16, 1979, which was then the
required eligibility for said position.

On May 31, 1994, the Civil Service Commission issued Memorandum Circular No. 21, series of 1994 with
Section 4 enumerating the positions covered by the Career Executive Service (CES). These positions
require Career Service Executive Eligibility (CSEE) as a requirement for permanent appointment. But, this
provides that incumbents to CES shall retain their permanent appointment but upon promotion or
transfer to other CES positions, they shall be under temporary status until they qualify.

Two years after his retirement, petitioner was hired by the Subic Bay Metropolitan Authority (SBMA) on
a contractual basis. On January 1, 1999, petitioner was issued by SBMA a permanent employment as
Department Manager III, Labor and Employment Center. However, when said appointment was
submitted to respondent Civil Service Commission Regional Office No. III, it was disapproved on the
ground that petitioner’s eligibility was not appropriate. Petitioner was advised by SBMA of the
disapproval of his appointment. In view thereof, petitioner was issued a temporary appointment as
Department Manager III, Labor and Employment Center, SBMA on July 9, 1999. Petitioner appealed the
disapproval of his permanent appointment by respondent to the Civil Service Commission, which issued
Resolution No. 000059, dated January 10, 2000, affirming the action taken by respondent. Petitioner’s
motion for reconsideration thereof was denied by the CSC in Resolution No. 001143 dated May 11,
2000.

Petitioner appealed to the Court of Appeals but it ruled that he did not have legal standing to question
the disapproval and was not the real party in interest.

Issue/s:

Whether the petitioner has the personality and the real party in interest to question the disapproval of
his appointment.

Whether the issuance of Section 4 of CSC Memorandum Circular No. 21, s. 1994, which deprived
petitioner his property right without due process of law, is constitutional.

Whether the CSC correctly denied his appointment.

Ruling:

A.      Personality and real party in interest.

The CSC’s disapproval of an appointment is a challenge to the exercise of the appointing authority’s
discretion. The appointing authority must have the right to contest the disapproval. While there is
justification to allow the appointing authority to challenge the CSC disapproval, there is none to
preclude the appointee from taking the same course of action. Aggrieved parties, including the CSC,
should be given the right to file motions for reconsideration or to appeal. On this point, the concepts of
“legal standing” and “real party in interest” become relevant.

The question in legal standing is whether such parties have ‘alleged such a personal stake in the
outcome of the controversy to assure that concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illumination of difficult constitutional questions.’ If
legal standing is granted to challenge the constitutionality or validity of a law or governmental act
despite the lack of personal injury on the challenger’s part, then more so should petitioner be allowed to
contest the CSC Order disapproving his appointment. Clearly, the petitioner was prejudiced by the
disapproval, since he could not continue his office. Although petitioner had no vested right to the
position, it was his eligibility that was being questioned. Corollary to this point, he should be granted the
opportunity to prove his eligibility. He had a personal stake in the outcome of the case, which justifies
his challenge to the CSC act that denied his permanent appointment.

A real party in interest is one who would be benefited or injured by the judgment, or one entitled to the
avails of the suit. “Interest” within the meaning of the rule means material interest or an interest in
issue and to be affected by the decree, as distinguished from mere interest in the question involved or a
mere incidental interest. Otherwise stated, the rule refers to a real or present substantial interest as
distinguished from a mere expectancy; or from a future, contingent, subordinate, or consequential
interest. As a general rule, one who has no right or interest to protect cannot invoke the jurisdiction of
the court as a party-plaintiff in an action.

Although the earlier discussion demonstrates that the appointing authority is adversely affected by the
CSC’s Order and is a real party in interest, the appointee is rightly a real party in interest too. He is also
injured by the CSC disapproval, because he is prevented from assuming the office in a permanent
capacity. Moreover, he would necessarily benefit if a favorable judgment is obtained, as an approved
appointment would confer on him all the rights and privileges of a permanent appointee.

B.      Due Process

Civil Service laws have expressly empowered the CSC to issue and enforce rules and regulations to carry
out its mandate. In the exercise of its authority, the CSC deemed it appropriate to clearly define and
identify positions covered by the Career Executive Service. Logically, the CSC had to issue guidelines to
meet this objective, specifically through the issuance of the challenged Circular.

The challenged Circular did not revoke petitioner’s ELM eligibility. He was appointed to a CES position;
however, his eligibility was inadequate. Eligibility must necessarily conform to the requirements of the
position, which in petitioner’s case was a Career Service Executive Eligibility (CSEE). The challenged
Circular protects the rights of incumbents as long as they remain in the positions to which they were
previously appointed. They are allowed to retain their positions in a permanent capacity,
notwithstanding the lack of CSEE. Clearly, the Circular recognizes the rule of prospectivity of regulations;
hence, it is not an post facto law or a bill of attainder.
In the present case, the government service of petitioner ended when he retired in 1996; thus, his right
to remain in a CES position, notwithstanding his lack of eligibility, also ceased. Upon his reemployment
years later as department manager III at SBMA in 2001, it was necessary for him to comply with the
eligibility prescribed at the time for that position.

On petitioner’s averment that he was not afforded due process for CSC’s alleged failure to notify him of
a hearing relating to the issuance of the challenged Circular, is not convincing. The issuance of the
circular was an exercise of a quasi-legislative function as such, prior notice to and hearing of every
affected party, as elements of due process, are not required since there is no determination of past
events or facts that have to be established or ascertained. As a general rule, prior notice and hearing are
not essential to the validity of rules or regulations promulgated to govern future conduct.

C.      Whether CSC correctly denied his appointment

Since petitioner had no CES eligibility, the CSC correctly denied his permanent appointment. The
appointee need not have been previously heard, because the nature of the action did not involve the
imposition of an administrative disciplinary measure. The CSC, in approving or disapproving an
appointment, merely examines the conformity of the appointment with the law and the appointee’s
possession of all the minimum qualifications and none of the disqualification. In sum, while petitioner
was able to demonstrate his standing to appeal the CSC Resolutions to the courts, he failed to prove his
eligibility to the position he was appointed to.

The Petition was GRANTED insofar as it seeks legal standing for petitioner, but DENIED insofar as it prays
for the reversal of the CSC Resolutions disapproving his appointment as department manager III of the
Labor and Employment Center, Subic Bay Metropolitan Authority.

Dosch vs NLRC

FACTS: Petitioner is an American citizen and the resident Manager of Northwest Airlines, Inc. in the
Philippines. He had been with the respondent company for 11 years, 9 of which was served in the
Philippines as Northwest manager in Manila. On August 18, 1975 he received an inter-office
communication from R.C. Jenkins, Northwest's Vice President for Orient Region based in Tokyo,
promoting him to the position of Director of International Sales and transferring him to Northwest's
General Office in Minneapolis, U.S.A., effective the same day. Petitioner, acknowledging receipt of the
above memo, expressed appreciation for the promotion and at the same time regretted that for
personal reasons and reasons involving his family (living in the Philippines), he is unable to accept a
transfer from the Philippines. 

On September 9, 1975, the Vice-President for the Orient Region of Northwest advised petitioner that "in
view of the foregoing, your status as an employee of the company ceased on the close of business on
August 31, 1975" and "the company therefore considers your letter of August 28, 1975, to be a
resignation without notice." On September 16, 1975, Northwest filed a Report on Resignation of
Managerial Employee i.e., Helmut Dosch before the Department of Labor, copy thereof furnished
petitioner. The Report was contested by the petitioner and the parties were conciliated by Regional
Office No. IV, Manila but failed to agree on a settlement. The case was thus certified to the Executive
Labor 

Arbiter, National Labor Relations Commission, for compulsory arbitration. 

ISSUE: Whether or not the petitioner is considered resigned from his employment. 

HELD: The SC agree with the Labor Arbiter that petitioner did not resign or relinquish his position as
Manager-Philippines, Indeed, the letter sent by petitioner to R.C. Jenkins cannot be considered as a
resignation as petitioner indicated therein clearly that he preferred to remain as Manager-Philippines of
Northwest. The SC treated the Jenkins letter as directing the promotion of the petitioner from his
position as Philippine manager to Director of International Sales in Minneapolis, U.S.A. It is not merely a
transfer order alone but as the Solicitor General correctly observes, "it is more in the nature of a
promotion that a transfer, the latter being merely incidental to such promotion." The inter-office
communication of Vice President Jenkins is captioned "Transfer" but it is basically and essentially a
promotion for the nature of an instrument is characterized not by the title given to it but by its body and
contents. The communication informed the petitioner that effective August 18, 1975, he was to be
promoted to the position of Director of International Sales, and his compensation would be upgraded
and the payroll accordingly adjusted. 

Petitioner was, therefore, advanced to a higher position and rank and his salary was increased and that
is a promotion. It has been held that promotion denotes a scalar ascent of an officer or an employee to
another position, higher either in rank or salary. 

A transfer is a movement from one position to another of equivalent rank, level or salary, without break
in the service. Promotion, on the other hand, is the advancement from one position to another with an
increase in duties and responsibilities as authorized by law, and usually accompanied by an increase in
salary, Whereas, promotion denotes a scalar ascent of a senior officer or employee to another position,
higher either in rank or salary, transfer refers to lateral movement from one position to another, of
equivalent rank, level or salary. There is no law that compels an employee to accept a promotion, as a
promotion is in the nature of a gift or a reward, which a person has a right to refuse. When petitioner
refused to accept his promotion to Director of International Sales, he was exercising a right and he
cannot be punished for it as qui jure suo utitur neminem laedit. He who uses his own legal right injures
no one. 

Assuming for the sake of argument that the communication or letter of Mr. Jenkins was basically a
transfer, under the particular and peculiar facts obtaining in the case at bar, petitioner's inability or his
refusal to be transferred was not a valid cause for dismissal. While it may be true that the right to
transfer or reassign an employee is an employer's exclusive right and the prerogative of management,
such right is not absolute. The right of an employer to freely select or discharge his employee is limited
by the paramount police power for the relations between capital and labor are not merely contractual
but impressed with public interest. And neither capital nor labor shall act oppressively against each
other. 

There can be no dispute that the constitutional guarantee of security of tenure mandated under the
Constitution applies to all employees and laborers, whether in the government service or in the private
sector. The fact that petitioner is a managerial employee does not by itself exclude him from the
protection of the constitutional guarantee of security of tenure. Even a manager in a private concern has
the right to be secure in his position, to decline a promotion where, although the promotion carries an
increase in his salary and rank but results in his transfer to a new place of assignment or station and
away from his family. Such an order constitutes removal without just cause and is illegal. Nor can the
removal be justified on the ground of loss of confidence as now claimed by private respondent
Northwest, insisting as it does that by petitioner's alleged contumacious refusal to obey the transfer
order, said petitioner was guilty of insubordination.